EXHIBIT 10.25
OWNERSHIP AND REGISTRATION RIGHTS AGREEMENT
EVCI Career Colleges Incorporated
0 Xxx Xxx Xxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This will confirm our agreement in connection with the purchase by the
undersigned today (each a "Holder" and collectively, the "Holders") of a total
of 500,000 shares (the "Shares") of common stock of EVCI Career Colleges
Incorporated ("EVCI") from the persons identified on the Seller Signature Pages
to the Transfer Instrument dated today, a copy of which has been provided to
EVCI (the "Transfer Instrument").
Section 1. REPRESENTATIONS AND WARRANTIES
1.1 Each Holder hereby severally makes to EVCI the representations
and warranties made by the Holder in (a) through (d) of the Transfer Instrument,
as though fully set forth herein.
1.2 EVCI hereby represents and warrants to each Holder that the
execution, delivery and performance of this Agreement by EVCI has been duly
authorized by all requisite corporate action and will not violate any provision
of law, any order of any court or other agency of government, the articles of
organization or By-laws of EVCI or any provision of any other agreement or
instrument to which it is a party and that this Agreement constitutes the legal,
valid and binding obligation of EVCI, enforceable in accordance with its terms.
Section 2. SHARES OWNED
2.1 Each Holder severally represents and warrants to EVCI that the
purchase of Shares by the Holder will not result in the Holder and its
"affiliates," as defined in Rule 144 of the Securities Exchange Act of 1934, as
amended (the "Securities Exchange Act"), being deemed the owner of more than
4.99% of outstanding shares of common stock of EVCI, assuming that there are at
least 12,002,241 shares of Common Stock outstanding immediately after such
purchase. Each Holder agrees that such Holder and its affiliates will not alone
or as a part of a "group," as that term is used in Regulation 13D-G under the
Securities Exchange Act, at any time own more than 4.99% of EVCI's outstanding
common stock unless otherwise authorized by EVCI's board of directors and agreed
to in writing by EVCI.
Section 3. REGISTRATION RIGHTS
3.1 Registration. EVCI shall include the resale of the Shares in a
registration statement on Form S-3 or any comparable or successor form or forms
(the "Registration Statement") (provided that if the Company is not entitled to
use Form S-3 or any successor thereto it shall file a registration statement on
Form S-1 or comparable or successor form) filed by it with the Securities and
Exchange Commission ("SEC") by not later than the earlier of the (i) 30th day
following the date of this Agreement, if it has received the written consent to
do so, in form reasonably satisfactory to EVCI, from all holders of Registrable
Securities at least three business days prior to such initial filing and (ii)
second business day after the Effective Date. The terms Registrable Securities
and Effective Date shall have the meanings as ascribed to them in the
Registration Rights Agreement, a form of which was filed as Exhibit 10.2 to
EVCI's Form 8-K filed with the SEC on March 31, 2004. EVCI's obligation to
include the resale of the shares in the Registration Statement is subject to the
Holder's compliance with Section 3.1(j) with respect to such Holder's Shares.
(a) EVCI shall use its best efforts to cause the Registration
Statement to be declared effective within 60 days after its initial filing with
the SEC and to remain effective until the earlier of the date (i) as of which
the Holder may sell all of the Shares without restriction pursuant to Rule
144(k) and (ii) when the Holder shall have sold all of the Shares.
(b) EVCI shall prepare and file with the SEC such amendments
and supplements to the Registration Statement and the Prospectus included in the
Registration Statement (the "Prospectus") as may be necessary to keep the
Registration Statement continuously effective, pursuant to Rule 415, for the
period specified in Section 3(a) and comply with the provisions of the
Securities Act of 1933, as amended (the "Securities Act") with respect to the
disposition of all the Shares covered by the Registration Statement in
accordance with the Holders' intended method of disposition set forth in the
Registration Statement for such period; provided, however, notwithstanding the
foregoing provisions of this Section 3(b), EVCI may suspend the use of the
Registration Statement for a period not to exceed 60 days (whether or not
consecutive) in any 12-month period if EVCI's Board of Directors determines in
good faith (after consulting with EVCI's counsel and, if appropriate, its
independent auditors) that because of valid and material business developments
(which, under applicable securities laws, would be required to be disclosed in
an amendment to the Prospectus), including pending mergers or other business
combination transactions, the planned acquisition or divestiture of assets,
pending material corporate developments and similar events, it is advisable to
suspend such use and, prior to or contemporaneously with suspending such use,
EVCI provides each Holder with written notice of such suspension, which notice
need not specify the nature of the event giving rise to such suspension. At the
end of any such suspension period, EVCI shall provide each Holder with written
notice of the termination of such suspension.
(c) EVCI shall permit the Holders to review and comment upon
the Registration Statement and, upon all future amendments and supplements
thereto, at least three days prior to their filing with the SEC.
(d) EVCI shall furnish to each Holder such number of copies of
the Registration Statement and the Prospectus as Holder reasonably may request
in order to facilitate the public sale or other disposition of such Holder
Shares pursuant to the Prospectus.
(e) EVCI shall register or qualify the Shares covered by the
Registration Statement under the securities or "blue sky" laws of such
jurisdictions as the Holder reasonably shall request.
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(f) EVCI shall cause all Shares covered by the Registration
Statement to be eligible for quotation on the Nasdaq Smallcap market or listed
on such other securities exchange (or quoted on the Nasdaq National Market) on
the same terms and conditions as EVCI Common Shares are then quoted (or listed)
provided that EVCI Common Shares are then quoted on the Nasdaq Smallcap market
or listed on such other securities exchange (or quoted on the Nasdaq National
Market).
(g) While a Prospectus relating to the Shares is required to
be delivered under the Securities Act, EVCI shall promptly notify each Holder of
the happening of any event of which EVCI has knowledge and as a result of which
the Prospectus, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing.
(h) Each Holder agrees that, upon receipt of any notice from
EVCI of the happening of any event of the kind specified in Sections 3(b) or
(g), the Holder will immediately discontinue disposition of the Holder's Shares
pursuant to the Prospectus until the Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(b), and, if so
directed by EVCI, the Holder will deliver to EVCI, or alternatively certify that
it has destroyed, all copies, other than permanent file copies then in Holder's
possession, of the most recent Prospectus at the time of receipt of such notice.
(i) EVCI shall make available for inspection by each Holder,
and any attorney, accountant or other agent retained by the Holder, all
financial and other records, pertinent corporate documents and properties of
EVCI, and cause EVCI's officers, directors and employees to supply all
information reasonably requested by the Holder or such attorney, accountant or
agent in connection with the Registration Statement, provided appropriate
confidentiality agreements are first received by EVCI.
(j) A Holder shall furnish to EVCI in writing such information
with respect to it and the proposed distribution by it, as reasonably shall be
necessary and reasonably requested by EVCI's counsel in writing, in order to
assure compliance with applicable federal and state securities laws.
3.2 Expenses. All expenses incurred by EVCI in complying with
Section 3.1 including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel and independent public
accountants for EVCI, fees and expenses (including counsel fees) incurred in
connection with complying with state securities or "blue sky" laws, Nasdaq fees,
fees of transfer agents and registrars, and costs of issuing the Shares, but
excluding any Selling Expenses and fees and disbursements of any counsel or any
accountant or agent of any Holder, are called "Registration Expenses." All
underwriting discounts and selling commissions applicable to the sale of the
Shares are called "Selling Expenses."
EVCI will pay all Registration Expenses and the Holders will pay all
Selling Expenses.
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3.3 Indemnification.
(a) In connection with the registration and sale of a Holder's
Shares pursuant to the Registration Statement, to the fullest extent permitted
by law, EVCI will indemnify and hold harmless the Holder together with the
Holder's officers, directors, members, partners, employees and agents, and each
other person, if any, who controls Holder within the meaning of the Securities
Act (each a "Controlling Person"), against any losses, claims, damages or
liabilities, joint or several, to which the Holder and the Holder's officers,
directors, members, partners, employees and agents, or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or the Prospectus or any
amendment or supplement thereof, or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or (iii) any violation or alleged
violation by EVCI of the Securities Act, any state securities law, or any rule
or regulation thereunder relating to the offer or sale of the Shares pursuant to
the Registration Statement (but not the Holder's failure to comply with the
prospectus delivery requirements or other rules and regulations under the
Securities Exchange Act of 1934 relating to the Holder's conduct in offering and
selling the Shares). EVCI will promptly reimburse the Holder and each
Controlling Person for any legal or other expenses reasonably incurred by them
in connection with investigation or defending any such loss, claim, damage,
liability or action; provided, however, that EVCI will not be liable in any such
case if and to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission so made in conformity with information furnished by
the Holder or a Controlling Person in writing specifically for use in the
Registration Statement or the Prospectus. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of the
indemnified party.
(b) In connection with the registration and sale of the
Holder's Shares pursuant to the Registration Statement, the Holder will
indemnify and hold harmless EVCI, each person, if any, who controls EVCI within
the meaning of the Securities Act, each officer of EVCI who signs the
Registration Statement, and each director of EVCI, against all losses, claims,
damages or liabilities, joint or several, to which EVCI or such officer,
director, or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus contained therein, or any amendment or supplement
thereof, or (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will promptly reimburse EVCI and each such officer,
director, and controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Holder will have
no liability hereunder unless such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in reliance upon and in conformity with information
pertaining to the Holder and furnished in writing to EVCI by the Holder
specifically for use in the Registration Statement or the Prospectus; and
provided, further, however, that the liability of the Holder hereunder shall be
limited to the proportion of any such loss, claim, damage, liability or expense
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which is equal to the proportion that the public offering price of the Shares
sold by the Holder under the Registration Statement bears to the total public
offering price of all securities sold thereunder, but not in any event to exceed
the net profit received by the Holder from the sale of the Shares covered by the
Registration Statement.
(c) Promptly after receipt by an indemnified party hereunder
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party under this Section 3.3 except and to the extent the
indemnifying party is prejudiced by such omission. In case any such action shall
be brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in and, to the extent it shall wish, to assume and undertake the
defense thereof 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 and undertake the defense thereof, the indemnifying party
shall not be liable to such indemnified party under this Section 3.3 for any
legal expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and of
liaison with counsel so selected; provided, however, that if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
reasonable defenses available to it which are different from or additional to
those available to the indemnifying party or if the interests of the indemnified
party reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) a
Holder or any controlling person of the Holder makes a claim for indemnification
pursuant to this Section 3.3 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction as to which time
to appeal or the denial of the last right of appeal has expired) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 3.3 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of the Holder or any such
controlling person in circumstances for which indemnification is provided under
this Section 3.3, then, and in each such case, EVCI and the Holder will
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after contribution from others) in proportion to their relative
fault provided, however, that, in any such case, (A) the Holder shall not be
required to contribute any amount in excess of the difference between the public
offering price of all the Shares offered by it pursuant to the Registration
Statement and the price paid for the Shares by the Holder; and (B) no person or
entity guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.
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3.4 Enforcement. EVCI acknowledges that there is no adequate remedy
at law for failure by it to comply with the provisions of this Section 3 and
that such failure would not be adequately compensable in damages, and therefore
agrees that its agreements contained in this Section 3 may be specifically
enforced. In the event that EVCI fails to comply with its obligations and
agreements in this Section 3, then, in addition to any other rights or remedies
a Holder may have at law or in equity, EVCI shall indemnify and hold harmless
the Holder from and against any and all manner of loss which it may incur as a
result of such a failure. In addition, EVCI shall also reimburse the Holder for
any and all reasonable legal fees and expenses incurred by it in enforcing its
rights pursuant to this Section 3, regardless of whether any litigation was
commenced.
Section 4. MARKET STANDOFF In connection with an underwritten public
offering by EVCI of at least $5 million in total offering price, if any, the
Holder hereby agrees to be subject to a lockup for up to 180 days following the
effective date of EVCI's registration statement filed with the SEC in connection
with the offering as required by the underwriter(s) thereof. During such period,
the Holder agrees not to sell, transfer or hypothecate any securities of EVCI
without the prior written consent of the underwriter(s). This provision is
self-operating but the Holder agrees to execute and furnish directly to, and for
the express benefit of, the underwriter(s) any confirmation requested by the
underwriter(s).
Section 5. CHOICE OF LAW This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New York without regard
to the principles of conflict of laws.
Section 6. COUNTERPARTS This Agreement may be executed in two or more
identical counterparts, all of which shall be considered one and the same
instrument and shall become effective when counterparts have been signed by each
party and delivered to the other party.
[SIGNATURE PAGE FOLLOWS.]
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SIGNATURE PAGE TO
OWNERSHIP AND REGISTRATION RIGHTS AGREEMENT
RELATING TO THE COMMON STOCK OF
EVCI CAREER COLLEGES INCORPORATED
Dated: April 2, 2004 Wellington Trust Company, National
Association Multiple Collective Investment
Funds Trust,
Emerging Companies Portfolio
By: Wellington Management Company, LLP,
as investment adviser
/s/ Xxxxx X. Xxxxxxx
------------------------------------
By: Xxxxx X. Xxxxxxx, Vice President and
Counsel
Wellington Trust Company, National
Association Multiple Common Trust Funds
Trust, Emerging Companies Portfolio
By: Wellington Management Company, LLP,
as investment advisor
/s/ Xxxxx X. Xxxxxxx
------------------------------------
By: Xxxxx X. Xxxxxxx, Vice President and
Counsel
The Dow Chemical Company Employees'
Retirement Plan
By: Wellington Management Company, LLP,
as investment adviser
/s/ Xxxxx X. Xxxxxxx
------------------------------------
By: Xxxxx X. Xxxxxxx, Vice President and
Counsel
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Xxxxxx Xxxxxx Medical Institute
By: Wellington Management Company, LLP,
as investment adviser
/s/ Xxxxx X. Xxxxxxx
------------------------------------
By: Xxxxx X. Xxxxxxx, Vice President and
Counsel
Oregon Investment Council
By: Wellington Management Company, LLP,
as investment adviser
/s/ Xxxxx X. Xxxxxxx
------------------------------------
By: Xxxxx X. Xxxxxxx, Vice President and
Counsel
The Retirement Program Plan for Employees
of Union Carbide
By: Wellington Management Company, LLP,
as investment adviser
/s/ Xxxxx X. Xxxxxxx
------------------------------------
By: Xxxxx X. Xxxxxxx, Vice President
and Counsel
AGREED:
EVCI CAREER COLLEGES INCORPORATED
By: /s/ Xx. Xxxx X. Xxxxxxxx
-------------------------------------
Xx. Xxxx X. Xxxxxxxx
Chairman
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