REGISTRATION RIGHTS AGREEMENT
To: Xxxxxxx X. Xxxxxx (Name of "Subscriber")
Xxxxx 000
Xxx Xxxxxxx Xxxxx
0000 Xxxxxxxxx Xxxxxx, X.X.,
Xxxxxxx, XX 00000 (Address of "Subscriber")
1. Demand Registration. Beginning six months from the date hereof, and upon
written request by you (assuming you retain at least a majority in interest of
the Shares), and assuming Form S-3 is available for such a transaction under the
Securities Act of 1933 (the "1933 Act"), the Company will, upon no less than 45
days' notice, use its best efforts to file a registration statement on Form S-3
(utilizing Rule 415 to the extent available) to register the sale of the Shares
owned by the subscriber identified below. The Company shall only be required to
file two such registration statements.
2. Expenses of Offering. Without regard to whether the registration
statement relating to the proposed sale of the Shares is made effective or the
proposed sale of such shares is carried out, the Company shall pay the fees and
expenses in connection with any such registration including, without limitation,
legal, accounting and printing fees and expenses in connection with such
registration statements, the registration filing and examination fees paid under
the 1933 Act and state securities laws and the filing fees paid to the American
Stock Exchange. Notwithstanding the foregoing, each selling stockholder shall be
responsible for the payment of underwriting discounts and commission, if any,
applicable transfer taxes and fees and charges of any attorneys or other
advisers retained by such selling stockholders.
3. Registration Procedures and Expenses. If and whenever pursuant to the
provisions of this Agreement the Company effects registration of Shares under
the Act of 1933 and state securities laws, the Company shall:
(a) Prepare and file with the Securities and Exchange Commission a
registration statement with respect to such securities and use its best efforts
to cause such registration statement to become and remain effective;
(b) Use its best efforts to register or qualify the securities covered
by such registration statement under the securities or blue sky laws of such
jurisdictions as the underwriters shall reasonably request, and do any and all
other acts and things which may be necessary or advisable (in the sole opinion
of the Company) to enable the stockholders offering such securities to
consummate the disposition thereof; provided, however, that in no event shall
the Company be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action which would subject it to the
service of process in suits other than those arising out of the offer or sale of
the securities covered by such registration statement in any jurisdictions where
it is not now so subject.
4. Limitation on Obligations to Register; Grant of "Piggyback" Rights.
Anything in this Agreement to the contrary notwithstanding:
(a) The Company shall not be obligated pursuant to Section 1. to
effect any registration after one year from the date hereof, or such shorter (or
longer) period as may be specified by amendment to the first sentence of Rule
144(d)(1) promulgated under the 0000 Xxx.
(b) The Company may defer the filing of any registration statement or
suspend the use of a prospectus under a currently effective registration
statement under Section 1. at its discretion for good cause. For example, the
Company may defer the filing ("Filing") if (i) the Company is engaged in active
negotiations with respect to the acquisition of a "significant subsidiary" as
defined in Regulation S-X promulgated by the SEC under the Securities Exchange
Act of 1934, as amended ("Exchange Act") and the 1933 Act which would in the
opinion of counsel for the Company be required to be disclosed in the Filing; or
(ii) in the opinion of counsel for the Company, the Filing would require the
inclusion therein of certified financial statements other than those in respect
of the Company's most recently ended full fiscal year and any preceding full
fiscal year, and the Company may then, at its option, delay the imposition of
its obligations pursuant to Section 1. hereof until the earlier of (A) the
conclusion or termination of such negotiations, or the date of availability of
such certified financial statements, whichever is applicable, or (B) 120 days
from the date of the registration request (which period may be extended for up
to two additional, consecutive 90-day periods at the written election of Company
delivered, prior to the expiration of the deferred period, to the stockholders).
In the event the Company has deferred a requested Filing pursuant to the
preceding paragraph such deferral period shall end if the Company registers
shares for resale by another stockholder of the Company on Form S-3.
In the event the Company undertakes an underwritten public offering
for cash for its own account, the Company shall provide the subscriber (assuming
subscriber retains at least a majority of the Shares) and up to five of
subscriber's permitted assigns (subscriber and each such assignee:
"Stockholders") with customary "piggyback" rights, subject to (i) the right of
the managing underwriters to object to including such shares, (ii) any currently
existing piggyback rights, and (iii) the condition that each requesting
Stockholder shall cooperate in the registration process in all material
respects, including execution by such Stockholder of the underwriting agreement
and related stockholder lock-up agreement agreed to by the Company and the
underwriters.
(c) The Company may amend any registration statement to withdraw
registration of any selling Stockholder's Shares if such Stockholder shall fail
or refuse to cooperate in full and in a timely manner with all reasonable
requests relating to such registration and the public offering generally made by
the Company, the underwriters (if any), their respective counsel and the
Company's auditors.
5. Indemnification
(a) With respect to any registration statement relating to any Shares
sold by each Stockholder, such Stockholder will indemnify the Company and each
person, if any, who controls the Company within the meaning of the "1933 Act,"
in writing, in form and substance acceptable to counsel for the Company, against
any and all expenses, claims, damages or liabilities to which the Company may
become subject under the 1933 Act, the Exchange Act of 1934 (the "Exchange
Act"), as amended, or otherwise, insofar as such expenses, claims, damages or
liabilities arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any preliminary prospectus,
registration statement, final prospectus or any amendment or supplement thereto,
or any filing made pursuant to the Exchange Act, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make statements contained therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
therein in reliance upon and in conformity with written information furnished to
the Company by that Stockholder expressly for use in the preparation thereof.
Furthermore, each Stockholder will indemnify the Company for the failure by such
Stockholder, or its agent, to delivery any prospectus required to be delivered
in connection with the sale by such Stockholder of any Shares.
(b) With respect to any registration statement relating to any Shares
held by a Stockholder, the Company will indemnify each Stockholder, each
underwriter of the Shares, and each person, if any, who controls a Stockholder
or any such underwriter within the meaning of the Securities Act, against all
expenses, claims, damages or liabilities to which either Stockholder, any such
underwriter, or any such controlling person may become subject, under the
Securities Act, the Exchange Act, applicable state securities laws, or
otherwise, insofar as such expenses, claims, damages or liabilities arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any preliminary prospectus, registration statement,
final prospectus or any amendment or supplement thereto, or any filing under the
Exchange Act, or arise out of or are based upon any untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by a
Stockholder expressly for use in the preparation thereof; and (y) the Company
shall not be liable to any underwriter or any controlling person of such
underwriter in any such case to the extent that such expenses, claims, damages
or liabilities arise out of or are based upon any untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by such
underwriter expressly for use in the preparation thereof. Any such underwriter,
as a condition to obtaining the indemnity agreement referred to in this Section
shall be required to indemnify the Company on the same terms as provided in
Section 5(a) in the case of the Stockholders in respect of the written
information furnished by such underwriter which is referred to in clause (y) of
this Section 5(b).
6. Rule 144. The Company will use its commercially reasonable best efforts
to take such action as may be necessary to ensure that the requirements of Rule
144(c) under the 1933 Act are satisfied so as to enable Subscriber to offer or
sell the shares pursuant to Rule 144, subject to compliance with the provisions
of paragraphs (d) through (h), or (k), of Rule 144. Notwithstanding the
foregoing, the Company shall not be liable for any failure by the Company to
meet such requirements, or a decrease in price of Shares, due to circumstances
beyond its control.
7. Cooperation. The Company will cooperate with Subscriber in good faith by
promptly processing requests for confirmation of compliance with Rule 144 by
Subscriber, and requests for removal of restrictive legends and stop transfer
orders, as permitted by applicable law.
SUBSCRIBER: COMPANY:
Name: Proactive Technologies, Inc.
By: By:
Name: Xxxxxxx X. Xxxxxx Name:
Title: Title:
Date: January 29, 1999 Date:
