EXHIBIT 10.(b)
EXHIBIT 10(B)
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement dated February 23, 1998 between
Guardian International, Inc., a Nevada corporation (the "Company"), and the
shareholders listed on the signature pages hereto (each, a "Shareholder" and
collectively, the "Shareholders"). Capitalized terms not defined herein shall
have meaning assigned to them in the Stock Purchase Agreement (defined below).
RECITALS
The Company and the Shareholders are parties to a Stock
Purchase Agreement, effective as of February 1, 1998 (the "Stock Purchase
Agreement"), pursuant to which the Company has issued to the Shareholders an
aggregate of 1,981,700 shares (the "Shares") of the Company's Class A Voting
Common Stock, par value $.001 per share (the "Common Stock"). In order to induce
the Shareholders to enter into the Stock Purchase Agreement, the Company has
agreed to provide to each current Shareholder the registration rights set forth
in this Agreement.
AGREEMENT
1. REGISTRATION RIGHTS.
(a) INCIDENTAL RIGHTS. If at any time or from time to time the Company
proposes to file with the Securities and Exchange Commission (the "Commission")
a registration statement (other than a registration statement on Form S-8
covering solely an employee benefit plan or a registration statement on Form S-3
covering solely offers pursuant to a dividend or interest reinvestment plan) for
the registration under the Securities Act of 1933, as amended (the "Securities
Act") of any shares of Common Stock for sale to the public by the Company or on
behalf of a shareholder of the Company for cash (excluding shares of Common
Stock issuable by the Company upon the exercise of employee stock options or in
connection with the merger or consolidation of the Company with one or more
other corporations), the Company shall give the Shareholders at least 30 days'
prior written notice of the filing of the proposed registration statement (the
"Registration Notice"). The Registration Notice shall include a list of the
states and foreign jurisdictions, if any, in which the Company intends to
qualify such shares, the number of shares so proposed to be registered, the
proposed date of filing of such registration statement, any proposed means of
distribution of such shares, any proposed managing underwriter or underwriters,
and a good faith estimate by the Company or managing underwriter of the maximum
offering price thereof, as such price is proposed to appear on the facing page
of such registration statement. Upon the written request of any Shareholder
(each, a "Requesting Shareholder"), received by the Company within fifteen (15)
days after the giving of the Registration Notice by the Company, to register any
of the Shareholder's Shares, the Company shall, subject to the conditions and in
accordance with the procedures set forth in Sections 1(c) and 1(d), and at its
own expense as provided in Section 3, use its best efforts to
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cause the Shares as to which registration shall have been so requested (the
"PiggyBack Shares") to be included in the coverage of such registration
statement.
Notwithstanding any other provision in this Section 1(a), if in
connection with an underwritten offering the managing underwriter for the
Company indicates its reasonable belief in writing that the effect of including
all or part of the PiggyBack Shares in such underwritten offering will
materially and adversely affect the sale of all of the Common Stock to be
registered (which statement of the managing underwriter shall also state the
maximum number of shares of Common Stock (the "Maximum Shares"), if any, which
can be sold without materially adversely affecting such sale), then the number
of shares of Common Stock to be included in the offering shall be reduced to the
Maximum Shares and such Maximum Shares shall be allocated (i) first, to the
Company and to any holder or holders of shares of the Common Stock who may have
exercised a mandatory right for registration; and (ii) second, among the
Requesting Shareholders, Westar Security, Inc., a Nevada corporation ("Westar")
and Xxxxxx Financial, Inc., a Delaware corporation ("Xxxxxx"), in proportion, as
nearly as practicable, as such Person's shares of Common Stock proposed to be
registered bears to the aggregate number of shares of Common Stock proposed to
be registered by all Persons.
If the managing underwriter has not limited the number of shares of
Common Stock to be underwritten, the Company and other holders of the Company's
securities may include securities for its (or their) own account in such
registration if (A) the managing underwriter so agrees and (B) the number of
shares which would otherwise have been included in such registration and
underwriting will not thereby be limited and (C) such other securities are then
registrable on Form S-3.
Notwithstanding any request for inclusion in any registration statement
under this Section 1(a), the Requesting Shareholders may elect to reduce or
withdraw their request for inclusion of its Shares at any time prior to
execution of the underwriting agreement with respect thereto.
The Company shall have the right to select all underwriters, including
the managing underwriter, of all public offerings of shares of Common Stock
subject to the provisions of this Section 1(a). The Requesting Shareholders
shall enter into (together with the Company) an underwriting agreement with the
underwriter or underwriters, provided that such underwriting agreement is in a
customary form and is reasonably acceptable to the Requesting Shareholders.
Nothing in this Section 1(a) shall create any liability on the part of the
Company to the Requesting Shareholder if the Company for any reason decides not
to file such a registration statement.
(b) MANDATORY RIGHTS. Upon written request of Shareholders holding from
time to time in the aggregate more than fifty percent (50%) of the total number
of Shares ("Majority Shareholders"), the Company shall, subject to the
conditions, and in accordance with the procedures, set forth in this Section
1(b) and Sections 1 (c) and 1(d), file a registration statement (and use its
best efforts to cause such registration statement to become effective) and use
its best efforts to qualify Shares owned by the Majority Shareholders for sale
under the securities laws of such states as may be reasonably requested by the
Majority Shareholders. The request for registration pursuant to this Section
1(b) shall specify the number of Shares to be registered. The Company shall have
the right to select the underwriters and managers to administer the offering.
The Company shall enter into
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(together with the Majority Shareholders) an underwriting agreement with the
underwriter or underwriters, provided that such underwriting agreement is in a
customary form and is reasonably acceptable to the Company and the Majority
Shareholders.
The Company shall be permitted to delay the filing of any registration
statement requested pursuant to this Section 1(b) or to delay its effectiveness
for a reasonable period of time (in no event to exceed 120 days) if, in the good
faith and reasonable judgment of the Board of Directors of the Company, such
registration would have a material adverse effect on pending financing
transactions, corporate reorganizations or other material events involving the
Company, or if the Company, in the good faith judgment of its Board of
Directors, reasonably believes that the filing thereof at the time requested
would require disclosure of material confidential information which would
materially and adversely affect the business or prospects of the Company.
Notwithstanding any other provision in this Section 1(b), if the
managing underwriter indicates its reasonable belief in writing that the effect
of including all or part of the securities requested to be registered by the
Majority Shareholders (the "Demand Shares"), together with the number of shares
to be registered on behalf of Xxxxxx, Westar, or the Company, if any, in the
coverage of such registration statement will materially and adversely affect the
sale of all of the Common Stock to be registered (which statement of the
managing underwriter shall also state the number of Maximum Shares, if any),
then the number of shares of Common Stock to be registered shall be reduced to
the Maximum Shares and such Maximum Shares shall be allocated (i) first, to the
Company and the Majority Shareholders who are exercising a mandatory right for
registration and (ii) second, between Westar and Xxxxxx, in proportion, as
nearly as practicable, as such Person's shares of Common Stock proposed to be
registered bears to the aggregate number of shares of Common Stock proposed to
be registered by all Persons.
If the managing underwriter has not limited the number of Shares to be
underwritten, the Company and other holders of the Company's securities, in
addition to Xxxxxx and Westar, may include securities for its (or their) own
account in such registration if (A) the managing underwriter so agrees and (B)
the number of shares which would otherwise have been included in such
registration and underwriting will not thereby be limited and (C) such other
securities are then registrable on Form S-3.
The Majority Shareholders shall be entitled to request two
registrations pursuant to this Section 1(b). The Company shall be obligated to
maintain the effectiveness of each such registration statement until the earlier
of (A) the sale of all shares registered pursuant thereto, or (B) the date that
is one year after the date on which the registration statement is declared
effective. The Company shall not be required by this Section 1(b) to effect a
registration of Shares unless (A) Form S-3, or another equivalent short-form
registration statement, is then available to the Company for such registration,
and (B) the aggregate number of the Shares requested to be registered exceeds
1,000,000 Shares as adjusted for any Adjustments. Notwithstanding anything
contained herein to the contrary, the Company shall not be required to effect a
registration pursuant to this Section 1(b) more often than once every six
months.
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The Majority Shareholders may withdraw a request under this Section
1(b) in circumstances where the Company is in material breach of its obligations
hereunder and has not cured such breach after notice thereof and a reasonable
opportunity to do so, or the withdrawal occurs in connection with a delay by the
Company or inability of the Majority Shareholders to include all of the Shares
requested by the Majority Shareholders to be so registered or the failure of any
requested registration to become or remain effective as provided herein.
(c) CERTAIN REGISTRATION CONDITIONS. The Company shall not be required
to effect a registration of any Shares pursuant to Section 1(a) or 1(b), or file
any post-effective amendment thereto:
(1) unless the Shareholders registering Shares (collectively,
the "Registering Shareholders") agree (w) that they have a present intention to
sell their Shares so requested (x) to sell and distribute a portion or all of
their Shares in accordance with the plan or plans of distribution adopted by and
through underwriters, if any, acting for the Company with respect to any request
under Section 1(a), and (y) to bear a pro rata share of underwriter's discounts
and commissions;
(2) if, in the case of a request for registration under the
provisions of Section 1(b), in the opinion of counsel for the Company and
counsel for the Registering Shareholders, the Shares for which registration has
been requested may be disposed of within a comparable time frame without
registration under the Securities Act and upon such disposition all legends on
certificates representing such Shares which restrict transfer under the
Securities Act and applicable state securities laws may be removed from such
certificates and any such restriction and legends are so removed;
(3) if, in the case of a request for registration of an
underwritten offering under the provisions of Section 1(b), (x) a registration
statement with respect to Common Stock became effective in the same calendar
quarter in which such request was made, (y) the Company in good faith
anticipates filing a registration statement for an offering of Common Stock for
the Company's account within sixty (60) days after such demand date and has not
abandoned such proposed offering; or (z) the Company has received a request for
a demand registration from the holders of other registration rights pursuant to
which the Company is effecting a registration of Common Stock within sixty (60)
days of the date of the Registering Shareholders' request;
(4) unless the Company has received from the Registering
Shareholders all such information the Company reasonably requests from the
Registering Shareholders concerning them and their intended method of
distribution of the Shares to enable the Company to include in the registration
statement all material facts required to be disclosed therein; or
(5) if the particular Shares for which registration has been
requested have been distributed to the public pursuant to an offering registered
under the Securities Act, sold to the public through a broker, dealer or market
maker in compliance with Rule 144 under the Securities Act (or any similar rule
then in force), or repurchased by the Company or any affiliate thereof.
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(d) COVENANTS AND PROCEDURES. If and whenever the Company is required
hereunder to effect the registration of Shares under the Securities Act, the
Company, as expeditiously as possible, shall:
(1) In accordance with the Securities Act and all applicable
rules and regulations, promptly, and in any event within sixty (60) days of the
request, prepare and file with the Commission a registration statement covering
the Shares requested to be registered and use its best efforts to cause such
registration statement to become and remain effective. The Company will file
such post-effective amendments to such registration statement (and use its best
efforts to cause them to become effective) and such supplements as are necessary
so that current prospectuses are at all times available until the earlier of the
completion of the distribution of all shares under the registration statement or
two years after the effective date of the registration statement; PROVIDED that
before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to counsel selected by the
Registering Shareholders, and the sales or placement agent or agents, if any,
for the Shares and the managing underwriter or underwriters, if any, draft
copies of all such documents proposed to be filed at least seven (7) days prior
to such filing, which documents will be subject to the reasonable review of the
Registering Shareholders, the sales or placement agent or agents, if any, for
the Shares and the managing underwriter or underwriters, if any, and their
respective agents and representatives and (x) the Company will not include in
any registration statement information concerning or relating to the Registering
Shareholders to which such Registering Shareholders shall reasonably object in
writing (unless in the reasonable opinion of outside counsel the inclusion of
such information is required by applicable law or the regulations of any
securities exchange to which the Company may be subject), and (y), the Company
will not file any registration statement pursuant to Section 1(b) or amendment
thereto or any prospectus or any supplement thereto to which the Registering
Shareholders and managing Underwriter shall reasonably object in writing;
If the offering is to be underwritten, in whole or in part,
enter into a written underwriting agreement in form and substance reasonably
satisfactory to the managing underwriter of the public offering, the Registering
Shareholders and the Company;
If the Shares to be covered by the registration statement are
not to be sold to or through underwriters acting for the Company, the Company
shall: (w) deliver to the Registering Shareholders, the sales or placement agent
or agents, if any, and the managing underwriter or underwriters, if any,
("Underwriter" or "Underwriters") as promptly as practicable as many copies of
preliminary prospectuses as the Registering Shareholders reasonably request, and
the Registering Shareholders shall keep, or cause to be kept, a written record
of the distribution of such preliminary prospectuses and shall refrain from
delivery of such preliminary prospectuses in any manner or under any
circumstances which would violate the Securities Act or the securities laws of
any other jurisdiction, including the various states of the United States, (x)
deliver to the Registering Shareholders, and the Underwriters as soon as
practicable after the effective date of the registration statement, and from
time to time thereafter as many copies of the prospectuses required to be
delivered in connection with the sale of Shares registered under the
registration statement as the Registering Shareholders or Underwriter reasonably
request, (y) in case of the happening, after the effective date of such
registration statement, of any event or occurrence which is required or may be
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advisable, in the judgment of the Company, the Registering Shareholders, any
Underwriter and their counsel to be set forth in an amendment of or supplement
to such prospectus to make any statements therein not misleading, give the
Registering Shareholders and Underwriter written notice thereof and prepare and
furnish to the Registering Shareholders, and Underwriters in such quantities as
it may reasonably request, copies of such amended prospectus or of such
supplement to be attached to the prospectus in order that the prospectus, as so
amended or supplemented, will not contain any 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, in the light of the circumstances
under which they were made, not misleading and to comply with the Securities
Act, and (z) deliver to the Company and the Underwriters upon reasonable request
copies of any documents incorporated into any such registration statement,
prospectus, amendment or supplement.
(2) On or prior to the date on which the registration
statement is declared effective, the Company shall use its best efforts to
register or qualify, and cooperate with the Registering Shareholders, the
Underwriter or Underwriters, if any, and their counsel, in connection with the
registration or qualification of the Shares covered by the registration
statement for offer and sale under the securities laws of each state and other
jurisdiction of the United States as the Registering Shareholders or Underwriter
reasonably requests, to use its best efforts to keep each such registration or
qualification effective, including through new filings, or amendments or
renewals, during the period such registration statement is required to be kept
effective and to do any and all other acts or things necessary or advisable to
enable the disposition in all such jurisdictions of the Shares covered by the
applicable registration statement; provided that the Company will not be
required to qualify generally to do business in any jurisdiction where it is not
then so qualified.
(3) The Company shall make generally available to the
Registering Shareholders and any underwriter participating in the offering
conducted pursuant to the registration statement an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act no later than
45 days after the end of the 12-month period beginning with the first day of the
Company's first fiscal quarter commencing after the effective date of the
registration statement, which earnings statement shall cover said 12-month
period, which requirement will be deemed to be satisfied if the Company timely
files complete and accurate information on Forms 10-QSB, 10-KSB, and (if needed)
8-K under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and otherwise complies with Rule 158 under the Securities Act.
(4) The Company shall cooperate with the Registering
Shareholders and the Underwriter or Underwriters, if any, to facilitate the
timely preparation and delivery of certificates (not bearing any restrictive
legends) representing the Shares to be sold under the registration statement,
and enable such securities to be in such denominations and registered in such
names as the Underwriter or Underwriters, if any, or the Registering
Shareholders request, subject to the obligation to return any certificates
representing securities not sold.
(5) The Company shall make available for inspection by the
Registering Shareholders and each Underwriter participating in any disposition
pursuant to such registration statement, and any attorney, accountant or other
agent retained by the Registering Shareholders or any such Underwriter
(collectively, the "Inspectors"), all financial and other records, pertinent
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corporate documents and properties of the Company, as shall be reasonably
necessary to enable them to exercise their due diligence responsibility, and
cause the Company's officers, directors, employees, and independent public
accountants to supply all information reasonably requested by any such Inspector
in connection with such registration statement, in each case to the extent
necessary to enable the Registering Shareholders and any Underwriter to conduct
a "reasonable investigation" for purposes of Section 11(a) of the Securities
Act.
(6) The Company shall obtain a "cold comfort" letter from the
Company's independent public accountants, and an opinion of counsel for the
Company, each in customary form and covering such matters of the type
customarily covered by cold comfort letters and opinions of counsel in
connection with public offerings of securities, as the Registering Shareholders
or Underwriters may reasonably request.
(7) If requested by the Registering Shareholders, the Company
shall promptly incorporate in a prospectus, prospectus supplement or
post-effective amendment such information as the Registering Shareholders
reasonably specify should be included therein, including, without limitation,
information relating to the planned distribution of Shares, the number of Shares
being sold by each Registering Shareholder, the name and description of each
Registering Shareholder, the offering price of such Shares and any discount,
commission or other compensation payable in respect of the Shares being sold,
the purchase price being paid therefor to the Shareholder and information with
respect to any other terms of the offering of the Shares to be sold in such
offering, except to the extent that the Company is advised in a written opinion
of outside counsel that the inclusion of such information is reasonably likely
to violate applicable securities laws; and make all required filings of such
prospectus, prospectus supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such prospectus, prospectus
supplement or post-effective amendment.
(8) If requested by the Registering Shareholders, the Company
shall use reasonable efforts to participate in and assist with a "road show" any
other customary marketing efforts in connection with the sale of Shares pursuant
to such registration statement, at such times and in such manner as the Company
shall approve.
(9) The Company shall promptly notify the Registering
Shareholders and Underwriters, after becoming aware thereof, when the
registration statement or any related prospectus or any amendment or supplement
has been filed, and, with respect to the registration statement or any
post-effective amendment, when the same has become effective, (A) of any request
by the Commission for amendments or supplements to the registration statement or
the related prospectus or for additional information, (B) of the issuance by the
Commission of any stop order suspending the effectiveness of the registration
statement or the initiation of any proceedings for that purpose, (C) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the initiation of
any proceeding for such purpose or (D) of the happening of any event which makes
any statement in the registration statement or any post-effective amendment
thereto, prospectus or any amendment or supplement thereto, or any document
incorporated therein by reference untrue in any material respect or which
requires the making of any changes in the registration statement or
post-effective amendment thereto
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or any prospectus or amendment or supplement thereto so that they will not
contain any untrue statement or a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
(in light of the circumstances under which they were made) not misleading.
(e) XXXXXX AND WESTAR REGISTRATION RIGHTS. The Shareholders acknowledge
that Xxxxxx has certain incidental registration rights with respect to equity
securities of the Company owned by it pursuant to that certain Agreement dated
August 15, 1996 between Xxxxxx and the Company (the "Xxxxxx Registration
Rights"). Accordingly, the Shareholders acknowledge that pursuant to the Xxxxxx
Registration Rights, Xxxxxx has the right to participate in any registration
effected pursuant to this Section 1. The Shareholders acknowledge that Westar
has certain incidental and demand registration rights with respect to equity
securities of the Company owned by it pursuant to that certain Registration
Rights Agreement dated October 21, 1997 between Westar Capital, Inc. and the
Company (the "Westar Registration Rights"). On November 24, 1997, Westar
Capital, Inc. assigned all of its rights and obligations under its Registration
Rights Agreement to Westar. Accordingly, the Shareholders acknowledge that
pursuant to the Westar Registration Rights, Westar has the right to participate
in any registration effected pursuant to this Section 1.
(f) COMPANY COVENANT. The Company covenants to and with the
Shareholders that to the extent it shall be required to do so under the Exchange
Act, the Company shall timely file the reports required to be filed by it under
the Exchange Act or the Securities Act (including, but not limited to, the
reports under Sections 13 and 15(d) of the Exchange Act referred to in Rule
144(c)(1) promulgated by the Commission under the Securities Act and the rules
and regulations adopted by the Commission thereunder) and shall take such
further action as the Shareholders may reasonably request, all to the extent
required from time to time to enable the Shareholders to sell Shares without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such rule may be amended from
time to time, or any similar rule or regulation hereafter promulgated by the
Commission.
2. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. If Shares are registered under the
Securities Act pursuant to this Agreement, the Company will indemnify and hold
harmless each Registering Shareholder and each underwriter of such Shares and
its respective officers and directors and each other person, if any, who
controls any Registering Shareholder or such underwriter within the meaning of
the Securities Act, against any losses, claims, damages, actions (actual or
threatened), liabilities, costs and expenses (including legal fees and costs of
court), joint or several, to which a Registering Shareholder or such
underwriter, director, officer, or controlling person may become subject under
the Securities Act or otherwise, if and to the extent that such losses, claims,
damages, costs, expenses or liabilities arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained, in
any registration statement under which such Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged
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omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; and will reimburse each
such Registering Shareholder and each such underwriter, and each such
controlling person, for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage
or liability; PROVIDED, HOWEVER, that the Company shall not be liable to a
Registering Shareholder or each such underwriter or controlling persons in any
such case 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 made in such registration statement, preliminary
prospectus or final prospectus or such amendment or supplement in reliance upon
and in conformity with information furnished to the Company through a written
instrument duly executed by each such Registering Shareholder or such
underwriter specifically for use in the preparation thereof.
(b) INDEMNIFICATION BY THE SHAREHOLDERS. In connection with any
registration statement in which a Registering Shareholder is participating, such
Registering Shareholder shall indemnify and hold harmless (in the same manner
and to the same extent as set forth in Section 2(a)) the Company, each director
of the Company, each officer of the Company who signs such registration
statement and all persons who control the Company within the meaning of the
Securities Act, with respect to any statement or omission from such registration
statement, any preliminary prospectus or final prospectus contained therein, or
any amendment or supplement thereto, to the extent, but only to the extent, such
statement or omission was made in reliance upon and in conformity with
information furnished to the Company through a written instrument duly executed
by the Registering Shareholder specifically for use in the preparation of such
registration statement, preliminary prospectus or final prospectus or such
amendment or supplement thereto.
(c) INDEMNIFICATION PROCEDURES. Promptly after receipt by an
indemnified party of notice of the commencement of any action involving a claim
referred to in the preceding paragraphs of this Section 2, such indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the indemnifying party of the commencement of such
action; but the omission so to notify the indemnifying party will not relieve it
from any liability which it may have to the indemnified party unless such
indemnifying party is prejudiced by such omission. If any such action is brought
against an indemnified party, the indemnifying party will be entitled to
participate in and to assume 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 the defense
thereof, the indemnifying party will not be liable to such indemnified party for
any legal or other expenses incurred by the latter in connection with the
defense thereof unless (i) in the reasonable opinion of counsel for the
indemnification party a conflict of interest exists between the indemnified
party and indemnifying party, (ii) the indemnified party reasonably objects to
such assumption on the basis that there may be defenses available to it which
are different from or in addition to the defenses available to the indemnifying
party, (iii) the indemnifying party has failed to timely assume the defense of
any such action or proceeding or (iv) the indemnifying party and its counsel do
not actively and vigorously pursue the defense of such action . Whether or not
such defense is assumed by the indemnifying party, the indemnifying party will
not be subject to any liability for any settlement made without its consent. No
indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a
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release from all liability in respect of such claim or litigation. An
indemnifying party who elects not to assume the defense of an action or where a
potential conflict of interest or other defenses may be available, shall not be
obligated to pay the fees and expenses of more than one counsel and local
counsel where appropriate for all parties indemnified by such indemnifying party
with respect to such action, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such action.
Cost and expenses incurred by the indemnified party shall be reimbursed, from
time to time, by the Company as and when bills are received or expenses are
incurred.
(d) CONTRIBUTION. If the indemnification provided for in this Section 2
from the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities, and expenses referred to above shall be deemed to
include all legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 2(d) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
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.
3. EXPENSES. All expenses incurred by the Company and the Registering
Shareholders in connection with any registration statement covering Shares
offered by the Registering Shareholders, including, without limitation, all
registration and filing fees (including all expenses incident to filing with the
National Association of Securities Dealers, Inc.), printing expenses, fees and
disbursements of counsel (including the reasonable fees and disbursements of one
counsel for the Registering Shareholders) and of the independent certified
public accountants, and the expense of qualifying such Shares under state blue
sky laws (including reasonable fees and disbursements of counsel in connection
with such qualification), messenger, telephone and delivery expenses, fees and
expenses of counsel for the underwriters, costs of preparation, printing,
distribution and reproduction of the registration statement, each prospectus,
and each amendment and supplement thereto, the cost and charges of any transfer
agent and registrar, and the premiums and other costs of insurance against
liability arising out of such offering, if any, shall be borne by the Company;
PROVIDED, HOWEVER, that the Registering Shareholders shall bear its pro rata
share of (A)
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underwriter's discounts and commissions and (B) any transfer taxes related to
the sale of Shares. To the extent any such expenses are incurred or paid by the
Registering Shareholders, any sales or placement agent or underwriter, if any,
thereof, the Company shall reimburse such person for the full amount thereof
promptly after a request therefor.
4. DISPOSITIONS DURING REGISTRATION. The Shareholders shall not effect
any public sale or distribution (including sales pursuant to Rule 144) of equity
securities of the Company, or any securities convertible or exchangeable or
exercisable for such securities, during the 15 days prior to and the 90-day
period beginning on the effective date of any underwritten demand registration
or underwritten incidental registration (or such longer period as the
Shareholders may agree with the underwriter). Each Shareholder agrees to comply
with the foregoing requirements even if its Shares are not being included in
such registration.
5. TRANSFER OF RIGHTS. No registration rights and benefits set forth in
this Agreement, including indemnification by the Company, shall be transferable
by the Shareholders in connection with the transfer of Shares.
6. TERM. The obligations of the Company to register Shares hereunder
shall terminate on the fourth anniversary of the date of this Agreement with
respect to the registration of Shares not otherwise demanded or effected by such
date. Section 2 shall survive the termination of this Agreement.
7. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
hand delivered or sent by first class registered or certified mail (return
receipt requested), postage prepaid, to the respective addresses of the Company
and the Shareholders set forth below, unless subsequently changed by written
notice. Any notice shall be deemed to be effective when it is received.
To the Shareholders:
Xxxxxxx Xxxxxx, Esq.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
To the Company:
Guardian International, Inc.
0000 Xxxxx 00xx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx, President
Phone: 000-000-0000
Fax: 000-000-0000
11
With a copy to:
Xxxxxx Xxxxxxx, Esq.
Steel Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxxx, XX 00000-0000
Phone: 000-000-0000
Fax: 000-000-0000
8. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF FLORIDA WITHOUT REGARD
TO CONFLICT OF LAW PRINCIPLES THEREUNDER.
9. AMENDMENTS. This Agreement may be amended only by an instrument in
writing executed by all the parties hereto.
10. COUNTERPARTS. This Agreement may be executed in multiple original
counterparts, each of which shall be deemed an original, but all of which
together shall constitute the same instrument.
11. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable. In the
event any provision of this Agreement shall be held invalid, the parties agree
to enter into such further agreements as may be necessary in order to carry out
the intent and purposes of the parties herein.
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
GUARDIAN INTERNATIONAL, INC.
By:/S/ XXXXXXX XXXXXXXX
------------------------
Xxxxxxx Xxxxxxxx
President and Chief Executive Officer
/S/ XXXX X. XXXXX
---------------------------
XXXX X. XXXXX
/S/ XXXXXXX X. XXXXX
---------------------------
XXXXXXX X. XXXXX
/S/ XXXXXX XXXXX
---------------------------
XXXXXX XXXXX
/S/ XXXXXXX XXXXXXXX
---------------------------
XXXXXXX XXXXXXXX
/S/ XXXXX XXXXX
---------------------------
XXXXX XXXXX
/S/ XXXXXX XXXXX
---------------------------
XXXXXX XXXXX
/S/ XXXXXX XXXXXX
---------------------------
XXXXXX XXXXXX
/S/ XXXXXXX XXXXXXXXXX
---------------------------
XXXXXXX XXXXXXXXXX
13
/S/ XXXX X. XXXXX
---------------------------
XXXX X. XXXXX
/S/ XXXXXX XXXXXXX
---------------------------
XXXXXX XXXXXXX
/S/ XXXXXXX XXXXXXX
---------------------------
XXXXXXX XXXXXXX
/S/ XXXXX XXX
---------------------------
XXXXX XXX
/S/ XXXXX XXXXXXX
---------------------------
XXXXX XXXXXXX
/S/ XXXXXX XXXXXXX
---------------------------
XXXXXX XXXXXXX
/S/ XXXXXXXX XXXXXXX
---------------------------
XXXXXXXX XXXXXXX
/S/ XXXXXX XXXXX
---------------------------
XXXXXX XXXXX
/S/ XXXXX XXXXX
---------------------------
XXXXX XXXXX
/S/ XXXX XXXXXXXXXXX
---------------------------
XXXX XXXXXXXXXXX
/S/ XXXXXXX XXXXXXXX
---------------------------
XXXXXXX XXXXXXXX
14
/S/ XXXXXX XXXXXXXXX
---------------------------
XXXXXX XXXXXXXXX
/S/ XXXXXX XXXXXXXXX
---------------------------
XXXXXX XXXXXXXXX
/S/ XXXXXX XXXXXXXX
---------------------------
XXXXXX XXXXXXXX
/S/ XXXXXXX XXXX
---------------------------
XXXXXXX XXXX &
W.A. LEVY TRUST
/S/ XXXXXX XXXXX
---------------------------
XXXXXX XXXXX
/S/ XXXXXX XXXXXXX
---------------------------
XXXXXX XXXXXXX
/S/ XXXXXX XXXXXXXX
---------------------------
XXXXXX XXXXXXXX
/S/ XXXXXX XXXXX
---------------------------
XXXXXX XXXXX
/S/ XXXX XXXX
---------------------------
XXXX XXXX
/S/ XXXXXX XXXXX
---------------------------
XXXXXX XXXXX
/S/ XXXXXX XXXXX
---------------------------
XXXXXX XXXXX
15
/S/ XXXXXXXXX XXXXXXX
---------------------------
XXXXXXXXX XXXXXXX
/S/ XXXXXX XXXXXXX
---------------------------
XXXXXX XXXXXXX
/S/ XXXXX XXXXXX
---------------------------
XXXXX XXXXXX
/S/ XXXXX XXXXXXX
---------------------------
XXXXX XXXXXXX
/S/ XXXXX XXXXXXX
---------------------------
XXXXX XXXXXXX
/S/ XXXXX XXXX
---------------------------
XXXXX XXXX
/S/ XXXXXXXX XXXX
---------------------------
XXXXXXXX XXXX
/S/ XXXXXX XXXX
---------------------------
XXXXXX XXXX
/S/ XXXXX X. XXXXX
---------------------------
XXXXX XXXXXX
/S/ XXXXXXX XXXXXXX
---------------------------
XXXXXXX XXXXXXX
16
/S/ XXXX XXXXX
---------------------------
XXXX XXXXX
/S/ XXX XXXXX
---------------------------
XXX XXXXX
/S/ XXXX XXXXXX
---------------------------
XXXX XXXXXX
/S/ XXXXXX XXXXXX
---------------------------
XXXXXX XXXXXX
/S/ XXX XXXXXXXXX
---------------------------
XXX XXXXXXXXX
/S/ XXXXXXX XXXXXXXX
---------------------------
XXXXXXX XXXXXXXX
/S/ XXXX XXXXX
---------------------------
XXXX XXXXX
/S/ XXXXXX XXXXX
---------------------------
XXXXXX XXXXX
/S/ XXXXXXX XXXXX
---------------------------
XXXXXXX XXXXX
ACKNOWLEDGED AND AGREED:
XXXXXX FINANCIAL, INC.
By: /S/ XXXXX X. XXXX
-----------------
Name: XXXXX X. XXXX
Title: Assistant Vice President
Date: 2/27/98
17
WESTAR SECURITY, INC.
By:/S/ XXXX X. XXXXX
-----------------
Name: Xxxx X. Xxxxx
Title: Secretary/Treasurer
Date: 2/23/98
18
