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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is dated as of
February 5, 1999, by and among COLLECTORS UNIVERSE, INC., a Delaware corporation
(the "Company") and the stockholder of the Company identified on the signature
page of this Agreement (the "Stockholder"), with reference to the following
facts and circumstances:
A. On this date the Company is issuing, as its initial issuance of
shares, a total of 19,000,000 shares of Common Stock, par value $.001 per share
(the "Shares"), concurrently, to a total of twenty-one Persons (the "Founding
Stockholders"), pursuant to Contribution and Acquisition Agreements, each dated
as of February 3, 1999 (collectively, the "Contribution Agreements" and,
individually, a "Contribution Agreement"), between the Company and the Founding
Stockholders. The Stockholder is one of the Founding Stockholders.
B. The issuance of the Shares to the Founding Stockholders have not been
registered under the 1933 Act (as defined below) and the transferability of the
Shares are subject to restrictions under that Act and also pursuant to a
Stockholders Agreement (the "Stockholders Agreement") to be entered into on the
date hereof by each of the Founding Stockholders, including the Stockholder,
with the Company.
C. In order to induce the Stockholder and other Founding Stockholders to
acquire the Shares and enter into the Stockholders Agreements, the Company has
agreed to grant to each Founding Stockholder registration rights with respect to
the Shares on the terms and subject to the conditions contained in this
Agreement.
AGREEMENT
In consideration of the mutual covenants and agreements set forth
herein, and for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
shall have the meanings specified with respect thereto below:
"1933 Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time.
"Commission" shall mean the Securities and Exchange Commission or
any other Federal agency at the time administering the 1933 Act.
"Common Stock" shall mean the common stock, par value $.001 per
share, of the Company.
"Company" shall have the meaning set forth in the preamble of
this Agreement.
"Contribution Agreement" shall have the meaning specified in the
Recitals to this Agreement.
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"Founding Stockholder" shall have the meaning specified in the
Recitals to this Agreement, but shall also include any Permitted
Assignee (as defined in Section 7.1 below) of any Founding Stockholder.
"Indemnified Party" shall have the meaning specified in Section
5.3.
"Indemnifying Party" shall have the meaning specified in Section
5.3.
"Inspectors" shall have the meaning specified in Section 4.1(h).
"IPO" shall mean the first public offering of Common Stock by
the Company that is registered under the 1933 Act and generates gross
proceeds to the Company of at least $10,000,000.
"Lock-Up Period" means a period of time, that follows the
effectiveness of a registration statement filed under the 1933 Act by
the Company for an offering of shares of its Common Stock or other
securities (whether or not any Stockholders are selling Shares in that
offering), including the registration statement for the Company's IPO
(as defined in Section 2 hereof), during which the Company or any
Stockholders, including any Founding Stockholders, have agreed with any
Underwriters for such offering, to refrain from selling any of their
shares of Common Stock without the consent of such Underwriter.
"Maximum Numbers of Shares" shall have the meaning specified in
Section 3.2.
"Piggy-Back Registration" shall have the meaning specified in
Section 3.
"Records" shall have the meaning specified in Section 4.1(h).
"Registrable Securities" shall mean, collectively, the Shares
and any securities issued or issuable upon any stock dividend, stock
split, recapitalization, merger, consolidation or similar event with
respect to the Shares. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when (i) a
registration statement covering such securities shall have become
effective under the 1933 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 Rule 144A (or any successor provisions) under the 1933 Act, (iii)
such securities have become eligible to be sold pursuant to Section (k)
of Rule 144, or (iv) such securities shall have ceased to be
outstanding.
"Registration Rights Period" shall mean the period commencing on
the 180th day following the consummation of the Company's IPO (as
defined above) and continuing until the earlier of (i) the 5th
anniversary of such consummation or (ii) the date that the Registrable
Securities cease to be such.
"Requested Registration" shall have the meaning specified in
Section 2.
"Selling Holder" shall mean a Founding Stockholder who is
selling Registrable Securities pursuant to a registration statement
under the 1933 Act.
"Shares" shall have the meaning set forth in the recitals of
this Agreement.
"Stockholders Agreement" shall have the meaning set forth in the
recitals to this Agreement.
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"Underwriter" shall mean a securities dealer who purchases any
Registrable Securities as principal in an underwritten offering and not
as part of such dealer's market-making activities.
Capitalized terms not otherwise defined herein shall have the meaning
given to them in the Contribution Agreement.
2. Shelf Registration Rights.
2.1 Request for Registration. One or more of the Founding
Stockholders of the Company owning, individually or in the aggregate, not less
than fifteen percent (15%) of the outstanding Common Stock of the Company, at
any time on or after the 90th day following the date that the Company
consummates its IPO and continuing until the end of the Registration Rights
Period, may make a written request for registration under the 1933 Act of all or
part of their Registrable Securities (a "Requested Registration"). Any such
request shall specify the number of shares of Registrable Securities proposed to
be sold by such Founding Stockholders (the "Requesting Stockholders") pursuant
to such Requested Registration. The Company shall give written notice of such
registration request within 15 days after the receipt thereof to all of the
other Founding Stockholders who were not parties to the registration request
(the "Other Founding Stockholders"). Within ten days after receipt of such
notice by the Other Founding Stockholders, such Stockholders may request in
writing that all or any of their Registrable Securities be included in such
registration. Each such request by such Other Founding Stockholders shall
specify the number of Registrable Securities they propose to sell pursuant to
the Requested Registration. The Company shall include in the Requested
Registration at least the total number of Registrable Securities requested to be
included therein by the Founding Stockholders, including the Stockholder, within
the applicable time period specified above in this Section 2.1. Notwithstanding
the foregoing, the Company shall not be obligated to effect more than one
Requested Registration with respect to the Shares under this Section 2 during
the first twelve (12) months following the registration of its shares under
either Section 12(b) or Section 12(g) of the 1934 Act and more than two (2)
additional Requested Registrations during the period thereafter that any of the
Shares continue to be Registrable Securities (as defined herein). In addition,
the Company shall not be obligated to effect a Requested Registration if the
total number of Registrable Securities requested to be included therein totals
less than at least 5% of the outstanding shares of Common Stock of the Company.
2.2 Nature of Requested Registration. The Requested Registrations
required under this Section 2 shall take the form of non-underwritten "shelf"
registrations that will permit the Founding Stockholders who have elected to
include some or all of their Registrable Securities in the Requested
Registration to sell such Securities in open market transactions free of any
holding period and manner of sale restrictions under Rule 144 under the 1933
Act.
2.3 Reduction of Offering. If the Board of Directors of the
Company determines that the number of Registrable Securities requested to be
included in any Requested Registration could adversely affect the trading market
for the Company's shares or a planned financing by the Company , the Company
shall promptly notify the Founding Stockholders requesting the inclusion of
their Registrable Securities in the Requested Registration, in writing, thereof.
Such written notice shall specify that the aggregate dollar amount or number of
shares of Registrable Securities that the Board of Directors believes can be
registered without causing such adverse effect and the number thereof that each
Founding Stockholder shall be able to include in the Requested Registration
after giving effect to such reduction (which shall be determined by allocating
that aggregate number pro rata among such Founding Stockholders, as nearly as
practicable, on the basis of the number (or dollar amount, as the case may be)
of Registrable Securities they have requested to have included in such Requested
Registration).
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2.4 Withdrawal. Stockholder may elect to withdraw his or its
request for inclusion of its Registrable Securities in any Requested
Registration by giving written notice to the Company of its request to withdraw
prior to the effectiveness of the registration statement.
2.5 Effective Registration. A registration under this Section 2
will not count as a Requested Registration until it has become effective and has
remained effective for a period of not less than nine (9) months or until all
the securities covered by such registration statement have been sold, whichever
period is shorter.
3. Piggy-Back Registrations.
3.1 Piggy-Back Rights. If at any time during the Registration
Rights Period, the Company proposes to file a registration statement under the
1933 Act with respect to an offering of equity securities, or securities
convertible or exchangeable into equity securities, by the Company for its own
account other than a registration statement (i) on Form S-4 or S-8 (or any
substitute or successor form that may be adopted by the Commission), (ii) filed
in connection with any employee stock option or other benefit plan, (iii) for an
exchange offer or offering of securities solely to the Company's existing
securityholders, (iv) for a dividend reinvestment plan, then the Company shall:
(a) give written notice of such proposed filing to the
Founding Stockholders, including the Stockholder, as soon as practicable but in
no event less than 30 days before the anticipated filing date, which notice
shall describe the amount and type of securities to be included in such
offering, the intended method(s) of distribution, and the name of the proposed
managing Underwriter or Underwriters, if any, of the offering; and
(b) offer in such notice to the Founding Stockholders,
including the Stockholder, the opportunity to register such number of shares of
Registrable Securities as each such Founding Stockholder may request in writing
within 10 days following receipt of such notice (a "Piggy-Back Registration").
Subject to the provisions of Sections 3.2 and 3.3, the Company shall cause such
Registrable Securities to be included in such registration and shall use its
best efforts to cause the managing Underwriter or Underwriters of a proposed
underwritten offering to permit the Registrable Securities requested to be
included in such registration on the same terms and conditions as any similar
securities of the Company are to be offered for sale in such registration and to
permit the sale or other disposition of such Registrable Securities in
accordance with the intended method of distribution thereof.
3.2 Reduction of Offering. If the managing Underwriter or
Underwriters for a Piggy-Back Registration that is to be an underwritten
offering advises the Company and the Founding Stockholders requesting inclusion
in the Piggy-Back Registration, in writing, that the dollar amount or number of
shares of Registrable Securities and other shares of Common Stock or other
securities to be included in the offering exceeds the maximum dollar amount or
number that can be sold in such offering without adversely affecting the
proposed offering price, the timing, the distribution method or the probability
of success of such offering (the "Maximum Number of Shares"), then, the Company
shall include in such registration: (i) first, the shares of Common Stock or
other securities that the Company proposes to sell which can be sold without
exceeding the Maximum Number of Shares; and (ii) second, to the extent the
Maximum Number of Shares has not been reached under the foregoing clause (i),
the Registrable Securities requested to be included in such registration by the
Founding Stockholders which can be sold without exceeding the Maximum Number of
Shares (allocated pro rata among such Founding Stockholders, as nearly as
practicable, on the basis of the number (or dollar amount, as the case may be)
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of Registrable Securities requested to be included in such offering by each of
such Founding Stockholders).
3.3 Withdrawal. Stockholder may elect to withdraw his or its
request for inclusion of its Registrable Securities in any Piggy-Back
Registration by giving written notice to the Company of its request to withdraw
prior to the effectiveness of the registration statement. The Company may also
elect to withdraw a registration statement including shares being registered
pursuant to a Founding Stockholder's Piggy-Back Registration rights at any time
prior to the effectiveness of the registration statement, and such withdrawal
shall not require the consent of any such Founding Stockholders; provided,
however, that the Company shall reimburse promptly, but in no more than twenty
(20) business days, all Founding Stockholders for all reasonable out-of-pocket
expenses (other than the fees or disbursements of counsel or accountants
retained by any of the Founding Stockholders) incurred by them in connection
with such Piggy-Back Registration prior to such withdrawal by the Company.
4. Registration Procedures.
4.1 Filings; Information. If and whenever the Company is required
to effect the registration of any Registrable Securities under the 1933 Act
pursuant to Section 2 or Section 3, the Company shall use its best efforts to
effect the registration as expeditiously as practicable, and in connection or in
furtherance therewith:
(a) Filing Registration Statement. The Company shall, as
expeditiously as possible, prepare and, in the case of a Requested Registration
pursuant to Section 2, within 60 days after receipt of the initial request for
such registration, to file with the Commission a registration statement on any
form for which the Company then qualifies or which counsel for the Company shall
deem appropriate and which form shall be available for the sale of the
Registrable Securities to be registered thereunder in accordance with the
intended method of distribution thereof, and use its best efforts to cause such
filed registration statement to become and remain effective; provided, however,
that in the case of the registration statement for a Requested Registration
requested during the Lock-Up period following the effectiveness of the IPO, such
registration statement shall not become effective until the end of that Lock-Up
Period.
(b) Copies. The Company shall, prior to filing a
registration statement or prospectus or any amendment or supplement thereto,
furnish without charge to Stockholder and legal counsel for Stockholder, copies
of such registration statement as proposed to be filed, each amendment and
supplement to such registration statement (in each case including all exhibits
thereto and documents incorporated by reference therein), the prospectus
included in such registration statement (including each preliminary prospectus),
and such other documents as Stockholder may request in order to facilitate the
disposition of the Registrable Securities owned by Stockholder.
(c) Amendments and Supplements. The Company shall prepare
and file with the Commission such amendments, including post-effective
amendments, and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective and in compliance with the provisions of the 1933 Act until
all Registrable Securities and other securities covered by such registration
statement have been disposed of in accordance with the intended methods of
disposition set forth in such registration statement (which period shall not
exceed nine months) or such securities have been withdrawn.
(d) Notification. After the filing of the registration
statement, the Company shall promptly, and in no event more than three Business
Days, notify Stockholder, and confirm such
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advice in writing, (i) when such registration statement becomes effective, (ii)
when any post-effective amendment to such registration statement becomes
effective, (iii) of any stop order issued or threatened by the Commission (and
the Company shall take all actions required to prevent the entry of such stop
order or to remove it if entered) and (iv) of any request by the Commission for
any amendment or supplement to such registration statement of any prospectus
relating thereto or for additional information or of the occurrence of an event
requiring the preparation of a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Registrable Securities
covered by such Registration Statement, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
and promptly make available to Stockholder any such supplement or amendment;
except that before filing with the Commission a registration statement or
prospectus or any amendment or supplement thereto, including documents
incorporated by reference, the Company shall furnish to Stockholder and to legal
counsel representing Stockholder, copies of all such documents proposed to be
filed sufficiently in advance of filing to provide Stockholder, Underwriters and
legal counsel with a reasonable opportunity to review such documents and comment
thereon, and the Company shall not file any registration statement or prospectus
or amendment or supplement thereto, including documents incorporated by
reference to which Stockholder or legal counsel representing Stockholder, shall
reasonably object on a timely basis in light of the requirements of the 1933 Act
or any other applicable laws and regulations.
(e) State Securities Laws Compliance. The Company shall
use its best efforts to register or qualify the Registrable Securities covered
by a registration statement for a Requested Registration or a Piggy-Back
Registration under such securities or blue sky laws of such jurisdictions in the
United States as Stockholder (in light of the intended plan of distribution)
requests; provided, however, that the Company shall not be required to qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (e), or subject itself to taxation in
any such jurisdiction.
(f) Agreements for Disposition. The Company shall enter
into customary agreements (including, if applicable, an underwriting agreement
in customary form) and take such other actions as are reasonably required in
order to expedite or facilitate the disposition of such Registrable Securities
in connection with a underwritten Piggy-Back Registration. Stockholder may, at
its option, require that any or all of the representations, warranties and
covenants of the Company in any underwriting agreement for a Piggy-Back
Registration to or for the benefit of any Underwriters also be made to and for
the benefit of Founding Stockholders whose Registrable Securities have been
included in such Registration.
(g) Cooperation. The Executive Officers and other members
of the management of the Company shall cooperate fully in any offering of
Registrable Securities hereunder, which cooperation shall include, without
limitation, the preparation of the Registration Statement and all other offering
materials and related documents, and participation in meetings with
Underwriters, attorneys, accountants.
(h) Records. The Company shall make available, for
inspection by any Underwriter for any Underwritten Piggy Back Registration and
any attorney, accountant or other professional retained by any Underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records"), as shall be necessary to enable them to
exercise their due diligence responsibility, and cause the Company's officers,
directors and employees to supply all information requested by such Underwriter
or its counsel or accountants or other professional advisors in connection with
such Registration.
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(i) Earnings Statement. The Company shall comply with all
applicable rules and regulations of the Commission and the 1933 Act, and make
available to its Stockholders, as soon as practicable, an earnings statement
covering a period of 12 months, beginning within three months after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder.
(j) Listing. The Company shall use its best efforts to
cause all such Registrable Securities registered pursuant to this Agreement to
be listed on such exchanges or otherwise designated for trading in the same
manner as similar securities issued by the Company are then listed or
designated.
4.2 Obligation to Suspend Distribution. Stockholder agrees that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 4.1(d), Stockholder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until Stockholder's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 4.1(d), and,
if so directed by the Company, Stockholder will deliver to the Company all
copies, other than permanent file copies then in Stockholder's possession, of
the most recent prospectus covering such Registrable Securities at the time of
receipt of such notice. In the event the Company shall give such notice, the
Company shall extend the period during which such registration statement shall
be maintained effective by the number of days during the period from and
including the date of the giving of notice pursuant to Section 4.1(d) to the
date when the Company shall make available to Stockholder a prospectus
supplemented or amended to conform with the requirements of Section 4.1(d).
4.3 Registration Expenses. The Company shall pay all expenses
incurred in connection with any Requested Registration pursuant to Section 2 and
any Piggy-Back Registration pursuant to Section 3, and all expenses incurred in
performing or complying with the Company's obligations under this Section 4,
whether or not the registration statement becomes effective, in each case
including, but not limited to: (i) all registration and filing fees, (ii) fees
and expenses of compliance with securities or blue sky laws (including fees and
disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), printing expenses, (iii) the Company's internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), (iv) the fees and
expenses incurred in connection with the listing of the Registrable Securities
as required by Section 4.1(j), (iv) National Association of Securities Dealers,
Inc. fees, (v) fees and disbursements of counsel for the Company and fees and
expenses for independent certified public accountants retained by the Company,
(vi) the fees and expenses of any special experts retained by the Company in
connection with such registration. The Company shall have no obligation to pay
any underwriting fees, discounts or selling commissions attributable to the
Registrable Securities being sold by Stockholder or any of the other Founding
Stockholders, or any expenses incurred by the Stockholder or any of the other
Founding Stockholders incurred in connection with such registration, such as but
not limited to the fees and disbursement of counsel, accountants or experts
retained by Stockholder or any other of the Founding Stockholders to represent
or assist them in connection with such registration.
5. Indemnification and Contribution.
5.1 Indemnification by the Company. The Company agrees to
indemnify and hold harmless Stockholder and, if Stockholder is a corporation or
other business entity, its officers, employees, affiliates, directors, partners,
members and agents, and each person, if any, who controls the Stockholder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
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(collectively, the Stockholder's Related Parties"), from and against any loss,
claim, damage or liability and any action in respect thereof to which the
Stockholder or any of his or its Related Parties become subject under the 1933
Act or the 1934 Act, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained or incorporated by reference in any
registration statement or prospectus (including any preliminary prospectus)
relating to the Registrable Securities (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or any
omission or alleged omission to state a material fact required to be stated in
any such registration statement or prospectus in order to make the statements
therein not misleading. The Company also shall promptly, but in no event more
than twenty (20) business days after request for payment, pay directly or
reimburse the Stockholder and its Related Parties for any reasonable legal and
other expenses incurred by Stockholder or such Related Parties in investigating
or defending or preparing to defend against any such loss, claim, damage,
liability or action provided that the Stockholder or such Related Party is
entitled to be indemnified therefor under the provisions of this Section 5;
provided, however, that notwithstanding anything to the contrary set forth in
this Section 5 (i) the indemnity agreement contained in this Section 5.1 shall
not apply to amounts paid in settlement of any such loss, claim, damage or
liability or any action in respect thereof if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), (ii) the Company shall not be liable to Stockholder or any of its
Related Parties in any such case for any loss, claim, damage, liability or any
action in respect thereof to the extent that it arises solely from or is based
solely upon and is in conformity with information related to Stockholder
furnished in writing by Stockholder expressly for use in connection with such
registration, (iii) the Company shall not be liable to Stockholder for any such
loss, claim, damage or liability or any action in respect thereof to the extent
it arises solely from or is based solely upon any untrue statement or alleged
untrue statement of a material fact contained in any registration statement or
prospectus relating to the Registrable Securities delivered by Stockholder after
the Company had provided written notice to Stockholder that such registration
statement or prospectus contained such untrue statement or alleged untrue
statement of a material fact, 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 after the Company had provided written notice
to Stockholder that such registration statement or prospectus contained such
omission or alleged omission; and (iv) the obligation of the Company to pay or
reimburse expenses of the Stockholder set forth above in this Section 5.1 shall
be subject to the provisions of Section 5.3 hereof. The Company also shall
indemnify any Underwriter of Registrable Securities, their officers, affiliates,
directors, partners, members and agents and each person who controls such
Underwriter on substantially the same basis as that of the indemnification of
Stockholder provided in this Section 5.1;
5.2 Indemnification by Stockholder. Stockholder shall indemnify
and hold harmless the Company, its officers, directors, employees and agents and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act to the same extent as the
foregoing indemnity from the Company to Stockholder, but solely with reference
to information in conformity with and related to Stockholder furnished in
writing by Stockholder expressly for use in any registration statement or
prospectus relating to the Registrable Securities, or any amendment or
supplement thereto, or any preliminary prospectus. Stockholder shall also
indemnify and hold harmless any Underwriter of the Registrable Securities, their
officers, directors, partners, members and agents and each person who controls
such Underwriters on substantially the same basis as that of the indemnification
of the Company provided in this Section 5.2; provided, however, that in no event
shall any indemnity obligation under this Section 5.2 exceed the dollar amount
of the net proceeds actually received by Stockholder from the sale of
Registrable Securities, which gave rise to such indemnification obligation under
such registration statement or prospectus.
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5.3 Conduct of Indemnification Proceedings. Promptly after
receipt by any person of any notice of any loss, claim, damage or liability or
any action in respect of which indemnity may be sought pursuant to Section 5,
such person (the "Indemnified Party") shall, if a claim in respect thereof is to
be made against any other person for indemnification hereunder, notify such
other person (the "Indemnifying Party") in writing of the loss, claim damage,
liability or action; provided, however, that the failure by the Indemnified
Party to notify the Indemnifying Party shall not relieve the Indemnifying Party
from any liability which the Indemnifying Party may otherwise have to such
Indemnified Party. If the Indemnified Party is seeking Indemnification with
respect to any claim or action brought against the Indemnified Party, then the
Indemnifying Party shall be entitled to participate in such claim or action,
and, to the extent that it wishes, jointly with all other Indemnifying Parties,
to assume the defense thereof with counsel reasonably satisfactory to the
Indemnified Party. After notice from the Indemnifying Party to the Indemnified
Party of its election to assume the defense of such claim or action, the
Indemnifying Party shall not be liable to the Indemnified Party for any legal or
other expenses subsequently incurred by the Indemnified Party in connection with
the defense thereof other than reasonable costs of investigation; provided,
however, that in any action in which both the Indemnified Party and the
Indemnifying Party are named as defendants, the Indemnified Party shall have the
right to employ separate counsel (but no more than one such separate counsel) to
represent the Indemnified Party and its controlling persons who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by the Indemnified Party against the Indemnifying Party, with the fees
and expenses of such counsel to be paid by such Indemnifying Party if, based
upon the written opinion of counsel of such Indemnified Party, representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, consent to entry of judgment
or effect any settlement of any claim or pending or threatened proceeding in
respect of which the Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such judgment or settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such claim or proceeding.
5.4 Contribution. If the indemnification provided for in the
foregoing provisions of this Sections 5, is unavailable to any Indemnified Party
in respect of any loss, claim, damage, liability or action referred to herein,
then each such 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 such loss, claim, damage, liability or action in such proportion
as is appropriate to reflect the relative fault of the Indemnified Parties and
the Indemnifying Parties in connection with the actions or omissions which
resulted in such loss, claim, damage, liability or action, as well as any other
relevant equitable considerations. The relative fault of any Indemnified Party
and any Indemnifying Party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such Indemnified Party or such Indemnifying Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The parties hereto further agree that it
would not be just and equitable if contribution pursuant to this Section 5.4
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding provisions of this Section 5.4. The amount paid or payable
by an Indemnified Party as a result of any loss, claim, damage, liability or
action referred to in the immediately preceding provisions shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
incurred by such Indemnified Party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 5.4,
Stockholder shall not be required to contribute any amount in excess of the
dollar amount of the net proceeds actually received by Stockholder from the sale
of Registrable Securities, which gave rise to
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such contribution obligation. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
6. Certain Obligations of the Company and Stockholder.
6.1 Rule 144. The Company covenants that it shall use its best
efforts to file any reports required to be filed by it under the 1933 Act and
the 1934 Act to enable Stockholder to sell Registrable Securities without
registration under the 1933 Act within the limitation of the exemptions provided
by Rule 144 or Rule 144A under the 1933 Act, as such Rules may be amended from
time to time, or any similar Rule or regulation hereafter adopted by the
Commission.
6.2 "Lock-up" Agreement by Stockholder. Stockholder, by its
acceptance hereof, agrees that, upon request, in connection with any
underwritten public offering by the Company, Stockholder will enter "lock-up"
agreements, in customary form, pursuant to which it or he or she will agree not
to effect any sale or distribution of any securities similar to those being
registered by the Company, or any securities convertible into or exchangeable or
exercisable for such securities, including a sale pursuant to Rule 144 or 144A
under the 1933 Act, during the 30 days prior to, and during the 180-day period
beginning on, the effective date of the registration statement relating to such
offering (except as part of such registration statement); provided, however,
that the obligation of Stockholder to execute such lock-up agreements is subject
to the execution of similar agreements by all of the executive officers and the
directors of the Company.
7. Miscellaneous
7.1 Successors and Assigns. The rights and obligations of
Stockholder under this Agreement shall be assignable to any person or entity to
whom the Stockholder sells or transfers any of his or its Registrable Securities
in conformity with the Stockholders Agreement while that Agreement is in effect
(a "Permitted Assignee"); provided, however that any assignee or transferee of
such Securities that acquires them in a transaction pursuant to Rule 144 or Rule
144A shall not be deemed to be a Permitted Assignee that is entitled to any
rights under this Agreement. Any Permitted Assignee of such rights, upon
agreeing, in writing, to assume the obligations of Stockholder hereunder, shall
be entitled to such benefits of this Agreement as is set forth in an agreement
between Stockholder and such Permitted Assignee. Stockholder shall promptly
notify the Company in writing of such assignment and any limitations binding on
the Permitted Assignee.
7.2 Entire Agreement. This Agreement, the Contribution Agreement
and the Stockholders Agreement, and the other agreements and instruments
furnished pursuant thereto or in connection therewith, constitute the full and
entire agreement and understanding between Stockholder and the Company, and
supersede all prior agreements and understandings relating to the subject matter
of this Agreement.
7.3 Notices. All notices, requests, demands and other
communications which are required or may be given under this Agreement shall be
in writing and shall be deemed to have been duly given if transmitted by
telecopier with receipt acknowledged, or upon delivery, if delivered personally
or by recognized commercial courier with receipt acknowledged, or upon the
expiration of 72 hours after mailing, if mailed by registered or certified mail,
return receipt requested, postage prepaid, addressed to the Company and to
Stockholder at their respective addresses set forth in Exhibit C to the
Stockholders
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Agreement, or at such other address or addresses as Stockholder or the Company,
as the case may be, may specify by written notice given in accordance with this
Section 7.3.
7.4 Severability. In case any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
7.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
7.6 Headings. The headings of the Sections and paragraphs of this
Agreement are for convenience of reference only and do not constitute a part of
this Agreement and are not to be considered in construing or interpreting this
Agreement.
7.7 Waivers and Amendments. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally or by
course of dealing, except by a statement in writing signed by the party against
which enforcement of the change, waiver, discharge or termination is sought.
7.8 Remedies. In the event that the Company fails to observe or
perform any covenant or agreement to be observed or performed under this
Agreement, Stockholder may proceed to protect and enforce its rights by suit in
equity or action at law, whether for specific performance of any term contained
in this Agreement or for an injunction against the breach of any such term or in
aid of the exercise of any power granted in this Agreement or to enforce any
other legal or equitable right of Stockholder, or to take any one or more of
such actions. The non-prevailing party in any such proceeding agrees to pay all
fees, costs, and expenses incurred by the prevailing party in connection with
any such proceeding, including without limitation, the reasonable attorneys fees
and disbursements incurred by the prevailing party. None of the rights, powers
or remedies conferred under this Agreement shall be mutually exclusive, and each
such right, power or remedy shall be cumulative and in addition to any other
right, power or remedy whether conferred by this Agreement or now or hereafter
available at law, in equity, by statute or otherwise.
7.9 Governing Law. In all respects, including all matters of
construction, validity and performance, this Agreement and the rights and
obligations arising hereunder shall be governed by, and construed and enforced
in accordance with, the laws of the State of California applicable to contracts
made and performed in such state, without regard to principles thereof regarding
conflicts of laws.
7.10 WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION
WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED
BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND
FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT
THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, AND UNDERSTANDING THEY ARE WAIVING A CONSTITUTIONAL RIGHT, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER IN CONTRACT, TORT, OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO, THIS
AGREEMENT OR THE TRANSACTIONS COMPLETED HEREBY.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed and delivered by their duly authorized representatives
as of the date first above written.
COMPANY: COLLECTORS UNIVERSE, INC.,
a Delaware corporation
By:_________________________________________
Xxxxx Xxxx, Chairman
STOCKHOLDER: ____________________________________________
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