EXHIBIT 3.4
REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made as of the 28TH day of May 1992 by and among
Xxxxxx International, Inc., a Delaware corporation (the "Company"), and the
undersigned security holders of the Company (the "Stockholders").
BACKGROUND
The Stockholders are persons and entities that own or are acquiring
contemporaneously with the execution of this Agreement shares of Common Stock of
the Company (collectively, the "Common Stock"). Certain of the Stockholders are
also receiving on this date options to purchase Common Stock (the "Options").
The Company has agreed to provide the registration rights provided for in this
Agreement as an inducement for the Stockholders to enter into other agreements
contemporaneously with this Agreement.
WITNESSETH:
The parties hereto, each intending to be legally bound and in
exchange for the mutual covenants herein, agree as follows:
1. DEMAND REGISTRATIONS.
(a) REQUESTS FOR REGISTRATION. At any time, each Significant
Stockholder (defined below) may demand registration (a 'Demand Registration")
under the Securities Act of 1933, as amended (the "1933 Act"), of all or any
portion of the Registrable Securities (defined below) owned by such Significant
Stockholder. In order to accomplish such demand, a Significant Stockholder shall
send written notice of the demand to the Company, and such notice shall specify
the number of Registrable Securities sought to be registered. The Significant
Stockholders each have the right to one Demand Registration; provided, however,
that the Company shall only be required to proceed with a Demand Registration
requested by a Significant Stockholder if the number of Registrable Securities
that the Stockholders (including the Significant Stockholder requesting the
Demand Registration) and the Company shall have elected to include in such
Demand Registration pursuant to this Section 1 has an aggregate fair market
value, in the opinion of an investment banker acceptable to the Significant
Stockholder requesting the Demand Registration and to the Company, in excess of
$5 million.
(b) PROCEDURE. Within 10 days after receipt of such a demand, the
Company will give written notice of such requested registration to all other
holders of Registrable Securities and will include in such registration, subject
to the allocation provisions below, all other Registrable Securities with
respect to which the Company has received written requests for inclusion within
20 days after the Company's mailing of such notice, plus any securities of the
Company that the Company chooses to include on its own behalf.
(c) EXPENSES. In a Demand Registration, the Company will pay the
Registration Expenses (defined below), but the Underwriting Commissions (defined
below) will be shared by the Company and those holders of Registrable Securities
whose Registrable Securities are included in the Demand Registration in
proportion to any securities included on their behalf.
(d) PRIORITY ON DEMAND REGISTRATIONS. If a Demand Registration is
underwritten and the managing underwriters advise the Company in writing that in
their opinion the number of Registrable Securities requested to be included
exceeds the number that can be sold in such offering, at a price reasonably
related to fair value, the Company will include in such Demand Registration (i)
first, the Registrable Securities requested to be included in such Demand
Registration by all Stockholders, including the Significant Stockholder making
the demand, pro rata on the basis of the number of Registrable Securities owned,
and (ii) second, any securities that the Company desires to include on its own
behalf. A Demand Registration shall not be considered to be a Significant
Stockholder's one Demand Registration under Section l(a), and the Company shall
pay the Registration Expenses of such Demand Registration, if (i) as a result of
the foregoing allocation, the Significant Stockholder that initiated the Demand
Registration is not able to register and sell in the Demand Registration at
least 75% of the Registrable Securities sought to be included in the Demand
Registration by such Significant Stockholder, as specified in such Stockholder's
notice by which the demand was made, (ii) the gross proceeds of the securities
included in the Demand Registration on behalf of the Company constitute at least
20% of the total gross proceeds of the Demand Registration, or (iii) the
registration statement requested by such Stockholder does not become effective
for any reason.
(e) SELECTION OF UNDERWRITERS. If any Demand Registration is
underwritten, the selection of investment banker(s) and manager(s) and the other
decisions regarding the underwriting arrangements for the offering will be made
by the Significant Stockholder initiating such registration; provided, however,
that the selection of the investment banker(s) and manager(s) shall be
reasonably acceptable to the Company.
(f) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company will not be
obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Registration or any registration in which
the holders of Registrable Securities were given piggyback rights pursuant to
Section 2 below.
(g) CONTEMPORANEOUS DEMAND. If any holder of the Company's
securities that is not a holder of Registrable Securities under this Agreement
exercises demand registration rights to have the Company register its securities
under the 1933 Act (a "Non-Stockholder Registration") within a period of 30 days
before or after the time any Significant Stockholder shall have requested a
Demand Registration, then (i) the holders of Registrable Securities that desire
to be included in the Non-Stockholder Registration and the holders of securities
other than Registrable Securities that have registration rights with respect to
such a registration shall be entitled to participate in the Non-Stockholder
Registration on a pro rata basis, according to the number of shares owned by the
holders seeking to have securities included in such registration, (ii) the
Company will pay all of the Registration Expenses of the Non-Stockholder
Registration,
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and (iii) the NonStockholder Registration shall not count as a Demand
Registration with respect to any Significant Stockholder that shall have
requested a Demand Registration within such time period unless the Significant
Stockholder is able to register and sell at least 75% of the Registrable
Securities sought to be registered by that Stockholder in its Demand
Registration.
2. PIGGYBACK REGISTRATION.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register
any of its securities under the 1933 Act (other than a Demand Registration), and
the registration form to be used may be used for the registration of Registrable
Securities (a "Piggyback Registration"), the Company will give prompt written
notice to all holders of Registrable Securities and will include in such
Piggyback Registration, subject to the allocation provisions below, all
Registrable Securities with respect to which the Company has received written
requests for inclusion within 20 days after the Company's mailing of such
notice. The Company shall not select a form of registration statement that
imposes, for its use, limitations on the maximum value or number of securities
to be registered if these limitations would preclude registration of the
Registrable Securities that the Company has been requested to include in such
registration.
(b) EXPENSES. In a Piggyback Registration, the Company will pay the
Registration Expenses, but the Underwriting Commissions will be shared by the
Company and those holders of Registrable Securities whose Registrable Securities
are included in the Piggyback Registration in proportion to any securities
included on their behalf.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number that can be sold in such offering, at a price reasonably related to fair
value, the Company will allocate the securities to be included as follows:
first, the securities the Company proposes to sell on its own behalf, and
second, Registrable Securities requested to be included in such registration,
pro rata on the basis of the number of Registrable Securities owned among the
Selling Stockholders.
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration
is initiated as an underwritten secondary registration on behalf of holders of
the Company's securities (other than a Demand Registration pursuant to Section
1), and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number that can be sold in such offering, at a price reasonably
related to fair value, the Company will allocate the securities to be included
as follows: first, the securities requested to be included by the holders
initiating such registration; and second, Registrable Securities requested to be
included in such registration, pro rata on the basis of the number of
Registrable Securities owned among the Selling Stockholders.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is
underwritten, the selection of investment banker(s) and manager(s) and the other
decisions regarding the underwriting arrangements for the offering will be made
by the Company, if the
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registration is under Section 2(c), or by the holders initiating such
registration, if the registration is under Section 2(d); provided, however, that
any selection of the investment banker(s) and manager(s) by such holders shall
be reasonably acceptable to the Company.
3. REGISTRATION ON FORM S-3.
The Company shall use its best efforts to qualify for registration
on Form S-3 or any comparable or successor form or forms; and to that end, the
Company shall register (whether or not required by law to do so) its Common
Stock under the Securities Exchange Act of 1934, as amended, in accordance with
the provisions of that Act as soon as possible following the effective date of
the first registration of any of the Company's securities under the 1933 Act.
After the Company has so qualified, in addition to the rights contained in the
foregoing provisions of this Registration Rights Agreement, each holder of
Registrable Securities shall have the right to request registration of its
Registrable Securities on Form S-3 at the Company's expense, provided that (a)
the Registrable Securities requested for registration by such holder shall have
a market value of at least $1 million and (b) each holder shall be entitled to
only two such registrations during any 12-month period. When the Company
receives notice of any holder's request for a registration on Form S-3, it shall
send notice of such proposed registration to all other holders of Registrable
Securities, and such proposed registration shall be governed by the procedure
set forth in Section 2, except that if the proposed registration is requested by
a Significant Stockholder, such proposed registration shall be governed by the
procedure set forth in Section 1.
4. HOLDBACK AGREEMENTS.
None of the Stockholders or the Company shall effect any public sale
or distribution of equity securities of the Company or any securities
convertible into or exchangeable or exercisable for such securities during the
seven days prior to and the 90 days after any underwritten Demand Registration
or underwritten Piggyback Registration has become effective (except as part of
such underwritten registration).
5. REGISTRATION PROCEDURES.
Whenever the holders of Registrable Securities have requested that
any Registrable Securities be registered pursuant to Section 1 or 2 of this
Agreement, the Company will as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective (provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will make available to each Selling Stockholder
or its counsel copies of all such documents proposed to be filed);
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(b) prepare and file with the Securities and Exchange Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for such period as may be required by the rules
and regulations under the 1933 Act;
(c) furnish to each Selling Stockholder such number of copies of
such registration statement, each amendment and supplement thereto and the
prospectus included in such registration statement (including each preliminary
prospectus), and such other documents as such seller may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
the managing underwriter(s) may reasonably request;
(e) notify each Selling Stockholder at any time when a prospectus
relating thereto is required to be delivered under the 1933 Act within the
period that the Company is required to keep the registration statement effective
of the happening of any event as a result of which the prospectus included in
such registration statement contains an untrue statement of a material fact or
omits any fact necessary to make the statement therein not misleading, and, at
the request of any such seller, the Company will prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statement therein not misleading;
(f) cause all such Registrable Securities to be listed or included
on securities exchanges on which similar securities issued by the Company are
then listed or included;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including an underwriting
agreement in customary form) and take such other customary actions as may be
reasonably necessary to expedite or facilitate the disposition of such
Registrable Securities;
(i) obtain a "comfort" letter addressed to the Company from its
independent public accountants in customary form and covering such matters of
the type customarily covered by "comfort" letters; and
(j) make available for inspection by any Selling Stockholder, any
underwriter participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other agent retained by any such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such
registration statement.
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6. INDEMNIFICATION.
(a) The Company hereby indemnifies, to the extent permitted by law,
each Stockholder, its officers and directors, and each person who controls such
holder (within the meaning of the 1933 Act), against all losses, claims,
damages, liabilities and expenses arising out of or resulting from any untrue or
alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading except insofar as the
same are caused by or contained in any information furnished in writing to the
Company by such holder expressly for use therein or by any such holder's failure
to deliver a copy of the registration statement or prospectus or any amendments
or supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company will indemnify the underwriters, their officers and
directors, and each person who controls such underwriters (within the meaning of
the 0000 Xxx) to the same extent as provided above with respect to the
indemnification of the Stockholders.
(b) In connection with any registration statement in which a Selling
Stockholder is participating, each such holder will furnish to the Company in
writing such information as is reasonably requested by the Company for use in
any such registration statement or prospectus and will indemnify, to the extent
permitted by law, the Company, its directors and officers and each person who
controls the Company (within the meaning of the 0000 Xxx) against any losses,
claims, damages, liabilities and expenses resulting from any untrue or alleged
untrue statement of material fact or any omission or alleged omission of a
material fact required to be stated in the registration statement or prospectus
or any amendment thereof or supplement thereto or necessary to make the
statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in, or omitted from, information so furnished
in writing by such holder specifically for use in preparing the registration
statement. Notwithstanding the foregoing, the liability of a Selling Stockholder
under this Section 6(b) shall be limited to an amount equal to the net proceeds
actually received by the Selling Stockholder from the sale of Registrable
Securities covered by the registration statement.
(c) Any person entitled to indemnification hereunder will (i) give
prompt notice to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) 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. If such defense is assumed, the indemnifying party will not
be subject to any liability for any settlement made without its consent (but
such consent win not be unreasonably withheld). An indemnifying party who is not
entitled, 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
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case such indemnifying party shall pay the fees and expenses of a sufficient
number of counsel so that such conflicts are resolved.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Selling Stockholder may participate in any underwritten
registration hereunder unless such holder (a) agrees to sell such holder's
securities on the basis provided in any underwriting arrangements approved by
the persons entitled hereunder to approve such arrangements under Sections l(e)
or 2(e), and (b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements.
8. DEFINITIONS.
(a) The term "Registrable Securities' means (i) the Common Stock of
the Company registered in the names of the Stockholders from time to time, (ii)
the Common Stock issuable upon exercise of the Options registered in the names
of the Stockholders from time to time, and (iii) any securities issued or to be
issued with respect to the securities referred to above by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Registrable Securities, such securities will cease to be Registrable
Securities when they have been (A) effectively registered under the 1933 Act and
disposed of in accordance with the registration statement covering them, or (B)
transferred pursuant to Rule 144 (or any similar provision then in force). For
purposes of this Section 8(a), any of the types of securities specified in
clauses (i), (ii) or (iii) above ("Successor Securities") that are registered in
the name of a person or entity that is deemed to be a Stockholder (a "Successor
Stockholder") solely as a result of being the successor, assign, heir or
personal representative of a Stockholder shall be considered "Registrable
Securities" only to the extent that the Successor Securities were transferred to
the Successor Stockholder and constituted Registrable Securities at the time of
their transfer to the Successor Stockholder.
(b) The term "Registration Expenses" means all expenses incident to
the Company's performance of or compliance with this Agreement, including
without limitation all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws, printing expenses, messenger and
delivery expenses, expenses and fees for listing the securities to be registered
on exchanges on which similar securities issued by the Company are then listed,
and fees and disbursements of counsel for the Company and of all independent
certified public accountants, underwriters (other than Underwriting Commissions)
and other persons retained by the Company.
(c) The term "Selling Stockholders" means registered holders of
Registrable Securities who request inclusion of all or a portion of their shares
of Registrable Securities in a Demand Registration pursuant to Section l(b) or a
Piggyback Registration pursuant to Section 2(a). For the purposes of Sections 5,
6, and 7, such term also includes those Stockholders who demand a Demand
Registration.
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(d) The term "Significant Stockholder" means Bradford Venture
Partners, LP. ("BVP"), Overseas Private Investor Partners ("OPIP") and Equus
Investments, Inc. ("Equus"); provided, however, that (i) Equus shall cease being
a Significant Stockholder when it no long owns of record at least 10% of the
issued and outstanding Common Stock, and (ii) BVP and OPIP shall cease being
Significant Stockholders when they no longer own, in the aggregate, at least 15%
of the issued and outstanding Common Stock.
(e) The term "Underwriting Commissions" means all underwriting
discounts or commissions relating to the sale of securities of the Company, but
excludes any expenses reimbursed to underwriters.
9. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS.
From and after the date of this Agreement, the Company may enter
into an agreement with any holder or prospective holder of any securities of the
Company that would allow such holder or prospective holder to include such
securities in any registration filed under Sections 1 or 2 hereof. However, the
Company shall not enter into any such agreement without the prior written
consent of the holders of 75% of the outstanding Registrable Securities unless
under the terms of such agreement, such holder or prospective holder may include
such securities in any such registration only to the extent that the inclusion
of its securities would not reduce the amount of the Registrable Securities that
the Stockholders would be entitled to include in such registration.
10. MISCELLANEOUS.
(a) NOTICES. Any notices required hereunder shall be deemed to be
given upon the earlier of the date when received at, or the seventh day after
the date when sent by certified or registered mail to, the address of the
Company's corporate headquarters in the case of any notice to the Company, and
until changed by notice to the Company, the respective addresses of the
Stockholders on file with the Company in the case of any notice to the
Stockholders. Notices may be given by personal delivery, mail Federal Express or
another delivery service.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement may be
amended or terminated and the Company may take any action herein prohibited, or
omit to perform any act herein required to be performed by it, by the written
consent of the Stockholders that own 75% of the Registrable Securities and/or by
any agreement permitted by Section 9.
(c) SUCCESSORS AND ASSIGNS. This Agreement will bind and inure to
the benefit of the respective successors (including any successor resulting from
a merger or similar reorganization), assigns, heirs and personal representatives
of the parties hereto, and any such successors, assigns, heirs and personal
representatives of a Stockholder shall be entitled to the rights granted to, and
subject to the obligations imposed upon, a "Stockholder" hereunder, except to
the extent specified otherwise herein. Without limiting the generality of the
foregoing, in
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addition, if a Stockholder liquidates or reorganizes such that its assets are
transferred to its own stockholders or partners or to another entity, such
stockholders, partners or entity shall succeed to all of the rights of the
Stockholder hereunder.
(d) GOVERNING LAW. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the internal
law, not the law of conflicts, of the State of Delaware.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be considered to be an original instrument and
to be effective as of the date first written above.
(f) INTERPRETATION. Unless the context of this Agreement requires
otherwise, (i) references to the plural include the singular, the singular the
plural and the part the whole, (ii) references to any gender includes all
genders, (iii) "or" has the inclusive meaning frequently identified with the
phrase "and/or" and (iv) "including" has the inclusive meaning frequently
identified with the phrase "but not limited to." The section and other headings
contained in this Agreement are for reference purposes only and shall not
control or affect the construction of this Agreement or the interpretation
thereof in any respect. Section and subsection references are to this Agreement
and use of the terms "hereunder" and "hereof'" refer to the entire Agreement.
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[SIGNATURE PAGE FOR REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
XXXXXX INTERNATIONAL, INC.
By: _____________________________
BRADFORD VENTURE PARTNERS, L.P.
OVERSEAS EQUITY INVESTOR PARTNERS
By: Overseas Equity Investors Ltd. By: Bradford Associates
By: _____________________________ By: _____________________________
_________________________________ _________________________________
XXXXXXXX XXXXX REVOCABLE TRUST XXXXXXXX XXXXX REVOCABLE TRUST
XX. 0 X/X/X 00/0/00 XX. 0 U/D/T 12/3/91
_________________________________ _________________________________
XXXXXXX XXXXX XXXXXXX XXXXXX X. XXXXX
_________________________________ _________________________________
M. XXXX X'XXXXXXXX XXXXX X. XXXXXX, TRUSTEE U/A/D
11/4/78 F/B/O XXXX X. XXXXX
_________________________________ _________________________________
XXXXXXXXX X. XXXXXX XXXXXXX X. XXXXX, TRUSTEE U/A/D
3/28/89 F/B/O BRADFORD TAYBROOK XXXXX
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[SIGNATURE PAGE FOR REGISTRATION RIGHTS AGREEMENT]
_________________________________ _________________________________
XXXXXXX X. XXXXX, TRUSTEE XXXXXXX X. XXXXX, TRUSTEE U/A/D
U/A/D/ 12/16/84 F/B/O XXXXXXX XXX 2/26/88 F/B/O XXXXXXX XXX XXXXXX
XXXXXX
_________________________________ _________________________________
XXXX X. XXXXX, TRUSTEE BRADFORD XXXX XXXXX
U/A/D 3/17/69
_________________________________ _________________________________
XXXXX XXXXXX XXXXX XXXXXX
_________________________________ _________________________________
XXXXX XXXXXXXXXX XXXXXXX X. XXXXXX
_________________________________ _________________________________
XXXXXXX X. XXXXX XXXXXX XXXXX
_________________________________ _________________________________
XXXXXX XXXXXX XXXXXXXXXXX F. O. GABRIELI
_________________________________ _________________________________
XXXX X. XXXXX XXXXXX X. XXXX
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[SIGNATURE PAGE FOR REGISTRATION RIGHTS AGREEMENT]
_________________________________ _________________________________
XXXXX XXXXXXX XX. XXXXXX XXXXXXXXX,
TRUSTEE OF XXXXXXX X. XXXXXXX
CHILDREN'S TRUST
_________________________________ _________________________________
XXXXX XXXXXXX XXXXXXXX X. XXXXXXXX, by
XXXXXXXX X. XXXXXXXX, XX.,
attorney-in-fact
GRUMMAN HILL INVESTMENTS, L.P. EQUUS INVESTMENTS INCORPORATED
By: _____________________________ By: _____________________________
General Partner
FCH FAMILY INVESTMENTS, LTD.
_________________________________ By: _____________________________
XXXX X. XXXXXX XXXXXXXX X. XXXXXXXX, by
XXXXXXXX X. XXXXXXXX, XX.
attorney-in-fact
_________________________________ _________________________________
XXX X. XXXXXXXXX XXXXXXXX X. XXXXXXXX, XX.
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