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REGISTRATION RIGHTS AGREEMENT
This Agreement has been executed and delivered this 12th day of June,
1996, by and between XXXXX DISC PRODUCTS COMPANY, INC., a Colorado corporation
(herein called "XXXXX DISC"), and investors (the "Investors") subscribing to
restricted shares of common stock of XXXXX DISC at a price of $2.50 per share
in June 1996 (the "Offering"). For the purposes of this Agreement, the
"Shares" shall be defined to include:
(A) shares of the XXXXX DISC Common Stock issued to Investors pursuant to
the private placement Offering; and
(B) any shares of XXXXX DISC Common Stock issued as a stock dividend, stock
split, combination or other reclassification with respect to any of the
foregoing.
SECTION 1. DEFINITIONS. Unless the context clearly requires
otherwise, the following capitalized terms used in this Agreement shall be
defined as follows:
1.1 "XXXXX DISC", "Investors" and "Shares", respectively, shall have
the meanings defined hereinabove.
1.2 "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute then in effect, and a reference to a
particular section thereof shall be deemed to include a reference to the
comparable section, if any, of any such similar federal statute.
1.3. "SEC" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
1.4 "Registration Expenses" shall mean expenses and fees incident to
compliance with the registration obligations of XXXXX DISC under this
Agreement, including without limitation: (i) all SEC registration and filing
fees, (ii) all fees and expenses of complying with the Securities Act and the
securities or blue sky laws of the States of New York and Colorado, (iii) all
printing, messenger and delivery expenses incident to the foregoing and/or to
the distribution of securities contemplated herein, and (iv) the fees and
disbursements of counsel for XXXXX DISC and of its independent public
accountants; provided, however, that Registration Expenses shall not include
any fees and disbursements of counsel to the Investors, brokerage commissions
and/or discounts charged on the sale of the Shares.
SECTION 2. "PIGGY-BACK" REGISTRATION RIGHTS.
2.1. If, at any time after September 30, 1996, XXXXX DISC thereafter
shall file a registration statement or post-effective amendment to a
registration statement on Form XX-0, XX-0, X-0, X-0 or S-3, or any form
substituted therefor, with respect to any shares of its capital stock under
the Securities Act, XXXXX DISC will give to the Investors at least ten (10)
days prior written notice of XXXXX DISC's intention to file such registration
statement.
2.2. Upon the request of the Investors given within fifteen (15) days
after receipt of notice under Section 2.1, XXXXX DISC shall include all Shares
designated by the Investors in any such registration statement and will
maintain the prospectus included in any registration statement which may be so
filed current for a period of at least three (3) months subsequent to the
effective date of such registration statement plus, if applicable, an
additional period equal to that portion of time in which the limitation set
forth in Section 2.6 of this Agreement delayed the ability of the Investors to
sell Shares registered hereunder.
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2.3. Nothing in this Section 2 shall be deemed to require XXXXX DISC
to proceed with any registration of its securities after giving the notice
herein provided.
2.4. The obligations of XXXXX DISC under this Section 2 shall expire
(i) after one (1) registration statement or post-effective registration
statement has been filed hereunder and become effective under the Securities
Act and, in any event, (ii) as to any Shares which may otherwise be resold by
the Investors in accordance with the provisions and restrictions of Rule 144
promulgated under the Securities Act.
2.5. All Registration Expenses of any piggy-back registration
statement filed pursuant to the provisions of this Section 2 incurred by XXXXX
DISC shall be paid by XXXXX DISC.
2.6. LIMITATION UPON "PIGGY-BACK" REGISTRATION RIGHTS FOR A FIRM
COMMITMENT OFFERING BY THE COMPANY. If an investment banker engaged by XXXXX
DISC in connection with a then pending firm commitment underwritten public
offering of securities proposed for registration under the Securities Act for
the account of XXXXX DISC determines, in its sole discretion, that piggy-back
registration of Shares for the account of the Investors would interfere with
or be detrimental to such firm commitment offering for the account of XXXXX
DISC, XXXXX DISC shall give prompt written notice of such determination to the
Investors. In such event XXXXX DISC, upon written notice to the Investors,
shall have the right to require, as a condition of such piggy-back
registration under this Section 2, that the Investors execute a written
agreement that the Investors will not sell such securities for a period of up
to six (6) months after the effective date of the registration statement
without the prior consent of the underwriter subject to the condition that all
shareholders other than the Investors to be included in such registration, if
any, shall also be subject to the foregoing limitation.
SECTION 3. MANDATORY REGISTRATION RIGHTS.
3.1. If the holders of the Shares shall have not been offered the
opportunity of participating in a registration statement as contemplated by
Section 2 above prior to May 31, 1997, then during the month of June 1997 any
holder of Shares shall have the right during the month of June 1997 to demand
in writing that XXXXX DISC use its best efforts to register the Shares under
the Securities Act. Upon receipt of a demand for registration hereunder, the
Company within 45 days thereafter will file a registration statement under the
Securities Act covering all Shares covered by any such request, and will
maintain the prospectus included in any registration statement which may be so
filed current for a period of at least three (3) months subsequent to the
effective date of such registration statement. The obligations of the Company
under this Section 3 shall be fully satisfied upon the effective date of the
first such registration statement to which either Section 2 or this Section
3.1 is applicable. All Registration Expenses of any registration statement
filed pursuant to the provisions of this Section 3.1 incurred by XXXXX DISC
shall be paid by XXXXX DISC.
SECTION 4. AMENDMENT OR SUPPLEMENT TO PROSPECTUS.
4.1. If at any time within the period set forth in Section 2.2 or
Section 3 above after a registration statement covering Shares hereunder shall
have become effective, to the knowledge of XXXXX DISC any event occurs as a
result of which a prospectus included therein relating to the Shares as then
amended or supplemented would include any untrue statement of a material fact,
or would not state a material fact necessary to make the statements therein,
in the light of the circumstances then existing, not misleading, XXXXX DISC
will promptly notify the Investors thereof and XXXXX DISC will at its own cost
and expense amend or supplement such
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prospectus in order to correct such statement or omission in order that the
prospectus as so amended or supplemented will comply with the requirements of
Section 10(a) of the Securities Act.
SECTION 5. OTHER UNDERTAKINGS.
5.1. If and whenever XXXXX DISC causes the registration of any Shares
under the Securities Act as provided herein, XXXXX DISC will, as expeditiously
as possible:
(a) prepare and file with the SEC a registration statement with
respect to such Shares and use its best efforts to cause such registration
statement to become effective. XXXXX DISC will promptly notify the Investors
and confirm such advice in writing, (i) when such registration statement
becomes effective, (ii) when any post-effective amendment to such registration
statement becomes effective and (iii) of any request by the SEC for any
amendment or supplement to such registration statement or any prospectus
relating thereto or for additional information as to the Investors included in
the registration statement;
(b) prepare and file with the SEC 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 current for the applicable period required by Section 2.2 or
Section 3.1 of this Agreement and to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such registration statement during such period. If at any time the SEC should
institute or threaten to institute any proceedings for the purpose of issuing
a stop order suspending the effectiveness of any such registration statement,
XXXXX DISC will promptly notify the Investors and will use all reasonable
efforts to prevent the issuance of any such stop order or to obtain the
withdrawal thereof as soon as possible;
(c) furnish to the Investors such number of copies of such
registration statement and of each such amendment and supplement thereto, such
number of copies of the prospectus included in such registration statement, in
conformity with the requirements of the Securities Act, and such other
documents as the Investors may reasonably request in order to facilitate the
disposition of Shares by the Investors;
(d) use its best efforts to register or qualify such Shares
covered by such registration statement under such securities or blue sky laws
of any State of the United States as the Investors shall reasonably request
[which shall be at the expense of XXXXX DISC as to the States of Colorado and
New York and at the expense of the Investors as to any other states], and do
any and all other acts and things which may be reasonably necessary or
advisable to enable the Investors to consummate the disposition in such
jurisdictions of the Shares covered by such registration statement, except
that XXXXX DISC shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction where,
but for the requirements of this clause (d), it would not be obligated to be
so qualified, to subject itself to taxation in any such jurisdiction, or to
consent to general service of process in any such jurisdiction;
(e) promptly notify the Investors, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act within
the appropriate period mentioned in Section 2.2 or Section 3.1 above of XXXXX
DISC becoming aware that the prospectus included in such registration
statement, 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
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therein not misleading in the light of the circumstances then existing; and at
the request of the Investors promptly prepare and furnish to such seller a
reasonable number of copies of an amended or supplemental prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such Shares,
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
then existing; and
(f) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its securities
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve (12) months, beginning with the first month after
the effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act.
5.2. XXXXX DISC may require the Investors, as the seller of Shares as
to which any registration is being effected, to furnish XXXXX DISC in writing
such information and documents regarding the Investors and the distribution of
their Shares as may be required to be disclosed in the registration statement
by the rules and regulations under the Securities Act.
5.3. As a condition to registration, each Investor shall agree by any
registration of Shares hereunder that, upon receipt of any notice from XXXXX
DISC of the happening of any event of the kind described in clause (e) of
Section 5.1, the Investors will forthwith discontinue disposition of Shares
pursuant to the registration statement covering such Shares until the
Investor's receipt of the copies of the supplemented or amended prospectus
contemplated by clause (e) of Section 5.1, and, if so directed by XXXXX DISC,
the Investors will deliver to XXXXX DISC (at XXXXX DISC's expense) all copies,
other than permanent file copies then in the Investors' possession, of the
prospectus covering such Shares current at the time of receipt of such notice.
SECTION 6. INDEMNIFICATION.
6.1 INDEMNIFICATION BY XXXXX DISC. In the event of any registration
of Shares under the Securities Act pursuant to this Agreement, XXXXX DISC
will, and it hereby does, indemnify and hold harmless, to the extent permitted
by law, the Investors as the seller of any Shares covered by such registration
statement, its directors and officers and any other person who may be deemed
to control the Investors within the meaning of Section 15 of the Securities
Act and each other person who participates as an underwriter in the offering
or sale of such securities and each other person, if any, who controls any
such underwriter within the meaning of the Securities Act, against any and all
losses, claims, damages or liabilities, joint or several, and expenses
(including any amounts paid in any settlement effected with XXXXX DISC's
consent) to which the Investors, any such director or officer or any such
underwriter or controlling person may become subject under the Securities Act,
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (i) 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, final or
summary prospectus contained therein, or any amendment or supplement thereto,
or (ii) 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 XXXXX DISC will reimburse the Investors and each such
director, officer, underwriter and controlling person for 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 XXXXX DISC 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
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upon any untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement or amendment or supplement
thereto or in any such preliminary, final or summary prospectus or amendment
or supplement thereto, in reliance upon and in conformity with information
furnished in writing to XXXXX DISC by or on behalf of the Investors or any
other person or underwriter for use in the preparation thereof; and provided,
further, that XXXXX DISC will not be liable to any person who participates as
an underwriter in the offering or sale of Shares, or to any other person who
controls such underwriter, within the meaning of the Securities Act, under the
indemnity agreement in this Section 6 with respect to any preliminary
prospectus or the final prospectus, or the final prospectus as amended or
supplemented, as the case may be, to the extent that any such loss, claim,
damage or liability of such underwriter or controlling person results from the
fact that such underwriter sold Shares to a person to whom there was not sent
or given, at or prior to the written confirmation of sale of the final
prospectus as then amended or supplemented, whichever is most recent, if XXXXX
DISC has previously furnished copies thereof to such underwriter and such
final prospectus, as then amended or supplemented, has corrected any such
misstatement or omission. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Investors
or any such director, officer, underwriter or controlling person and shall
survive the transfer of such securities by such person.
6.2 INDEMNIFICATION BY INVESTOR/SELLER. XXXXX DISC may require, as a
condition to including any Shares in any registration statement filed in
accordance with this Agreement, that XXXXX DISC shall have received an
undertaking reasonably satisfactory to it from each of the Investors to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 6.1), XXXXX DISC, each director of XXXXX DISC, each officer
of XXXXX DISC who shall sign the registration statement and its controlling
persons, if any, and all other prospective sellers and their respective
directors, officers and controlling persons with respect to any statement or
alleged statement in or omission or alleged omission from such registration
statement, any preliminary, final or summary prospectus contained therein, or
any amendment or supplement, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
information furnished to XXXXX DISC by or on behalf of such Investor for use
in the preparation of such registration statement, preliminary, final or
summary prospectus or amendment or supplement. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
XXXXX DISC.
6.3 CONTRIBUTION. If the indemnification provided for in Section 6.1
or 6.2 is unavailable to a party that would have been an indemnified party
under any such section in respect of any and all losses, claims, damages or
liabilities, joint or several (or actions in respect thereof), referred to
therein, then each party that would have been an indemnifying party thereunder
shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and such indemnified party on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities, joint or several (or actions in respect thereof). The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statements of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or such indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. XXXXX DISC agrees that it would not be
just and equitable if contribution pursuant to this Section 6 were determined
by pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
6. The amount paid or payable by an indemnified party as a
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result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this Section 6 shall include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
SECTION 7. NO ASSIGNMENTS. The provisions of this Agreement relating
to registration rights for the Shares are personal to the Investors and may
not be transferred or assigned by the Investors to any third party except with
the prior consent in writing of XXXXX DISC.
SECTION 8. OTHER PROVISIONS.
8.1 NOTICES. Any notices or other communications required or
permitted hereunder shall be sufficiently given if written and delivered in
person or sent by registered mail, postage prepaid, addressed (if to XXXXX
DISC) to XXXXX DISC's principal office and (if to Investors) to the last known
address of the Investors on the records of XXXXX DISC, or to such other
address as shall be furnished in writing by the appropriate person, and any
such notice or communication shall be deemed to have been given as of the date
so mailed.
8.2 CAPTIONS. The captions set forth in this Agreement are for
convenience only and shall not be considered as part of this Agreement or as
in any way limiting or amplifying the terms and provisions hereof.
8.3 INTEGRATION. This Agreement embodies the entire representations,
warranties and agreements in relation to the subject matter hereof, and no
other representations, warranties, understandings, or agreements in relation
thereto exist between the parties.
8.4 CHOICE OF LAW. This Agreement shall be deemed to have been made
and executed, and all performance shall be deemed to take place, within the
State of Colorado. This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of Colorado.
IN WITNESS WHEREOF, XXXXX DISC has this Agreement as of the day and year
first above written.
XXXXX DISC PRODUCTS COMPANY, INC.
By:
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Xxxxxx X. Xxxx,
Chairman of the Board and Chief Executive
Officer
