EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as
of November 14, 2003, is entered into by and among Odd Job Stores, Inc., an Ohio
corporation (including its successors, the "Company"), and Amazing Savings
Holding LLC, a Delaware limited liability company ("Amazing Savings").
RECITALS
WHEREAS, the Company and Amazing Savings are parties to the asset
purchase agreement of even date herewith (the "Asset Purchase Agreement") and
the merger agreement of even date herewith (the "Merger Agreement" and, together
with the Asset Purchase Agreement, the "Transaction Agreements");
WHEREAS, contemporaneously with the execution of this Agreement,
the Company and Amazing Savings are entering into an indemnification agreement;
and
WHEREAS, under the Transaction Agreements, Amazing Savings will
receive shares of common stock, without par value (the "Common Stock"), of the
Company; and
WHEREAS, in order to induce Amazing Savings to enter into the
Transaction Agreements, the Company desire to grant to Amazing Savings certain
rights as provided herein.
NOW, THEREFORE, BE IT RESOLVED, in consideration of the premises,
mutual covenants and agreements hereinafter contained and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
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1.1 Definitions.
"Advice" shall have the meaning provided in Section 2.6 hereof.
"Affiliate" means, with respect to any Person, any Person who,
directly or indirectly, controls, is controlled by or is under common control
with any Person.
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banks are authorized or required to close under the laws
of the United States or the State of New York.
"Common Stock" shall have the meaning provided in the Recitals
hereof.
"Common Stock Equivalents" means, without duplication with any
other Common Stock or Common Stock Equivalents, any rights, warrants, options,
convertible securities or indebtedness, exchangeable securities or indebtedness,
or other rights, exercisable for or convertible or exchangeable into, directly
or indirectly, Common Stock of the Company and securities convertible or
exchangeable into Common Stock of the Company, whether at the time of issuance
or upon the passage of time or the occurrence of such future event.
"Company" shall have the meaning set forth in the introductory
paragraph hereof.
"Demand Registration" shall have the meaning set forth in Section
2.1.1 hereof.
"Demand Request" shall have the meaning set forth in Section
2.1.1 hereof.
"Effective Date" shall mean the date of the final prospectus
relating to the Company's first underwritten offering of any of its securities
to the general public.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations
promulgated by the SEC thereunder.
"Excluded Registration" means a registration under the Securities
Act of (i) securities pursuant to one or more Demand Registrations pursuant to
Section 2 hereof, (ii) securities registered on Form S-8 or any similar
successor form, and (iii) securities registered to effect the acquisition of or
combination with another Person.
"Holder" means (i) Amazing Savings and (ii) any direct or
indirect transferee of Amazing Savings, including any securityholder that
receives shares of Common Stock upon a distribution or liquidation of a Holder,
who shall become a party to this Agreement in accordance with Section 2.9 by its
execution of a joinder agreement.
"Inspectors" shall have the meaning provided in Section 2.5(x)
hereof.
"Material Adverse Effect" shall have the meaning provided in
Section 2.1.4 hereof.
"NASD" shall have the meaning provided in Section 2.7 hereof.
"Person" or "person" means any individual, corporation,
partnership, limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization or government or other agency or
political subdivision thereof.
"Records" shall have the meaning provided in Section 2.5(x)
hereof.
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"register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registrable Shares" means at any time the Common Stock of the
Company owned by the Holders, whether owned on the date hereof or acquired
hereafter; provided, however, that Registrable Shares shall not include any
shares (i) the sale of which has been registered pursuant to the Securities Act
and which shares have been sold pursuant to such registration or (ii) which have
been sold pursuant to Rule 144 of the SEC under the Securities Act.
"Registration Expenses" shall have the meaning provided in
Section 2.7 hereof.
"Requesting Holders" shall have the meaning set forth in Section
2.1.1 hereof.
"Required Filing Date" shall have the meaning provided in Section
2.1.1(b) hereof.
"Required Holders" means Holders who then own beneficially more
than 66-2/3% of the aggregate number of shares of Common Stock subject to this
Agreement.
"SEC" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations promulgated by the
SEC thereunder.
"Seller Affiliates" shall have the meaning provided in Section
2.8.1 hereof.
"Shelf Registration" means a registration pursuant to Rule 415
under the Securities Act.
"Subsidiary" means any entity with respect to which a specified
Person (or a Subsidiary thereof) owns or has the power to vote 50% or more of
the equity interests in such entity, having general voting power to participate
in the election of the governing body of such entity.
"Suspension Notice" shall have the meaning provided in Section
2.6 hereof.
1.2 Rules of Construction. Unless the context otherwise requires
(1) a term has the meaning assigned to it;
(2) "or" is not exclusive;
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(3) words in the singular include the plural, and words in
the plural include the singular;
(4) provisions apply to successive events and transactions;
and
(5) "herein," "hereof" and other words of similar import
refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
ARTICLE 2
REGISTRATION RIGHTS
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2.1 Demand Registration.
2.1.1 Request for Registration.
(a) At any time after the earlier of (i) one year from the
date hereof or (ii) one hundred eighty (180) days after the
Effective Date, any Holder or Holders may request the Company, in
writing (a "Demand Request"), to effect the registration under
the Securities Act of all or part of its or their Registrable
Shares (a "Demand Registration"). Notwithstanding the foregoing,
no Demand Request will be effective hereunder unless the
Registrable Shares proposed to be sold by the Holders requesting
the Demand Registration (the "Requesting Holders," which term
shall include parties deemed "Requesting Holders" pursuant to
Section 2.1.5 hereof) represent, in the aggregate, more than
twenty percent (20%) of the total number of Registrable Shares
held by all Holders.
(b) Each Demand Request shall specify the number of
Registrable Shares proposed to be sold. Subject to Section 2.1.6,
the Company shall file the Demand Registration within ninety (90)
days after receiving a Demand Request (the "Required Filing
Date") and shall use its reasonable best efforts to cause the
same to be declared effective by the SEC as promptly as
practicable after such filing, which registration shall be
pursuant to a Shelf Registration if requested by such Holders and
if the Company is then eligible to use such a registration;
provided, however, that the Company need effect only three (3)
Demand Registrations pursuant to Demand Requests made by Holders
of Registrable Shares pursuant to Section 2.1.1(a) unless the
Company shall be eligible to file a registration statement on
Form S-3 under the Securities Act, in which event there shall be
no limit on the number of Demand Registrations that the Company
shall be required to effect; provided, further, however, that the
Company shall not be required to effect more than two (2)
registration statements on Form S-3 under the Securities Act in
any calendar year; provided, further, that if any Registrable
Shares requested to be registered pursuant to a Demand Request
are excluded from the applicable Demand Registration pursuant to
Section 2.1.4 below, the Holders shall have the right, with
respect to each such exclusion, to request one additional Demand
Registration.
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2.1.2 Effective Registration and Expenses. A registration will
not count as a Demand Registration until it has become effective (unless the
Requesting Holders withdraw all their Registrable Shares and the Company has
performed its obligations hereunder in all material respects, in which case such
demand will count as a Demand Registration unless the Requesting Holders pay all
Registration Expenses, as hereinafter defined, in connection with such withdrawn
registration); provided, however, that if, after it has become effective, an
offering of Registrable Shares pursuant to a registration is interfered with by
any stop order, injunction, or other order or requirement of the SEC or other
governmental agency or court, such registration will be deemed not to have been
effected and will not count as a Demand Registration.
2.1.3 Selection of Underwriters. The offering of Registrable
Shares pursuant to a Demand Registration shall be in the form of a "firm
commitment" underwritten offering. The Requesting Holders of a majority of the
Registrable Shares to be registered in a Demand Registration shall select the
investment banking firm or firms to manage the underwritten offering, provided
that such selection shall be subject to the consent of the Company, which
consent shall not be unreasonably withheld. No Person may participate in any
registration pursuant to Section 2.1.1 unless such Person (x) agrees to sell
such Person's Registrable Shares on the basis provided in any underwriting
arrangements described above and (y) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements; provided,
however, that no such Person shall be required to make any representations or
warranties in connection with any such registration other than representations
and warranties as to (i) such Person's ownership of his or its Registrable
Shares to be transferred free and clear of all liens, claims, and encumbrances,
(ii) such Person's power and authority to effect such transfer, and (iii) such
matters pertaining to compliance with securities laws as may be reasonably
requested; provided, further, however, that the obligation of such Person to
indemnify pursuant to any such underwriting arrangements shall be several, not
joint and several, among such Persons selling Registrable Shares, and the
liability of each such Person will be in proportion thereto, and provided,
further, that such liability will be limited to, the net amount received by such
Person from the sale of his or its Registrable Shares pursuant to such
registration.
2.1.4 Priority on Demand Registrations. No securities to be sold
for the account of any Person (including the Company) other than a Requesting
Holder shall be included in a Demand Registration unless the managing
underwriter or underwriters shall advise the Company or the Requesting Holders
in writing that the inclusion of such securities will not materially and
adversely affect the price or success of the offering (a "Material Adverse
Effect"). Furthermore, in the event the managing underwriter or underwriters
shall advise the Company or the Requesting Holders that even after exclusion of
all securities of other Persons pursuant to the immediately preceding sentence,
the amount of Registrable Shares proposed to be included in such Demand
Registration by Requesting Holders is sufficiently large to cause a Material
Adverse Effect, the Registrable Shares of the Requesting Holders to be included
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in such Demand Registration shall equal the number of shares which the Company
is so advised can be sold in such offering without a Material Adverse Effect and
such shares shall be allocated pro rata among the Requesting Holders on the
basis of the number of Registrable Shares requested to be included in such
registration by each such Requesting Holder.
2.1.5 Rights of Nonrequesting Holders. Upon receipt of any Demand
Request, the Company shall promptly (but in any event within ten (10) days) give
written notice of such proposed Demand Registration to all other Holders, who
shall have the right, exercisable by written notice to the Company within twenty
(20) days of their receipt of the Company's notice, to elect to include in such
Demand Registration such portion of their Registrable Shares as they may
request. All Holders requesting to have their Registrable Shares included in a
Demand Registration in accordance with the preceding sentence shall be deemed to
be "Requesting Holders" for purposes of this Section 2.1.
2.1.6 Deferral of Filing. The Company may defer the filing (but
not the preparation) of a registration statement required by Section 2.1 until a
date not later than ninety (90) days after the Required Filing Date if at the
time the Company receives the Demand Request, (i) the Company or any of its
Subsidiaries are engaged in confidential negotiations or other confidential
business activities, disclosure of which would be required in such registration
statement (but would not be required if such registration statement were not
filed) or (ii) it is within one hundred eighty (180) days of the effective date
of any other registration of securities of the Company (other than any
registration on Form S-8 under the Securities Act (or any comparable form)),
including, without limitation, within one hundred eighty (180) days of any
registration pursuant to this Section 2. A deferral of the filing of a
registration statement pursuant to this Section 2.1.6 shall be lifted, and the
requested registration statement shall be filed forthwith, if, in the case of a
deferral pursuant to clause (i) of the preceding sentence, the negotiations or
other activities are disclosed or terminated, or, in the case of a deferral
pursuant to clause (ii) of the preceding sentence, the proposed registration for
the Company's account is abandoned. In order to defer the filing of a
registration statement pursuant to this Section 2.1.6, the Company shall
promptly (but in any event within ten (10) days), upon determining to seek such
deferral, deliver to each Requesting Holder a certificate signed by an executive
officer of the Company stating that the Company is deferring such filing
pursuant to this Section 2.1.6. Within twenty (20) days after receiving such
certificate, the holders of a majority of the Registrable Shares held by the
Requesting Holders and for which registration was previously requested may
withdraw such Demand Request by giving notice to the Company; if withdrawn, the
Demand Request shall be deemed not to have been made for all purposes of this
Agreement. The Company may defer the filing of a particular registration
statement pursuant to this Section 2.1.6 only once within any one hundred eighty
(180) day period.
2.2 Piggyback Registrations.
2.2.1 Right to Piggyback. Each time the Company proposes to
register any of its equity securities (other than pursuant to an Excluded
Registration) under the Securities Act for sale to the public (whether for the
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account of the Company or the account of any securityholder of the Company) and
the form of registration statement to be used permits the registration of
Registrable Shares, the Company shall give prompt written notice to each Holder
of Registrable Shares (which notice shall be given not less than thirty (30)
days prior to the effective date of the Company's registration statement), which
notice shall offer each such Holder the opportunity to include any or all of its
or his Registrable Shares in such registration statement, subject to the
limitations contained in Section 2.2.2 hereof. Each Holder who desires to have
its or his Registrable Shares included in such registration statement shall so
advise the Company in writing (stating the number of shares desired to be
registered) within twenty (20) days after the date of such notice from the
Company. Any Holder shall have the right to withdraw such Holder's request for
inclusion of such Holder's Registrable Shares in any registration statement
pursuant to this Section 2.2.1 by giving written notice to the Company of such
withdrawal. Subject to Section 2.2.2 below, the Company shall include in such
registration statement all such Registrable Shares so requested to be included
therein; provided, however, that the Company may at any time withdraw or cease
proceeding with any such registration if it shall at the same time withdraw or
cease proceeding with the registration of all other equity securities originally
proposed to be registered. Notwithstanding anything to the contrary contained in
this Section 2.2.1, no Holder shall be entitled to register any of its
Registrable Shares pursuant to this Section 2.2.1 until 180 days after the
Effective Date, nor shall any Holder be entitled to notice of any proposed
registration by the Company of any of its equity securities that is intended to
become effective within 180 days of the Effective Date.
2.2.2 Priority on Registrations. If the managing underwriter
advises the Company that the inclusion of Registrable Shares requested to be
included in the Registration Statement would cause a Material Adverse Effect,
the Company will be obligated to include in such registration statement, as to
each Requesting Holder, only a portion of the shares such Holder has requested
be registered equal to the ratio which such Holder's requested shares bears to
the total number of shares requested to be included in such registration
statement by all Persons (including Requesting Holders) who have requested
(pursuant to contractual registration rights) that their shares be included in
such registration statement. If as a result of the provisions of this Section
2.2.2 any Holder shall not be entitled to include all Registrable Shares in a
registration that such Holder has requested to be so included, such Holder may
withdraw such Holder's request to include Registrable Shares in such
registration statement. No Person may participate in any registration statement
hereunder unless such Person (x) agrees to sell such person's Registrable Shares
on the basis provided in any underwriting arrangements approved by the Company
and (y) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents, each in customary
form, reasonably required under the terms of such underwriting arrangements;
provided, however, that no such Person shall be required to make any
representations or warranties in connection with any such registration other
than representations and warranties as to (i) such Person's ownership of his or
its Registrable Shares to be sold or transferred free and clear of all liens,
claims, and encumbrances, (ii) such Person's power and authority to effect such
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transfer, and (iii) such matters pertaining to compliance with securities laws
as may be reasonably requested; provided, further, however, that the obligation
of such Person to indemnify pursuant to any such underwriting arrangements shall
be several, not joint and several, among such Persons selling Registrable
Shares, and the liability of each such Person will be in proportion to, and
provided, further, that such liability will be limited to, the net amount
received by such Person from the sale of his or its Registrable Shares pursuant
to such registration.
2.3 Holdback Agreement. Unless the managing underwriter otherwise
agrees, each of the Company and the Holders agrees (and the Company agrees, in
connection with any underwritten registration, to use its commercially
reasonable efforts to cause its Affiliates to agree) not to effect any public
sale or private offer or distribution of any Common Stock or Common Stock
Equivalents during the ten Business Days prior to the effectiveness under the
Securities Act of any underwritten registration and during such time period
after the effectiveness under the Securities Act of any underwritten
registration (not to exceed one hundred eighty (180) days) (except, if
applicable, as part of such underwritten registration) as the Company and the
managing underwriter may agree. Notwithstanding the foregoing, this Section 2.3
shall not apply unless all then officers and directors of the Company and each
holder of securities representing 1% or more of the outstanding securities of
the Company, enter into similar agreements. Any discretionary waiver or
termination of the requirements under the foregoing provisions made by the
managing underwriter shall apply to each seller of Registrable Shares on a pro
rata basis in accordance with the number of Registrable Shares held by each
seller.
2.4 Registration Procedures. Whenever any Holder has requested
that any Registrable Shares be registered pursuant to this Agreement, the
Company will use its best efforts to effect the registration and the sale of
such Registrable Shares in accordance with the intended method of disposition
thereof, and pursuant thereto the Company will as expeditiously as possible:
(i) prepare and file with the SEC a registration statement on any
appropriate form under the Securities Act with respect to such
Registrable Shares and use its commercially reasonable efforts to
cause such registration statement to become effective;
(ii) prepare and file with the SEC such amendments,
post-effective 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 one hundred eighty (180) days (or such lesser period
as is necessary for the underwriters in an underwritten offering to
sell unsold allotments) 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;
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(iii) furnish to each seller of Registrable Shares and the
underwriters of the securities being registered such number of copies
of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus), any documents incorporated by reference
therein and such other documents as such seller or underwriters may
reasonably request in order to facilitate the disposition of the
Registrable Shares owned by such seller or the sale of such securities
by such underwriters (it being understood that, subject to Section 2.5
and the requirements of the Securities Act and applicable state
securities laws, the Company consents to the use of the prospectus and
any amendment or supplement thereto by each seller and the
underwriters in connection with the offering and sale of the
Registrable Shares covered by the registration statement of which such
prospectus, amendment or supplement is a part);
(iv) use its commercially reasonable efforts to register or
qualify such Registrable Shares under such other securities or blue
sky laws of such jurisdictions as the managing underwriter reasonably
requests (or, in the event the registration statement does not relate
to an underwritten offering, as the holders of a majority of such
Registrable Shares may reasonably request); use its commercially
reasonable efforts to keep each such registration or qualification (or
exemption therefrom) effective during the period in which such
registration statement is required to be kept effective; and do any
and all other acts and things which may be reasonably necessary or
advisable to enable each seller to consummate the disposition of the
Registrable Shares owned by such seller in such jurisdictions
(provided, however, that the Company will not be required to (A)
qualify generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this subparagraph or (B)
consent to general service of process in any such jurisdiction);
(v) promptly notify each seller and each underwriter and (if
requested by any such Person) confirm such notice in writing (A) when
a prospectus or any prospectus supplement or post-effective amendment
has been filed and, with respect to a registration statement or any
post-effective amendment, when the same has become effective, (B) of
the issuance by any state securities or other regulatory authority of
any order suspending the qualification or exemption from qualification
of any of the Registrable Shares under state securities or "blue sky"
laws or the initiation of any proceedings for that purpose, and (C) of
the happening of any event which makes any statement made in a
registration statement or related prospectus untrue or which requires
the making of any changes in such registration statement, prospectus
or documents so that they will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and, as promptly as practicable thereafter, prepare and file with the
SEC and furnish a supplement or amendment to such prospectus so that,
as thereafter deliverable to the purchasers of such Registrable
Shares, such prospectus will not contain any untrue statement of a
material fact or omit a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
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(vi) make generally available to the Company's securityholders an
earnings statement satisfying the provisions of Section 11(a) of the
Securities Act no later than thirty (30) days after the end of the
twelve (12) month period beginning with the first day of the Company's
first fiscal quarter commencing after the effective date of a
registration statement, which earnings statement shall cover said
twelve (12) month period, and which requirement will be deemed to be
satisfied if the Company timely files complete and accurate
information on Forms 10-Q, 10-K and 8-K under the Exchange Act and
otherwise complies with Rule 158 under the Securities Act;
(vii) if requested by the managing underwriter or any seller
promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or any seller
reasonably requests to be included therein, including, without
limitation, with respect to the Registrable Shares being sold by such
seller, the purchase price being paid therefor by the underwriters and
with respect to any other terms of the underwritten offering of the
Registrable Shares to be sold in such offering, and promptly make all
required filings of such prospectus supplement or post-effective
amendment;
(viii) as promptly as practicable after filing with the SEC of
any document which is incorporated by reference into a registration
statement (in the form in which it was incorporated), deliver a copy
of each such document to each seller;
(ix) cooperate with the sellers and the managing underwriter to
facilitate the timely preparation and delivery of certificates (which
shall not bear any restrictive legends unless required under
applicable law) representing securities sold under any registration
statement, and enable such securities to be in such denominations and
registered in such names as the managing underwriter or such sellers
may request and keep available and make available to the Company's
transfer agent prior to the effectiveness of such registration
statement a supply of such certificates;
(x) promptly make available for inspection by any seller, any
underwriter participating in any disposition pursuant to any
registration statement, and any attorney, accountant or other agent or
representative retained by any such seller or underwriter
(collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company
(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
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information requested by any such Inspector in connection with such
registration statement; provided, however, that, unless the disclosure
of such Records is necessary to avoid or correct a misstatement or
omission in the registration statement or the release of such Records
is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, the Company shall not be required to provide
any information under this subparagraph (x) if (A) the Company
believes, after consultation with counsel for the Company, that to do
so would cause the Company to forfeit an attorney-client privilege
that was applicable to such information or (B) if either (1) the
Company has requested and been granted from the SEC confidential
treatment of such information contained in any filing with the SEC or
documents provided supplementally or otherwise or (2) the Company
reasonably determines in good faith that such Records are confidential
and so notifies the Inspectors in writing unless prior to furnishing
any such information with respect to (A) or (B) such Holder of
Registrable Shares requesting such information agrees to enter into a
confidentiality agreement in customary form and subject to customary
exceptions; and provided, further, that each Holder of Registrable
Shares agrees that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to
the Company and allow the Company, at its expense, to undertake
appropriate action and to prevent disclosure of the Records deemed
confidential;
(xi) furnish to each underwriter, and where customary to each
seller, a signed counterpart of (A) an opinion or opinions of counsel
to the Company, and (B) a comfort letter or comfort letters from the
Company's independent public accountants, each in customary form and
covering such matters of the type customarily covered by opinions or
comfort letters, as the case may be, as the sellers or managing
underwriter reasonably requests;
(xii) cause the Registrable Shares included in any registration
statement to be (A) listed on each securities exchange, if any, on
which similar securities issued by the Company are then listed, or (B)
authorized to be quoted and/or listed (to the extent applicable) on
the National Association of Securities Dealers, Inc. Automated
Quotation System or the Nasdaq National Market if the Registrable
Shares so qualify;
(xiii) provide a transfer agent and registrar for all Registrable
Shares registered hereunder and provide a CUSIP number for the
Registrable Shares included in any registration statement not later
than the effective date of such registration statement;
(xiv) cooperate with each seller and each underwriter
participating in the disposition of such Registrable Shares and their
respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc.;
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(xv) during the period when the prospectus is required to be
delivered under the Securities Act, promptly file all documents
required to be filed with the SEC pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act;
(xvi) notify each seller of Registrable Shares promptly of any
request by the SEC for the amending or supplementing of such
registration statement or prospectus or for additional information;
(xvii) prepare and file with the SEC promptly any amendments or
supplements to such registration statement or prospectus which, in the
opinion of counsel for the Company or the managing underwriter, is
required in connection with the distribution of the Registrable
Shares;
(xviii) enter into such agreements (including underwriting
agreements in the managing underwriter's customary form) as are
customary in connection with an underwritten registration; and
(xix) advise each seller of such Registrable Shares, promptly
after it shall receive notice or obtain knowledge thereof, of the
issuance of any stop order by the SEC suspending the effectiveness of
such registration statement or the initiation or threatening of any
proceeding for such purpose and promptly use its best efforts to
prevent the issuance of any stop order or to obtain its withdrawal at
the earliest possible moment if such stop order should be issued.
2.5 Suspension of Dispositions. Each Holder agrees by acquisition
of any Registrable Shares that, upon receipt of any notice (a "Suspension
Notice") from the Company of the happening of any event of the kind described in
Section 2.4(v)(C) such Holder will forthwith discontinue disposition of
Registrable Shares until such Holder's receipt of the copies of the supplemented
or amended prospectus, 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 Holder will deliver to
the Company all copies, other than permanent file copies then in such Holder's
possession, of the prospectus covering such Registrable Shares current at the
time of receipt of such notice. In the event the Company shall give any such
notice, the time period regarding the effectiveness of registration statements
set forth in Section 2.4(ii) hereof shall be extended by the number of days
during the period from and including the date of the giving of the Suspension
Notice to and including the date when each seller of Registrable Shares covered
by such registration statement shall have received the copies of the
supplemented or amended prospectus or the Advice. The Company shall use its
commercially reasonable efforts and take such actions as are reasonably
necessary to render the Advice as promptly as practicable.
2.6 Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Article 2 including, without limitation,
all registration and filing fees, all fees and expenses associated with filings
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required to be made with the National Association of Securities Dealers, Inc.
("NASD") (including, if applicable, the fees and expenses of any "qualified
independent underwriter" as such term is defined in Schedule E of the By-Laws of
the NASD, and of its counsel), as may be required by the rules and regulations
of the NASD, 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 Shares), rating agency fees, printing
expenses (including expenses of printing certificates for the Registrable Shares
in a form eligible for deposit with Depository Trust Company and of printing
prospectuses if the printing of prospectuses is requested by a holder of
Registrable Shares), messenger and delivery expenses, the Company's internal
expenses (including without limitation all salaries and expenses of its officers
and employees performing legal or accounting duties), the fees and expenses
incurred in connection with any listing of the Registrable Shares, fees and
expenses of counsel for the Company and its independent certified public
accountants (including the expenses of any special audit or "cold comfort"
letters required by or incident to such performance), securities acts liability
insurance (if the Company elects to obtain such insurance), the fees and
expenses of any special experts retained by the Company in connection with such
registration, and the fees and expenses of other persons retained by the Company
and reasonable fees and expenses of one firm of counsel for the sellers (which
shall be selected by the holders of a majority of the Registrable Shares being
included in any particular registration statement) (all such expenses being
herein called "Registration Expenses") will be borne by the Company whether or
not any registration statement becomes effective; provided, however, that in no
event shall Registration Expenses include any underwriting discounts,
commissions, or fees attributable to the sale of the Registrable Shares or any
counsel (except as provided above), accountants, or other persons retained or
employed by the Holders, which expenses shall be borne by the selling Holders
pro rata on the basis of the number of shares so registered.
2.7 Indemnification.
2.7.1 The Company agrees to indemnify and reimburse, to the
fullest extent permitted by law, each seller of Registrable Shares, and each of
its employees, advisors, agents, representatives, partners, managing members,
officers, and directors and each Person who controls such seller (within the
meaning of the Securities Act or the Exchange Act) and any agent or investment
advisor thereof (collectively, the "Seller Affiliates") (A) against any and all
losses, claims, damages, liabilities, and expenses, joint or several (including,
without limitation, attorneys' fees and disbursements except as limited by
Section 2.7.3) based upon, arising out of, related to or resulting from any
untrue or alleged untrue statement of a 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, (B) against any and all loss, liability, claim, damage, and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon,
arising out of, related to or resulting from any such untrue statement or
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omission or alleged untrue statement or omission, and (C) against any and all
costs and expenses (including reasonable fees and disbursements of counsel) as
may be reasonably incurred in investigating, preparing, or defending against any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon, arising out of,
related to or resulting from any such untrue statement or omission or alleged
untrue statement or omission, or such violation of the Securities Act or
Exchange Act, to the extent that any such expense or cost is not paid under
subparagraph (A) or (B) above; except insofar as any such statements are made in
reliance upon and in strict conformity with information furnished in writing to
the Company by such seller or any Seller Affiliate for use therein or arise from
such seller's or any Seller Affiliate's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Company has furnished such seller or Seller Affiliate with a
sufficient number of copies of the same, in such case, such seller or such
Seller Affiliate shall not be entitled to indemnity for such untrue statement or
omission. The reimbursements required by this Section 2.7.1 will be made by
periodic payments during the course of the investigation or defense, as and when
bills are received or expenses incurred.
2.7.2 In connection with any registration statement in which a
seller of Registrable Shares is participating, each such seller will 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 fullest extent permitted by law, each such seller will
indemnify the Company and its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act or the Exchange
Act) against any and all losses, claims, damages, liabilities, and expenses
(including, without limitation, reasonable attorneys' fees and disbursements
except as limited by Section 2.7.3) resulting from any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement, prospectus, or any 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 alleged untrue
statement or omission or alleged omission is contained in any information or
affidavit so furnished in writing by such seller or any of its Seller Affiliates
specifically for inclusion in the registration statement; provided that the
obligation to indemnify will be several, not joint and several, among such
sellers of Registrable Shares, and the liability of each such seller of
Registrable Shares will be in proportion to, and, provided, further, that such
liability will be limited to, the net amount received by such seller from the
sale of Registrable Shares pursuant to such registration statement; provided,
however, that such seller of Registrable Shares shall not be liable in any such
case to the extent that prior to the filing of any such registration statement
or prospectus or amendment thereof or supplement thereto, such seller has
furnished in writing to the Company information expressly for use in such
registration statement or prospectus or any amendment thereof or supplement
thereto which corrected or made not misleading information previously furnished
to the Company.
2.7.3 Any Person entitled to indemnification hereunder will (A)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to give such notice
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shall not limit the rights of such Person) and (B) unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person unless (X) the
indemnifying party has agreed to pay such fees or expenses, or (Y) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person. If such defense is not
assumed by the indemnifying party as permitted hereunder, the indemnifying party
will not be subject to any liability for any settlement made by the indemnified
party without its consent (but such consent will not be unreasonably withheld).
If such defense is assumed by the indemnifying party pursuant to the provisions
hereof, such indemnifying party shall not settle or otherwise compromise the
applicable claim unless (1) such settlement or compromise contains a full and
unconditional release of the indemnified party or (2) the indemnified party
otherwise consents in writing. An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party, a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim, in which event the indemnifying party shall be obligated to pay the
reasonable fees and disbursements of such additional counsel or counsels.
2.7.4 Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 2.7.1 or Section 2.7.2 are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages, liabilities, or expenses (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, liabilities, or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party in connection with the actions which resulted in
the losses, claims, damages, liabilities or expenses as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 2.7.4 were determined by pro
rata allocation (even if the Holders or any underwriters or all of them 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 this
Section 2.7.4. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities, or expenses (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
15
expenses reasonably incurred by such indemnified party in connection with
investigating or, except as provided in Section 2.7.3, defending any such action
or claim. Notwithstanding the provisions of this Section 2.7.4, no Holder shall
be required to contribute an amount greater than the dollar amount by which the
net proceeds received by such Holder with respect to the sale of any Registrable
Shares exceeds the amount of damages which such Holder has otherwise been
required to pay by reason of any and all untrue or alleged untrue statements of
material fact or omissions or alleged omissions of material fact made in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto related to such sale of Registrable Shares. 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. The Holders'
obligations in this Section 2.7.4 to contribute shall be several in proportion
to the amount of Registrable Shares registered by them and not joint.
2.7.5 The indemnification and contribution provided for under
this Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director, or controlling Person of such indemnified party and will survive the
transfer of securities.
2.8 Transfer of Registration Rights. The rights of each Holder
under this Agreement may be assigned to a transferee or assignee of at least
five hundred thousand (500,000) shares (as adjusted for stock splits, stock
dividends, recapitalizations and the like) of a Holder's Registrable Shares not
sold to the public; provided, however, that the Company is given written notice
by such Holder at or within a reasonable time after said transfer, stating the
name and address of such transferee or assignee and identifying the securities
with respect to which such registration rights are being transferred or
assigned. Notwithstanding the foregoing, any Holder may transfer rights to a
transferee of fewer than five hundred thousand (500,000) shares (as adjusted for
stock splits, stock dividends, recapitalizations and the like) of a Holder's
Registrable Shares if such transferee is (a) any affiliate, control person,
controlled person, partner or retired partner of any Holder or (b) any family
member or trust for the benefit of any individual Holder.
2.9 Current Public Information. With a view to making available
to the Holders the benefits of certain rules and regulations of the SEC that may
at any time permit the sale of securities to the public without registration,
the Company agrees to use its best efforts to:
(i) make and keep public information available, as those terms
are defined in Rule 144 under the Securities Act, at all times after the
effective date that the Company becomes subject to the reporting requirements of
the Securities Act or the Exchange Act;
(ii) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act
(at any time after it has become subject to such reporting requirements);
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(iii) furnish to any Holder, so long as such Holder owns any
Registrable Shares, upon request by such Holder, (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 (at any
time after 90 days after the effective date of the first registration statement
filed by the Company for an offering of its securities to the general public),
and of the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), (ii) a copy of the most recent annual
or quarterly report of the Company and (iii) such other reports and documents of
the Company and other information in the possession of or reasonably obtainable
by the Company as a Holder may reasonably request in availing itself of any rule
or regulation of the SEC allowing a Holder to sell any such securities without
registration.
ARTICLE 3
TERMINATION
-----------
3.1 Termination. The provisions of this Agreement shall terminate
five years after the date hereof.
ARTICLE 4
MISCELLANEOUS
-------------
4.1 Notices. Any notices or other communications required or
permitted hereunder shall be in writing, and shall be sufficiently given if made
by hand delivery, by telex, by telecopier or registered or certified mail,
postage prepaid, return receipt requested, addressed as follows (or at such
other address as may be substituted by notice given as herein provided):
If to the Company:
Odd Job Stores, Inc.
000 Xxxxx Xxxxxx
Facsimile No.: 000-000-0000
Attention: Xxxxx Xxxxxxx
with a copy (which shall not constitute notice) to:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to Amazing Savings:
Amazing Savings Holding LLC
00 Xxxxxxxx Xx.
X.X. Xxx 00
Xxxxxxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
17
Any notice or communication hereunder shall be deemed to have
been given or made as of the date so delivered if personally delivered; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and five
(5) calendar days after mailing if sent by registered or certified mail (except
that a notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
4.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF New York, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
4.3 Successors and Assigns. Except as otherwise expressly
provided herein, this Agreement shall be binding upon and benefit the Company,
each Holder, and their respective successors and assigns.
4.4 Duplicate Originals. All parties may sign any number of
copies of this Agreement. Each signed copy shall be an original, but all of them
together shall represent the same agreement.
4.5 Severability. In case any provision in this Agreement shall
be held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and the remaining provisions shall not in any way be affected or
impaired thereby.
4.6 No Waivers; Amendments.
4.6.1 No failure or delay on the part of the Company or any
Holder in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
Company or any Holder at law or in equity or otherwise.
4.6.2 Any provision of this Agreement may be amended or waived
if, but only if, such amendment or waiver is in writing and is signed by the
Company and the Required Holders.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the date first written above.
AMAZING SAVINGS HOLDING LLC
By: Ascend Retail Investment LLC, Managing Member of
Amazing Savings Holding LLC
By: /s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Member
ODD JOB STORES, INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxx Xxxxxxx
Title Chief Financial Officer
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