Exhibit 10.3
CHURCH & XXXXXX CO., INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of the
14th day of June 2000, by and between USA Detergents, Inc., a Delaware
corporation (the "COMPANY"), and Church & Xxxxxx Co., Inc., a Delaware
corporation (the "INVESTOR").
A. The Company and the Investor are parties to that certain Stock Purchase
Agreement, of even date herewith (the "STOCK PURCHASE AGREEMENT");
B. The Investor has also entered into a Put & Call Agreement, of even date
herewith, with Xxxxxxxxx X. Xxxxx (the "PUT & CALL AGREEMENT"); and
C. The parties hereto desire to enter into this Agreement in order to set
forth the registration rights of the Investor and its transferees and assignees
with respect to the Company's common stock (the "COMMON STOCK") purchased by the
Investor under the Stock Purchase Agreement and the Put & Call Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms will
have the following meanings:
(a) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(b) "FORM S-3" means such form under the Securities Act as in effect on
the date hereof or any registration form under the Securities Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents previously filed by the Company with
the SEC.
(c) "HOLDER(S)" means any person owning or having the right to acquire
Registrable Securities or any assignee thereof.
(d) "REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(e) "REGISTRABLE SECURITIES" means (i) any of the Company's shares of
Common Stock purchased by the Investor under the Stock Purchase Agreement or the
Put & Call Agreement, and (ii) any shares of Common Stock issued (or issuable
upon the conversion or exercise of any warrant, right or other security which is
issued) as a dividend, in connection with a stock split or in connection with
any other distribution with respect to, or in exchange for or in replacement of
the shares referenced in (i), above.
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(f) The number of shares of "REGISTRABLE SECURITIES THEN OUTSTANDING"
means the sum of (i) the number of shares of Common Stock outstanding which are
Registrable Securities, and (ii) the number of shares of Common Stock which are
Registrable Securities issuable pursuant to then exercisable or convertible
securities.
(g) "SEC" means the Securities and Exchange Commission.
(h) "SECURITIES ACT" means the Securities Act of 1933, as amended.
2. REQUEST FOR REGISTRATION.
(a) If the Company receives, at any time after the date hereof, a
written request from the Holders of a majority of the Registrable Securities
then outstanding that the Company file a registration statement under the
Securities Act covering the registration of at least 25% of the Registrable
Securities then outstanding (or a lesser percent if the anticipated aggregate
offering price, net of underwriting discounts and commissions, would exceed $5
million), then the Company shall:
(i) within ten days following the receipt thereof, give written
notice of such request to all Holders; and
(ii) effect as soon as practicable the registration under the
Securities Act of all Registrable Securities which the Holders request to be
registered, subject to the limitations of Section 2(b).
(b) If the Holders initiating the registration request hereunder
("INITIATING HOLDERS") intend to distribute the Registrable Securities covered
by their request by means of an underwriting, they shall so advise the Company
as a part of their request made pursuant to Section 2(a) and the Company shall
include such information in the written notice referred to in Section 2(a). The
underwriter will be selected by the Company and must be reasonably acceptable to
a majority in interest of the Initiating Holders. In such event, the right of
any Holder to include its Registrable Securities in such registration will be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the Initiating Holders
and such Holder) to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company as provided in Section 4(e)) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting. Notwithstanding any other provision of this Section 2, if the
underwriter advises the Initiating Holders in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Initiating Holders shall so advise all Holders of Registrable Securities which
would otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting will be
allocated among all Holders thereof, including the Initiating Holders, in
proportion (as nearly as practicable) to the amount of Registrable Securities of
the Company owned by each Holder.
(c) In addition, the Company will not be obligated to effect, or to
take any action to effect, any registration pursuant to this Section 2:
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(i) After the Company has effected two registrations pursuant to
this Section 2 and such registrations have been declared or ordered effective;
(ii) During the period starting with the date sixty calendar days
prior to the Company's good faith estimate of the date of filing of, and ending
on a date 180 calendar days after the effective date of, a registration subject
to Section 3 hereof, provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective;
(iii) If the Company and the Initiating Holders are unable to
obtain the commitment of an underwriter satisfactory to the Company in the event
the Initiating Holders intend to distribute their Registrable Shares by means of
an underwritten offering;
(iv) If the Initiating Holders propose to dispose of shares of
Registrable Securities that may be immediately registered on Form S-3 pursuant
to a request made pursuant to Section 12 below;
(v) If the Company furnishes to the Initiating Holders a
certificate signed by the President or Chief Executive Officer of the Company
stating that, in the good faith judgment of the Board of Directors of the
Company, it would not be in the best interests of the Company for a registration
to be effected as requested under Section 2 hereof, provided that the Company
may only utilize this right of deferral once, with respect to each request, to
defer the filing of such registration for a period of not more than 120 days
from the request of the Initiating Holders; or
(vi) In any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to service of
process in effecting such registration, qualification or compliance.
3. COMPANY REGISTRATION. If (but without any obligation to do so) the
Company proposes to register (including for this purpose a registration effected
by the Company for stockholders other than the Holders) any of its stock or
other equity securities under the Securities Act in connection with the public
offering of such securities solely for cash (other than a registration on Form
S-4 , a registration relating solely to the sale of securities to participants
in a Company stock plan, a registration on any form which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities or a
registration in which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities which are also being registered),
the Company shall, at such time, promptly give each Holder written notice of
such registration. Upon the written request of each Holder given within twenty
calendar days after mailing of such notice by the Company, the Company shall,
subject to the provisions of Section 8, cause to be registered under the
Securities Act all of the Registrable Securities that each such Holder has
requested to be registered.
4. OBLIGATIONS OF THE COMPANY. Whenever required under this Agreement to
effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
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(a) Prepare and file with the SEC a registration statement with respect
to such Registrable Securities and use all commercially reasonable efforts to
cause such registration statement to become effective, and, upon the request of
the Holders of a majority of the Registrable Securities registered thereunder,
keep such registration statement effective for a period of up to 120 calendar
days or until the distribution contemplated in the Registration Statement has
been completed; provided, however, that (i) such 120-day period will be extended
for a period of time equal to the period the Holder refrains from selling any
securities included in such registration at the request of an underwriter of
Common Stock (or other securities) of the Company; and (ii) in the case of any
registration of Registrable Securities on Form S-3 which are intended to be
offered on a continuous or delayed basis, such 120-day period will be extended,
if necessary, to keep the registration statement effective until all such
Registrable Securities are sold, provided that Rule 415, or any successor rule
under the Securities Act, permits an offering on a continuous or delayed basis.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
(d) Use all reasonable commercial efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions in the United States as may be reasonably
requested by the Holders; provided that the Company will not be required in
connection therewith or as a condition thereto to qualify to do business,
subject itself to taxation or execute a general consent to service of process in
any such states or jurisdictions where it has not already done so.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement 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, 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.
(g) Cause all such Registrable Securities registered pursuant hereunder
to be listed on each securities exchange on which similar securities issued by
the Company are then listed.
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(h) Provide a transfer agent and registrar for all Registrable
Securities registered hereunder and a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such registration
statement.
(i) Furnish, at the request of any Holder requesting registration of
Registrable Securities under this Agreement, on the date that such Registrable
Securities are delivered to the underwriters for sale in connection with a
registration under this Agreement, if such securities are being sold through
underwriters, or, if such securities are not being sold through underwriters, on
the date that the registration statement with respect to such securities becomes
effective, (A) an opinion, dated such date, of the counsel representing the
Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Holders requesting registration of
Registrable Securities and (B) a letter dated such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities.
5. HOLDERS TO FURNISH INFORMATION. It is a condition precedent to the
obligations of the Company to take any action under this Agreement with respect
to the Registrable Securities of any selling Holder that such Holder furnish to
the Company such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as may be
required to effect the registration of such Holder's Registrable Securities.
6. EXPENSES OF DEMAND REGISTRATION. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Section 2, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company (including fees and disbursements
of counsel for the Company in its capacity as counsel to the selling Holders
hereunder; if Company counsel does not make itself available for this purpose,
the Company shall pay the reasonable fees and disbursements of one counsel for
the selling Holders) will be borne by the Company; provided, however, that the
Company will not be required to pay for any expenses of any registration begun
pursuant to Section 2 if the registration request is subsequently withdrawn at
the request of the Holders of a majority of the Registrable Securities to be
registered (in which case all participating Holders shall bear such expenses),
unless the Holders of a majority of the Registrable Securities agree to forfeit
their right to one demand registration pursuant to Section 2.
7. EXPENSES OF COMPANY REGISTRATION. The Company shall bear and pay all
expenses incurred in connection with any registration, filing or qualification
of Registrable Securities with respect to the registrations pursuant to Section
3 for each Holder (which right may be assigned as provided in Section 13),
including without limitation all registration, filing, and qualification fees,
printers and accounting fees relating or apportionable thereto and the fees and
disbursements of counsel for the Company in its capacity as counsel to the
selling Holders hereunder (if Company counsel does not make itself available for
this purpose, the Company will pay the reasonable fees and disbursements of one
counsel for the selling Holders selected by them), but excluding underwriting
discounts and commissions relating to Registrable Securities.
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8. UNDERWRITING REQUIREMENTS. In connection with any offering involving an
underwriting of shares of the Company's capital stock, the Company will not be
required under Section 3 to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it (or by other persons
entitled to select the underwriters), and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering by the Company. If the total amount of securities, including
Registrable Securities, requested by stockholders to be included in such
offering exceeds the amount of securities to be sold other than by the Company
that the underwriters determine in their sole discretion is compatible with the
success of the offering, then the Company will be required to include in the
offering only that number of such securities, including Registrable Securities,
which the underwriters determine in their sole discretion will not jeopardize
the success of the offering (the securities so included to be apportioned pro
rata among the selling stockholders according to the total amount of securities
entitled to be included therein owned by each selling stockholder or in such
other proportions as shall mutually be agreed by such selling stockholders).
9. DELAY OF REGISTRATION. No Holder has any right to obtain or seek an
injunction restraining or otherwise delaying any such registration as the result
of any controversy that might arise with respect to the interpretation or
implementation of this Agreement.
10. INDEMNIFICATION. In the event any Registrable Securities are included
in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company shall indemnify each
Holder, any underwriter (as defined in the Securities Act) for such Holder and
each person, if any, who controls such Holder 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 they may become subject under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively, a "VIOLATION"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any state securities law; and the Company will pay to each
such Holder, underwriter or controlling person, as incurred, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this Section 10(a) will not apply to
amounts paid in settlement of any such loss, claim, damage, liability, or action
if such settlement is effected without the prior written consent of the Company
(which consent will not be unreasonably withheld), nor will the Company be
liable in any such case for any such loss, claim, damage, liability, or action
to the extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by any such Holder, underwriter or
controlling person. The indemnity agreement contained in this Section 10(a)
shall also not
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apply to any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon the use by any selling Holder of a preliminary or
final prospectus as to which the Company has provided notice to such selling
Holder pursuant to Section 4(f) hereof, but only to the extent that such use
occurs after the actual receipt of such notice by the selling Holder.
(b) To the extent permitted by law, each selling Holder shall indemnify
the Company, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter, any other Holder selling
securities in such registration statement and any controlling person of any such
underwriter or other Holder, against any losses, claims, damages, or liabilities
(joint or several) to which any of the foregoing persons may become subject,
under the Securities Act, the Exchange Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereto) arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by such Holder expressly for
use in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this Section 10(b), in connection with
investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this Section 10(b)
will not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Holder (which consent will not be unreasonably withheld); and provided, that, in
no event will any indemnity under this Section 10(b) exceed the gross proceeds
from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
10 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 10, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party will have the right to participate in, and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) will have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, 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 such indemnified party and any other party represented by such
counsel in such proceeding.
(d) If the indemnification provided for in this Section 10 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage, or expense referred to herein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such loss, liability, claim, damage, or expense in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the Violation(s) that resulted in such loss, liability, claim, damage, or
expense as well as any other relevant equitable considerations; provided,
however, that the contribution agreement contained in this Section 10(d) will
not apply
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to amounts paid in settlement of any such loss, claim, damage, liability or
action if such settlement is effected without the prior written consent of the
indemnifying party, which consent shall not be unreasonably withheld. The
relative fault of the indemnifying party and of the indemnified party will be
determined by reference to, among other things, whether the Violation(s) relates
to information supplied by the indemnifying party or by the indemnified party
and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such Violation(s).
(e) The obligations of the Company and the Holders under this Section
10 will survive the completion of any offering of Registrable Securities in a
registration statement under this Agreement, and otherwise.
11. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view to making
available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit a Holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company shall:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times beginning 90 days after the
effective date of the first registration statement filed by the Company for the
offering of its securities to the general public;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the Exchange Act, as is necessary to enable the
Holders to utilize Form S-3 for the sale of their Registrable Securities;
(c) file with the SEC in a timely manner all reports and other
documents required to be filed by the Company under the Securities Act and the
Exchange Act; and
(d) furnish to any Holder, so long as such Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144 (at any time
beginning 90 days after the effective date of the first registration statement
filed by the Company), the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), or that it
qualifies as a registrant whose securities may be resold pursuant to Form S-3
(at any time after it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested in
availing any Holder of any rule or regulation of the SEC which permits the
selling of any Registrable Securities without registration or pursuant to such
form.
12. FORM S-3 REGISTRATION.
(a) In case the Company receives from any Holder or Holders a written
request or requests that the Company effect a registration on Form S-3 and any
related qualification or compliance with respect to all or a part of the
Registrable Securities owned by such Holder or Holders, the Company shall:
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(i) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders; and
(ii) as soon as practicable, use all reasonable commercial efforts
to effect such registration and all such qualifications and compliances as may
be so requested and as would permit or facilitate the sale and distribution of
all or such portion of such Holder's or Holders' Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any other Holder or Holders joining in such request as are
specified in a written request given within 15 calendar days after receipt of
such written notice from the Company.
(b) Notwithstanding anything herein to the contrary, the Company will
not be obligated to effect any such registration, qualification or compliance
pursuant to this Section 12:
(i) If Form S-3 (or any successor form) is not available for such
offering by the Holders;
(ii) If the Company has, within the 24 month period preceding the
date of such request, already effected two registrations on Form S-3 for the
Holders pursuant to this Section 12;
(iii) If the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
price to the public (net of any underwriters' discounts or commissions) of less
than $3 million;
(iv) If the Company furnishes to the Initiating Holders a
certificate signed by the President or Chief Executive Officer of the Company
stating that, in the good faith judgment of the Board of Directors of the
Company, it would not be in the best interests of the Company for such Form S-3
Registration to be effected as requested under this Section 12, provided that
the Company may only utilize this right of deferral once, with respect to each
request, to defer the filing of the Form S-3 registration for a period of not
more than 120 days from the request of the Initiating Holders; or
(iv) In any particular jurisdiction in which the Company would be
required to qualify to do business, subject itself to taxation or execute a
general consent to service of process in effecting such registration,
qualification or compliance unless it has already done so in such jurisdiction.
(c) Subject to the foregoing, the Company shall file a registration
statement covering the Registrable Securities and other securities so requested
to be registered as soon as practicable after receipt of the request or requests
of the Holders. All expenses incurred in connection with a registration
requested pursuant to this Section 12, including (without limitation) all
registration, filing, qualification, printer's and accounting fees and the
reasonable fees and disbursements of one counsel for the selling Holder or
Holders and counsel for the Company, but excluding any underwriters' discounts
or commissions associated with Registrable Securities, shall be borne by the
Company. Registrations effected pursuant to this Section 12
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will not be counted as demands for registration or registrations effected
pursuant to Sections 2 or 3, respectively.
13. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to
register Registrable Securities pursuant to this Agreement may be assigned (but
only with all related obligations) by a Holder to a transferee or assignee of
such securities who, after such assignment or transfer, holds at least 100,000
Registrable Securities (subject to appropriate adjustment for stock splits,
stock dividends, combinations and other recapitalizations), provided: (a) the
Company is, within a reasonable time after such transfer, furnished with written
notice of the name and address of such transferee or assignee and the securities
with respect to which such registration rights are being assigned; (b) such
transferee or assignee agrees in writing to be bound by and subject to the terms
and conditions of this Agreement, including without limitation the provisions of
Section 14 below; and (c) such assignment will be effective only if immediately
following such transfer the further disposition of such securities by the
transferee or assignee is restricted under the Securities Act. For the purposes
of determining the number of Registrable Securities held by a transferee or
assignee, the holdings of transferees and assignees of a partnership who are
partners or retired partners of such partnership (including spouses and
ancestors, lineal descendants and siblings of such partners or spouses who
acquire Registrable Securities by gift, will or intestate succession) will be
aggregated together and with the partnership; and provided that all assignees
and transferees who would not qualify individually for assignment of
registration rights may have a single attorney-in-fact for the purpose of
exercising any such rights, receiving notices or taking any action under this
Agreement.
14. MARKET STAND-OFF. During the period of duration specified by the
Company or an underwriter of Common Stock or other securities of the Company,
following the date of sale to the public pursuant to a registration statement of
the Company filed under the Securities Act, the Investor will not, to the extent
requested by the Company and such underwriter, directly or indirectly, sell,
offer to sell, contract to sell (including, without limitation, any short sale),
grant any option to purchase or otherwise transfer or dispose of (other than to
donees who agree to be similarly bound) any securities of the Company held by it
at any time during such period except Common Stock included in such registration
(the "MARKET STAND-OFF"); provided, however, that such Market Stand-Off period
does not exceed 180 days. Notwithstanding the foregoing, the obligations
described in this Section 14 will not apply to a registration relating solely to
employee benefit plans on Form S-1 or Form S-8 or similar forms which may be
promulgated in the future, or a registration relating solely to an SEC Rule 145
transaction on Form S-4 or similar forms which may be promulgated in the future.
15. TERMINATION OF REGISTRATION RIGHTS. No Holder will be entitled to
exercise any right provided for in this Agreement after such time that all
Registrable Securities held by such Holder can be sold within a given three
month period without compliance with the registration requirements of the
Securities Act pursuant to Rule 144.
16. ASSURANCES. The Company shall take all actions required to ensure that
the rights granted to the Investor under this Agreement are effective and that
the Holders enjoy the benefits thereof. The Company will not, by any voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
to be performed hereunder by the Company, but will at all times in good faith
assist in the carrying out of all of the provisions of this Agreement and in the
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taking of all actions as may be necessary or appropriate in order to protect the
rights provided hereunder against impairment.
17. MISCELLANEOUS.
(a) Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement will inure to the benefit of
and be binding upon the respective successors and assigns of the parties
(including transferees of any Common Stock purchased by the Investor). Nothing
in this Agreement, express or implied, is intended to confer upon any party
other than the parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
(b) Governing Law. This Agreement will be governed by and construed
under the internal laws of the State of New York, without reference to any
conflicts of laws principles.
(c) Construction. The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement. The language of this Agreement is to be construed
and interpreted simply, according to its fair meaning, and is not to be strictly
construed for or against any party hereto regardless of the source of
draftsmanship.
(d) Notices. Unless otherwise provided, any notice required or
permitted under this Agreement must be given in writing and will be deemed
effectively given upon personal or facsimile delivery to the party to be
notified or three days after deposit with the United States Post Office, by
registered or certified mail, postage prepaid and addressed to the party to be
notified at the address indicated for such party on the signature page hereof,
or at such other address as such party may designate by ten days' advance
written notice to the other party.
(e) Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party will be
entitled to actual attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
(f) Amendments and Waivers. Any term of this Agreement may be amended
and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only
with the written consent of the Company and the Holders of a majority of the
Registrable Securities then outstanding.
(g) Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision will be excluded from
this Agreement and the balance of the Agreement will be interpreted as if such
provision were so excluded and will be enforceable in accordance with its terms.
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(h) Aggregation of Stock. All Registrable Securities held or acquired
by affiliated entities will be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
(i) Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
[The remainder of this page has been intentionally left blank;
signature page follows.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE COMPANY:
USA Detergents, Inc.,
a Delaware corporation
By: /s/ Uri M. Evan
------------------------------
Name: Uri M. Evan
Title: Chief Executive Officer
THE INVESTOR:
Church & Xxxxxx Co., Inc.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx, III
------------------------------
Name: Xxxxxx X. Xxxxxx, III
Title: Chief Executive Officer
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