Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of September 23, 2002, between
Corrpro Companies, Inc., an Ohio corporation (the "COMPANY"), and The Prudential
Insurance Company of America ("PRUDENTIAL").
1. BACKGROUND. The Company is a party to the Note Purchase Agreement
(as amended, the "NOTE AGREEMENT"), dated as of January 21, 1998, by and between
Prudential and the Company, and a letter agreement, dated September 23, 2002
with Prudential (the "SEPTEMBER 2002 LETTER AGREEMENT"), related to the Purchase
Agreement. Pursuant to the September 2002 Letter Agreement, the Company has
agreed, among other things, to issue to Prudential a Stock Subscription Warrant
(such warrant, together with any warrants issued upon the exchange or transfer
of any such warrant, the "WARRANTS") to purchase up to 467,126 shares of the
Company's Common Stock, no par value (the "COMMON STOCK"). This Agreement shall
become effective upon the issuance of the Warrant to Prudential pursuant to the
September 2002 Letter Agreement.
2. REGISTRATION UNDER SECURITIES ACT, ETC.
2.1. REGISTRATION ON REQUEST (a) REQUEST. Upon the written request of
the holder or holders of more than 50% of the Registrable Securities, requesting
that the Company effect the registration under the Securities Act of all or part
of such holders' Registrable Securities and specifying the intended method of
disposition thereof, and whether or not such requested registration is to be an
underwritten offering, the Company will promptly give written notice of such
requested registration to all other holders of Registrable Securities and
thereupon the Company will use its best efforts to effect the registration under
the Securities Act of:
(i) the Registrable Securities which the Company has been so
requested to register by such holders, and
(ii) all other Registrable Securities which the Company has been
requested to register by the holders thereof by written request given to the
Company within 30 days after the giving of such written notice by the Company
(which request shall specify the intended method of disposition of such
Registrable Securities), all to the extent requisite to permit the disposition
(in accordance with the intended methods thereof as aforesaid) of the
Registrable Securities so to be registered.
(b) REGISTRATION OF OTHER SECURITIES. Whenever the Company shall
effect a registration pursuant to this Section 2.1 in connection with an
underwritten offering by one or more holders of Registrable Securities, no
securities other than Registrable Securities shall be included among the
securities covered by such registration unless (a) the managing underwriter of
such offering shall have advised each holder of Registrable Securities to be
covered by such registration in writing that the inclusion of such other
securities would not adversely affect such offering or (b) the holders of more
than 50% of the Registrable Securities to be covered by such registration shall
have consented in writing to the inclusion of such other securities.
(c) REGISTRATION STATEMENT FORM. Registrations under this Section 2.1
shall be on such appropriate registration form of the Commission (i) as shall be
selected by the Company and (ii) as shall permit the disposition of such
Registrable Securities in accordance with the intended method or methods of
disposition specified in their request for such registration. The Company agrees
to include in any such registration statement all information which holders of
Registrable Securities being registered shall reasonably request.
(d) EXPENSES. The Company will pay all Registration Expenses in
connection with any registration requested pursuant to this Section 2.1 (whether
or not such registration shall be effected).
(e) EFFECTIVE REGISTRATION STATEMENT. A registration requested
pursuant to this Section 2.1 shall not be deemed to have been effected (i)
unless a registration statement with respect thereto has become effective, (ii)
if after it has become effective, such registration is interfered with by any
stop order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason so as to materially interfere with
the distribution thereunder, (iii) if the conditions to closing specified in the
purchase agreement or underwriting agreement entered into in connection with
such registration are not satisfied or waived or (iv) unless the holders of the
Registrable Securities requested to be included in such registration are able to
register at least 80% of the Registrable Securities requested to be included in
such registration.
(f) SELECTION OF UNDERWRITERS. If a requested registration pursuant
to this Section 2.1 involves an underwritten offering, the underwriter or
underwriters thereof shall be selected by the holders of more than 66-2/3% of
the Registrable Securities requested to be so registered and shall be reasonably
acceptable to the Company.
(g) PRIORITY IN REQUESTED REGISTRATIONS. If a requested registration
pursuant to this Section 2.1 involves an underwritten offering, and the managing
underwriter shall advise the Company in writing (with a copy to each holder of
Registrable Securities requesting registration) that, in its opinion, the number
of securities requested to be included in such registration exceeds the number
which can be sold in such offering without causing a price reduction that would
be below a price range reasonably acceptable to the holders of 66-2/3% or more
of the Registrable Securities requested to be included in such registration, the
Company will include in such registration, to the extent of the number which the
Company is so advised can be sold in such offering, Registrable Securities
requested to be included in such registration and Common Stock requested to be
included in such registration pursuant to the Banks Registration Rights
Agreement, allocated pro rata among the holders thereof requesting such
registration on the basis of the numbers of such Registrable Securities or such
Common Stock requested to be included by such holders. In connection with any
registration as to which the provisions of this clause (g) apply, no securities
other than Registrable Securities and Common Stock requested to be included in
such registration pursuant to the Banks Registration Rights Agreement shall be
covered by such registrations.
(h) LIMITATIONS. Anything in Section 2.1(a) to the contrary
notwithstanding, the Company will not be required to effect a registration
pursuant to this Section 2.1(a) at any time (i) prior to July 31, 2003, (ii)
unless the request for such registration covers at least 50% of
2
the Registrable Securities, (iii) after the Company has effected one (1)
registration pursuant to Section 2.1(a), or (iv) after the tenth anniversary of
the date hereof; provided, however, that clauses (ii), (iii) and (iv) shall not
apply to, and shall not limit in any respect (including the number of or
timeframe for), Short Form Registrations for non-underwitten sales of securities
through market transactions that the Company is obligated to effect pursuant to
requests made under Section 2.1(a); provided further, however, that the Company
shall not be obligated to effect any such Short Form Registration if, at the
time such registration is requested, all Registrable Securities can be sold
within a given three month period without compliance with the registration
requirements of the Securities Act pursuant to Rule 144 (or its successor
provision).
2.2 INCIDENTAL REGISTRATION. (a) RIGHT TO INCLUDE REGISTRABLE
SECURITIES. If the Company at any time proposes to register any of its
securities under the Securities Act (other than by a registration on Form S-8 or
any successor or similar form and other than pursuant to Section 2.1), whether
or not for sale for its own account, each such time it will give prompt written
notice to all holders of Registrable Securities of its intention to do so and of
such holders' rights under this Section 2.2. Upon the written request of any
such holder made within 30 days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to be disposed of by
such holder and the intended method of disposition thereof), the Company will
use its best efforts to effect the registration under the Securities Act of all
Registrable Securities which the Company has been so requested to register by
the holders thereof, to the extent requisite to permit the disposition (in
accordance with the intended methods thereof as aforesaid) of the Registrable
Securities so to be registered, provided that if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register or to
delay registration of such securities, the Company may, at its election, give
written notice of such determination to each holder of Registrable Securities
and, thereupon, (i) in the case of a determination not to register, shall be
relieved of its obligation to register any Registrable Securities in connection
with such registration (but not from its obligation to pay the Registration
Expenses in connection therewith), without prejudice, however, to the rights of
any holder or holders of Registrable Securities entitled to do so to request
that such registration be effected as a registration under Section 2.1, and (ii)
in the case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the delay in
registering such other securities. No registration effected under this Section
2.2 shall be deemed to have been effected pursuant to Section 2.1 or shall
relieve the Company of its obligation to effect any registration upon request
under Section 2.1. The Company will pay all Registration Expenses in connection
with each registration of Registrable Securities requested pursuant to this
Section 2.2.
(b) PRIORITY IN INCIDENTAL REGISTRATIONS. If (i) a registration
pursuant to this Section 2.2 involves an underwritten offering of the securities
so being registered, whether or not for sale for the account of the Company, to
be distributed (on a firm commitment basis) by or through one or more
underwriters of recognized standing under underwriting terms appropriate for
such a transaction, (ii) the Registrable Securities so requested to be
registered for sale for the account of holders of Registrable Securities are not
also to be included in such underwritten offering (because the Company has not
been requested so to include such Registrable Securities pursuant to Section
2.4(b), or if so requested, is not obligated to do so under Section 2.4 (b)),
and (iii) the managing underwriter of such underwritten offering shall inform
the Company and the
3
holders of the Registrable Securities requesting such registration by letter of
its belief that the number of securities requested to be included in such
registration exceeds the number which can be sold in (or during the time of)
such offering, then the Company may include all securities proposed by the
Company to be sold for its own account and may decrease the number of
Registrable Securities and other securities of the Company so requested to be
included in such registration (pro rata among the holders thereof on the basis
of the numbers of such securities requested to be included by such holders) to
the extent necessary to reduce the number of securities to be included in the
registration to the level recommended by the managing underwriter.
(c) LIMITATIONS. Anything in Section 2.2(a) to the contrary
notwithstanding, the Company will not be required to register any Registrable
Securities as otherwise required by Section 2.2(a) at any time after the tenth
anniversary of the date hereof.
2.3. REGISTRATION PROCEDURES. If and whenever the Company is required
to use its best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 2.1 and 2.2, the Company will
as expeditiously as possible:
(i) prepare and (as soon thereafter as possible or in any event no
later than 60 days after the end of the period within which requests for
registration may be given to the Company) file with the Commission the requisite
registration statement to effect such registration and thereafter use its best
efforts to cause such registration statement to become effective, provided that
the Company may discontinue any registration of its securities which are not
Registrable Securities (and, under the circumstances specified in Section
2.2(a), its securities which are Registrable Securities) at any time prior to
the effective date of the registration statement relating thereto;
(ii) prepare and file with the 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 and
to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement until such
time as all of such securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such registration statement;
(iii) furnish to each seller of Registrable Securities covered by
such registration statement such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus contained in
such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act, and
such other documents, as such seller may reasonably request;
(iv) use its best efforts to register or qualify all Registrable
Securities and other securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions as each seller
thereof shall reasonably request, to keep such registration or qualification in
effect for so long as such registration statement remains in effect, and take
any
4
other action which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the securities
owned by such seller, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not, but for the requirements of this clause (iv),
be obligated to be so qualified or to consent to general service of process in
such jurisdiction;
(v) use its best efforts to cause all Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Registrable Securities;
(vi) furnish to each seller of Registrable Securities:
(x) an opinion of counsel for the Company, dated the effective
date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), addressed to and
reasonably satisfactory in form and substance to each such seller and
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) as are
customarily covered in opinions of issuer's counsel delivered to the
underwriters in underwritten public offerings of securities and such
other legal matters as any such seller may reasonably request, and
(y) if such registration includes an underwritten public
offering, a copy of any "comfort" letter delivered to any underwriter
by the independent public accountants who have certified the
Company's financial statements included in such registration
statement;
(vii) notify each seller 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, upon discovery by the Company
that, or upon 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 any material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, and at the request of any
such seller promptly prepare and furnish to such seller a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made;
(viii) prepare and file with the Commission, promptly upon the
request of any seller of such Registrable Securities, any amendments or
supplements to such registration statement or prospectus which, in the opinion
of counsel selected by the holder or holders of a majority of the Registrable
Securities being registered, is required under the Securities Act or the
5
rules and regulations thereunder in connection with the distribution of
Registrable Securities by such seller;
(ix) advise each seller of such Registrable Securities, promptly
after it shall receive notice or obtain knowledge thereof, of the issuance of
any stop order by the Commission suspending the effectiveness of such
registration statement or the initiation or threatening of any proceeding for
such purpose and promptly use all reasonable efforts to prevent the issuance of
any stop order or to obtain its withdrawal if such stop order should be issued;
(x) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least 12 months, but not more than 18 months, beginning with the
first full calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act, notify each seller of Registrable Securities of any
request by the Commission for the amending or supplementing of such registration
statement or prospectus or for additional information, and furnish to each such
seller at least two business days prior to the filing thereof a copy of any
amendment or supplement to such registration statement or prospectus and not
file any thereof to which any such seller shall have reasonably objected on the
grounds that such amendment or supplement does not comply in all material
respects with the requirements of the Securities Act or of the rules or
regulations thereunder;
(xi) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration statement
from and after a date not later than the effective date of such registration
statement;
(xii) use its best efforts to list all Registrable Securities covered
by such registration statement on any securities exchange on which any
securities of the same class as such Registrable Securities are then listed; and
(xiii) enter into such agreements and take such other actions
(including, but not limited to, effecting a stock split or combination of
shares) as the Requisite Holders shall reasonably request in order to expedite
or facilitate the disposition of such Registrable Securities.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company such information regarding
such seller and the distribution of such securities as the Company may from time
to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that upon receipt of any notice from the Company of the
happening of any event of the kind described in clause (vii) of this Section
2.3, such holder will forthwith discontinue such holder's disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by clause (vii) of this Section
2.3 and, if so directed by the Company, will deliver to the Company (at the
Company's expense) all copies, other than permanent file
6
copies, then in such holder's possession of the prospectus relating to such
Registrable Securities current at the time of receipt of such notice.
2.4 UNDERWRITTEN OFFERINGS. (a) REQUESTED UNDERWRITTEN OFFERINGS. If
requested by the underwriters for any underwritten offering by holders of
Registrable Securities pursuant to a registration requested under Section 2.1,
the Company will enter into an underwriting agreement with such underwriters for
such offering, such agreement to be reasonably satisfactory in substance and
form to the Company and to each such holder and the underwriters and to contain
such representations and warranties by the Company and such other terms as are
generally prevailing in underwriting agreements of the same type, including,
without limitation, indemnities to the effect and to the extent provided in
Section 2.6. The holders of Registrable Securities to be distributed by such
underwriters shall be parties to such underwriting agreement and may, at their
option, require that any or all of the representations and warranties by, and
the other agreements on the part of the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of such holders of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement shall also be
conditions precedent to the obligations of such holders of Registrable
Securities. Any such holder of Registrable Securities shall not be required to
make any representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding such
holder, such holder's Registrable Securities and such holder's intended method
of distribution and any other representation required under the Securities Act
or any applicable state securities laws in connection with any registration
contemplated by Section 2.1 or Section 2.2.
(b) INCIDENTAL UNDERWRITTEN OFFERINGS. If the Company at any time
proposes to register any of its securities under the Securities Act as
contemplated by Section 2.2 and such securities are to be distributed by or
through one or more underwriters, the Company will, if requested by any holder
of Registrable Securities as provided in Section 2.2 and subject to the
provisions of Section 2.2(b), arrange for such underwriters to include all the
Registrable Securities to be offered and sold by such holder among the
securities to be distributed by such underwriters. In the event that the
managing underwriter of such underwritten offering shall inform the Company and
the holders of the Registrable Securities requesting the inclusion of
Registrable Securities in such offering by letter of its belief that the number
of securities requested to be included in such offering would materially
adversely affect such offering, then the Company may include in such offering
all securities proposed by the Company to be sold for its own account and may
decrease the number of Registrable Securities and other securities so requested
to be included in such offering pro rata among the holders thereof on the basis
of the numbers of such securities requested to be included by such holders to
the extent necessary to reduce the number of securities to be included in such
offering to the level recommended by the managing underwriter. The holders of
Registrable Securities to be distributed by such underwriters shall be parties
to the underwriting agreement between the Company and such underwriters and may,
at their option, require that any or all of the representations and warranties
by, and the other agreements on the part of, the Company to and for the benefit
of such underwriters shall also be made to and for the benefit of such holders
of Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement shall also be
conditions precedent to the obligations of such holders of Registrable
Securities. Any such holder of Registrable Securities shall not be required to
make
7
any representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding such
holder, such holder's Registrable Securities and such holder's intended method
of distribution and any other representation required under the Securities Act
or any applicable state securities laws in connection with any registration
contemplated by Section 2.1 or Section 2.2.
2.5. PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the holders of Registrable
Securities registered under such registration statement, their underwriters, if
any, and their respective counsel and accountants, the opportunity to
participate in the preparation of such registration statement, each prospectus
included therein or filed with the Commission, and each amendment thereof or
supplement thereto, and will give each of them such access to its books and
records and such opportunities to discuss the business of the Company with its
officers and the independent public accountants who have certified its financial
statements as shall be necessary, in the reasonable opinion of such holders' and
such underwriters' respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act; provided that the holders of such
Registrable Securities shall be responsible for the fees and expenses of such
holders' respective counsel and accountants incurred solely in connection with
this Section 2.5.
2.6. INDEMNIFICATION. (a) INDEMNIFICATION BY THE COMPANY. In the
event of any registration of any securities of the Company under the Securities
Act, the Company will, and hereby does, in the case of any registration
statement filed pursuant to Section 2.1 or 2.2 indemnify and hold harmless the
seller of any Registrable Securities covered by such registration statement, its
directors and officers, each other Person who participates as an underwriter in
the offering or sale of such securities and each other Person, if any, who
controls such seller or any such underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such seller or any such director or officer or underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, 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, and the Company will reimburse such seller and each such
director, officer, underwriter and controlling person for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
any such preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by such seller
specifically stating that it is for use in the preparation thereof. Such
indemnity shall remain in full force and effect regardless of any investigation
made
8
by or on behalf of such seller or any such director, officer, underwriter
or controlling person and shall survive the transfer of such securities by such
seller.
(b) INDEMNIFICATION BY THE SELLERS. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed pursuant to Section 2.3, that the Company shall have received an
undertaking satisfactory to it from the prospective seller of such Registrable
Securities, to indemnify and hold harmless (in the same manner and to the same
extent as set forth in Section 2.6(a)) the Company, its directors and officers
and each other Person, if any, who controls the Company within the meaning of
the Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company through an instrument duly executed
by such seller specifically stating that it is for use in the preparation of
such registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement. Such indemnity shall remain in full force
and effect, regardless of any investigation made by or on behalf of the Company
or any such director, officer or controlling Person and shall survive the
transfer of such securities by such seller.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in Section 2.6(a) or 2.6(b), such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action, provided that
the failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under Section 2.6(a) or
2.6(b), as the case may be, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying party
shall be entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
(d) OTHER INDEMNIFICATION. Indemnification similar to that specified
in this Section 2.6 (with appropriate modifications) shall be given by the
Company and each seller of Registrable Securities with respect to any required
registration or other qualification of securities under any Federal or state law
or regulation of any governmental authority other than the Securities Act.
9
(e) INDEMNIFICATION PAYMENTS. The indemnification required by this
Section 2.6 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(f) CONTRIBUTION. If the indemnification provided for in this Section
2.6 from the indemnifying party is unavailable to an indemnified party hereunder
in respect of any losses, claims, damages, liabilities or expenses referred to
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
and indemnified party in connection with the actions which resulted in such
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 any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or 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 action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding. In no event shall the liability of any seller of
Registrable Securities hereunder be greater in amount than the net amount
received by such seller from the sale of Registrable Securities pursuant to such
registration statement. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 2.6(f) were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in this Section 2.6(f). No
person guilty of fraudulent misrepresentations (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
or entity who was not guilty of such fraudulent misrepresentation.
2.7. ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company will
not effect or permit to occur any combination or subdivision of shares which
would adversely affect the ability of the holders of Registrable Securities to
include such Registrable Securities in any registration of its securities or the
marketability of such Registrable Securities under any such registration.
2.8. OTHER REGISTRATION RIGHTS. The Company will not grant to any
Person the right to require the Company to register any equity securities of the
Company, or any securities convertible or exchangeable into or exercisable for
such securities, which conflicts with the registration rights granted hereunder.
3. DEFINITIONS. Capitalized terms used herein which are defined in
the Note Agreement and are not otherwise defined herein shall have the meanings
as defined in the Note Agreement. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
10
BANKS REGISTRATION RIGHTS AGREEMENT: The Registration Rights Agreement,
dated as of the date of this Agreement, among the Company and the
Banks.
COMMISSION: The Securities and Exchange Commission or any other Federal
agency at the time administering the Securities Act.
COMPANY: As defined in the introductory paragraph of this Agreement.
EXCHANGE ACT: The Securities Exchange Act of 1934, or any similar
Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference
to a particular section of the Securities Exchange Act of 1934 shall
include a reference to the comparable section, if any, of any such
similar Federal statute.
NOTE AGREEMENT: As defined in Section 1.
PERSON: A corporation, an association, a partnership, a business, an
individual, a limited liability company, a governmental or political
subdivision thereof or a governmental agency.
PRUDENTIAL: As defined in Section 1.
REGISTRABLE SECURITIES: (a) Any Warrant Shares, (b) any securities
purchased upon exercise, or issued upon conversion or exchange, of
other Registrable Securities, and (c) any securities issued or issuable
with respect to any other Registrable Securities by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or
otherwise. As to any particular Registrable Securities, once issued
such securities shall cease to be Registrable Securities when (i) a
registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such
registration statement, (ii) such securities shall have been
distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, or (iii) such securities shall
have ceased to be outstanding. For purposes of this Agreement, a Person
will be deemed to be a holder of Registrable Securities whenever such
Person has the right to acquire or with the passage of time would have
the right to acquire such Registrable Securities (by conversion,
exercise or otherwise, including successive exercises and conversions),
whether or not such acquisition has actually been effected.
REGISTRATION EXPENSES: All expenses incident to the Company's
performance of or compliance with Section 2, including, without
limitation, all registration, filing and National Association of
Securities Dealers fees, all fees and expenses of complying with
securities or blue sky laws, all word processing, duplicating and
printing expenses, messenger and delivery expenses, the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or "cold
comfort" letters required by or incident to such performance and
compliance, the fees and disbursements incurred by the holders of
Registrable Securities to be registered (including the fees and
disbursements of any counsel and accountants retained by the Requisite
Holders), premiums and other costs of policies of insurance against
liabilities
11
arising out of the public offering of the Registrable Securities being
registered and any fees and disbursements of underwriters customarily
paid by issuers or sellers of securities, but excluding underwriting
discounts and commissions and transfer taxes, if any, provided that, in
any case where Registration Expenses are not to be borne by the
Company, such expenses shall not include salaries of Company personnel
or general overhead expenses of the Company, auditing fees, premiums or
other expenses relating to liability insurance required by underwriters
of the Company or other expenses for the preparation of financial
statements or other data normally prepared by the Company in the
ordinary course of its business or which the Company would have
incurred in any event.
REQUISITE HOLDERS: With respect to any registration of Registrable
Securities by the Company pursuant to Section 2, any holder or holders
of 50% or more of the Registrable Securities to be so registered.
SECURITIES ACT: The Securities Act of 1933, or any similar Federal
statute, and the rules and regulations of the Commission thereunder,
all as of the same shall be in effect at the time. References to a
particular section of the Securities Act of 1933 shall include a
reference to the comparable section, if any, of any such similar
Federal Statute.
SHORT FORM REGISTRATION: A Registration on Form S-2 or S-3 or any
successor form or similar short form registration under the Securities
Act.
WARRANTS: As defined in Section 1.
WARRANT SHARES: Any shares of Common Stock issued or issuable upon the
exercise of the Warrants.
4. RULE 144. If the Company shall have filed a registration
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act, the
Company will file the reports required to be filed by it under the Securities
Act and the Exchange Act and the rules and regulations adopted by the Commission
thereunder (or, if the Company is not required to file such reports, will, upon
the request of any holder of Registrable Securities, make publicly available
other information) and will take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (b) any similar rule or regulation hereafter adopted by
the Commission. Upon the request of any holder of Registrable Securities, the
Company will deliver to such holder a written statement as to whether it has
complied with such requirements.
5. AMENDMENTS AND WAIVERS. This Agreement may be amended and
the Company may take any action herein prohibited or omit to perform any act
herein required to be performed by it, only if the Company shall have obtained
the written consent to such amendment, action or omission to act, of the holder
or holders of more than 66-2/3% of the Registrable Securities. Each holder of
any Registrable Securities at the time or thereafter
12
outstanding shall be bound by any consent authorized by this Section 5, whether
or not such Registrable Securities shall have been marked to indicate such
consent.
6. NOMINEES FOR BENEFICIAL OWNERS. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election, be treated as the holder of
such Registrable Securities for purposes of any request or other action by any
holder or holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of Registrable Securities held by any
holder or holders of Registrable Securities contemplated by this Agreement. If
the beneficial owner of any Registrable Securities so elects, the Company may
require assurances reasonably satisfactory to it of such owner's beneficial
ownership of such Registrable Securities.
7. NOTICES. All communications provided for hereunder shall be
sent by first-class mail and (a) if addressed to a party other than the Company,
addressed to such party in the manner set forth in the Note Agreement, or at
such other address as such party shall have furnished to the Company in writing,
or (b) if addressed to the Company, at 0000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000
or at such other address, or to the attention of such other officer, as the
Company shall have furnished to each holder of Registrable Securities at the
time outstanding; provided, however, that any such communication to the Company
may also, at the option of any of the parties hereunder, be either delivered to
the Company at its address set forth above or to any officer of the Company.
8. ASSIGNMENT. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, and whether or not any express assignment
shall have been made, to provisions of this Agreement which are for the benefit
of the parties hereto other than the Company shall also be for the benefit of
and enforceable by any subsequent holder of any Registrable Securities.
9. DESCRIPTIVE HEADINGS. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for references
only and shall not limit or otherwise affect the meaning hereof.
10. SPECIFIC PERFORMANCE. The parties hereto recognize and
agree that money damages may be insufficient to compensate the holders of any
Registrable Securities for breaches by the Company of the terms hereof and,
consequently, that the equitable remedy of specific performance of the terms
hereof will be available in the event of any such breach.
11. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the laws of the State of New York.
12. COUNTERPARTS. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
SIGNATURES ON THE FOLLOWING PAGE.]
13
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their respective officers hereunto duly authorized
as of the date first above written.
CORRPRO COMPANIES, INC.
By: /s/ Xxxxxx X. Xxx
--------------------------------------
Title: President, CEO
--------------------------------
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Title: Senior Vice President
14
