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Exhibit 10.1
PAMARCO TECHNOLOGIES INC.
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REGISTRATION RIGHTS AGREEMENT
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THIS AGREEMENT is made as of the 25th day of July, 1994 by and among
Pamarco Technologies Inc., a Delaware corporation (the "Company"), and the
undersigned security holders of the Company (the "Stockholders").
BACKGROUND
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The Stockholders are persons and entities that are acquiring
contemporaneously with the execution of this Agreement shares of Class A Common
Stock, par value $0.01 per share, of the Company (the "Voting Common Stock") or
Class B Common Stock, par value $0.01 per share, of the Company (the "Non-Voting
Common Stock," and together with the Voting Common Stock, the "Common Stock").
The Company has agreed to provide the registration rights provided for in this
Agreement as an inducement for the Stockholders to enter into other agreements
contemporaneously with this Agreement.
WITNESSETH:
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The parties hereto, each intending to be legally bound and in exchange
for the mutual covenants herein, agree as follows:
1. Demand Registrations.
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(a) REQUESTS FOR REGISTRATION. At any time, each Significant
Stockholder (defined below) may demand registration (a "Demand Registration")
under the Securities Act of 1933, as amended (the "1933 Act"), of all or any
portion of the Registrable Securities (defined below) owned by such Significant
Stockholder. In order to accomplish such demand, a Significant Stockholder shall
send written notice of the demand to the Company, and such notice shall specify
the number of Registrable Securities sought to be registered. The Significant
Stockholders each have the right to one Demand Registration; provided, however,
that the Company shall only be required to proceed with a Demand Registration
requested by a Significant Stockholder if the number of Registrable Securities
that the Stockholders (including the Significant Stockholder requesting the
Demand Registration) and the Company shall have elected to include in such
Demand Registration pursuant to this Section 1 has an aggregate fair market
value, in the opinion of an investment banker acceptable to the Significant
Stockholder requesting the Demand Registration and to the Company, in excess of
$5 million.
(b) PROCEDURE. Within 10 days after receipt of such a demand, the
Company will give written notice of such requested registration to all other
holders of Registrable Securities and will include in such registration, subject
to the allocation provisions below, all other Registrable Securities with
respect to which the Company has received written requests for inclusion within
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20 days after the Company's mailing of such notice, plus any securities of the
Company that the Company chooses to include on its own behalf.
(c) EXPENSES. In a Demand Registration, the Company will pay the
Registration Expenses (defined below), but the Underwriting Commissions (defined
below) will be shared by the Company and those holders of Registrable Securities
whose Registrable Securities are included in the Demand Registration in
proportion to any securities included on their behalf.
(d) PRIORITY ON DEMAND REGISTRATIONS. If a Demand Registration is
underwritten and the managing underwriters advise the Company in writing that in
their opinion the number of Registrable Securities requested to be included
exceeds the number that can be sold in such offering, at a price reasonably
related to fair value, the Company will include in such Demand Registration (i)
first, the Registrable Securities requested to be included in such Demand
Registration by all Stockholders, including the Significant Stockholder making
the demand, pro rata on the basis of the number of Registrable Securities owned,
and (ii) second, any securities that the Company desires to include on its own
behalf. A Demand Registration shall not be con sidered to be a Significant
Stockholder's one Demand Registration under Section 1(a), and the Company shall
pay the Registration Expenses of such Demand Registration, if (i) as a result of
the foregoing allocation, the Significant Stockholder that initiated the Demand
Registration is not able to register and sell in the Demand Registration at
least 75% of the Registrable Securities sought to be included in the Demand
Registration by such Significant Stockholder, as specified in such Stockholder's
notice by which the demand was made, (ii) the gross proceeds of the securities
included in the Demand Registration on behalf of the Company constitute at least
20% of the total gross proceeds of the Demand Registration, or (iii) the
registration statement requested by such Shareholders does not become effective
for any reason.
(e) SELECTION OF UNDERWRITERS. If any Demand Registration is
underwritten, the selection of investment banker(s) and manager(s) and the other
decisions regarding the underwriting arrangements for the offering will be made
by the Significant Stockholder initiating such registration.
(f) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company will not be
obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Regis tration or any registration in which
the holders of Registrable Securities were given piggyback rights pursuant to
Section 2 below.
(g) CONTEMPORANEOUS DEMAND. If any holder of the Company's securities
that is not a holder of Registrable Securities under this Agreement exercises
demand registration rights to have the Company register its securities under the
1933 Act (a "Non-Stockholder Registration") within a period of 30 days before or
after the time any Significant Stockholder shall have requested a Demand
Registration, then (i) the holders of Registrable Securities that desire to be
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included in the Non-Stockholder Registration and the holders of securities other
than Registrable Securities that have registration rights with respect to such a
registration shall be entitled to participate in the Non-Stockholder
Registration on a pro rata basis, according to the number of shares owned by the
holders seeking to have securities included in such registration, (ii) the
Company will pay all of the Registration Expenses of the Non-Stockholder
Registration, and (iii) the Non-Stockholder Registration shall not count as a
Demand Registration with respect to any Significant Stockholder that shall have
requested a Demand Registration within such time period unless the Significant
Stockholder is able to register and sell at least 75% of the Registrable
Securities sought to be registered by that Stockholder in its Demand
Registration.
2. PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register any
of its securities under the 1933 Act (other than a Demand Registration), and the
registration form to be used may be used for the registration of Registrable
Securities (a "Piggyback Registration"), the Company will give prompt written
notice to all holders of Registrable Securities and will include in such
Piggyback Registration, subject to the allocation provisions below, all
Registrable Securities with respect to which the Company has received written
requests for inclusion within 20 days after the Company's mailing of such
notice. The Company shall not select a form of registration statement which
imposes, for its use, limitations on the maximum value or number of securities
to be registered if these limitations would preclude registration of the
Registrable Securities that the Company has been requested to include in such
registration.
(b) PIGGYBACK EXPENSES. In all Piggyback Registrations, the Company
will pay the Registration Expenses related to the Registrable Securities of the
Selling Stockholders, but the Selling Stockholders will pay the Underwriting
Commissions related to their Registrable Securities.
(c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number that
can be sold in such offering, at a price reasonably related to fair value, the
Company will allocate the securities to be included as follows: first, the
securities the Company proposes to sell on its own behalf; and second,
Registrable Securities requested to be included in such registration, pro rata
on the basis of the number of Registrable Securities owned among the Selling
Stockholders (defined below).
(d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration is
initiated as an underwritten secondary registration on behalf of holders of the
Company's securities (other than a Demand Registration pursuant to Section 1),
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such
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registration exceeds the number that can be sold in such offering, at a price
reasonably related to fair value, the Company will allocate the securities to be
included as follows: first, the securities requested to be included by the
holders initiating such registration; and second, Registrable Securities
requested to be included in such registration, pro rata on the basis of the
number of Registrable Securities owned among the Selling Stockholders.
(e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is
underwritten, the selection of investment banker(s) and manager(s) and the other
decisions regarding the underwriting arrangements for the offering will be made
by the Company if the registration is under Section 2(c), or by the holders
initiating such registration, if the registration is under Section 2(d).
3. REGISTRATION ON FORM S-3.
The Company shall use its best efforts to qualify for registration on
Form S-3 or any com parable or successor form or forms; and to that end, the
Company shall register (whether or not required by law to do so) its Common
Stock under the Securities Exchange Act of 1934 in accord ance with the
provisions of that Act as soon as possible following the effective date of the
first registration of any of the Company's securities under the 1933 Act. After
the Company has so qualified, in addition to the rights contained in the
foregoing provisions of this Registration Rights Agreement, each holder of
Registrable Securities shall have the right to require registration of its
Registrable Securities on Form S-3 at the Company's expense, provided that (a)
the Registrable Securities to be registered shall have a market value of at
least $500,000 and (b) each holder shall be entitled to only two such
registrations during any 12-month period. When the Company re ceives notice of
any holder's request for a registration on Form S-3, it shall send notice of
such proposed registration to all other holders of Registrable Securities.
4. HOLDBACK AGREEMENTS.
Neither the Stockholder nor the Company shall effect any public sale or
distribution of equity securities of the Company or any securities convertible
into or exchangeable or exercisable for such securities during the seven days
prior to and the 90 days after any underwritten Demand Registration or
underwritten Piggyback Registration has become effective (except as part of such
underwritten registration).
5. REGISTRATION PROCEDURES.
Whenever the holders of Registrable Securities have requested that any
Registrable Secur ities be registered pursuant to Section 1 or 2 of this
Agreement, the Company will, as expeditiously as possible:
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(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration
statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supple ments
thereto, the Company will furnish each Selling Stockholder with copies
of all such documents proposed to be filed);
(b) prepare and file with the Securities and Exchange
Commission 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 for a period of
not less than 120 days;
(c) furnish to each Selling Stockholder such number of copies
of such registration statement, each amendment and supplement thereto
and the prospectus included in such registration statement (including
each preliminary prospectus), and such other documents as such seller
may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of
such jurisdictions as the managing underwriter(s) may reasonably
request;
(e) notify each Selling Stockholder at any time when a
prospectus relating thereto is required to be delivered under the 1933
Act within the period that the Company is required to keep the
registration statement effective of the hap pening of any event as a
result of which the prospectus included in such registration statement
contains an untrue statement of a material fact or omits any fact
necessary to make the statement therein not misleading, and, at the
request of any such seller, the Company will prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not
contain an untrue statement of a material fact or omit to state any
fact necessary to make the statement therein not misleading;
(f) cause all such Registrable Securities to be listed or
included on securities exchanges on which similar securities issued by
the Company are then listed or included;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such
registration statement;
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(h) enter into such customary agreements (including an
underwriting agreement in customary form) and take such other customary
actions as may be reasonably necessary to expedite or facilitate the
disposition of such Registrable Securities;
(i) obtain a "comfort" letter addressed to the Company from
its independent public accountants in customary form and covering such
matters of the type customarily covered by "comfort" letters; and
(j) make available for inspection by any Selling Stockholder,
any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent
retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company,
and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration
statement.
6. INDEMNIFICATION.
(a) The Company hereby indemnifies, to the extent permitted by law,
each Stockholder, its officers and directors, and each person who controls such
holder (within the meaning of the 1933 Act), against all losses, claims,
damages, liabilities and expenses arising out of or resulting from any untrue or
alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus 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 except insofar as the
same are caused by or contained in any information furnished in writing to the
Company by such holder expressly for use therein or by any such holder's failure
to deliver a copy of the registration statement or prospectus or any amendments
or supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company will indemnify the underwriters, their officers and
directors, and each person who controls such underwriters (within the meaning of
the 0000 Xxx) to the same extent as provided above with respect to the
indemnification of the Stockholders.
(b) In connection with any registration statement in which a Selling
Stockholder is participating, each such holder will furnish to the Company in
writing such information as is reasonably requested by the Company for use in
any such registration statement or prospectus and will indemnify, to the extent
permitted by law, the Company, its directors and officers and each person who
controls the Company (within the meaning of the 0000 Xxx) against any losses,
claims, damages, liabilities and expenses resulting from any untrue or alleged
untrue statement
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of material fact or any omission or alleged omission of a material fact required
to be stated in the registration statement or prospectus or any amendment
thereof or supplement thereto or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is
contained in information so furnished in writing by such holder specifically for
use in preparing the registration statement. Notwithstanding the foregoing, the
liability of a Selling Stockholder under this Section 6(b) shall be limited to
an amount equal to the net proceeds actually received by the Selling Stockholder
from the sale of Registrable Securities covered by the registration statement.
(c) Any person entitled to indemnification hereunder will (i) give
prompt notice to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party will not
be subject to any liability for any settlement made without its consent (but
such consent will not be unreasonably withheld). An indemnifying party who is
not entitled, or elects not, to assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, 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 claim.
7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Selling Stockholder may participate in any underwritten registration
hereunder unless such holder (a) agrees to sell such holder's securities on the
basis provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements under Sections 1(e) or 2(e), and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
8. DEFINITIONS.
(a) The term "Registrable Securities" means (i) the Voting Common Stock
of the Company registered in the names of the Stockholders from time to time,
(ii) the Voting Common Stock issuable upon conversion of the Non-Voting Common
Stock from time to time, and (iii) any securities issued or to be issued with
respect to the securities referred to above by way of a stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization, provided such securities have voting
rights with respect to the election of directors and other matters presented
generally to the stockholders of the Company for consideration and have
unlimited rights with respect to dividends and the proceeds of any
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liquidation of the Company. As to any particular Registrable Securities, such
securities will cease to be Registrable Securities when they have been (A)
effectively registered under the 1933 Act and disposed of in accordance with the
registration statement covering them, or (B) transferred pursuant to Rule 144
(or any similar provision then in force).
(b) The term "Registration Expenses" means all expenses incident to the
Company's performance of or compliance with this Agreement, including all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws, printing expenses, messenger and delivery expenses, expenses and
fees for listing the securities to be registered on exchanges on which similar
securities issued by the Company are then listed, and fees and disbursements of
counsel for the Company and of all independent certified public accountants,
underwriters (other than Underwriting Commissions) and other persons retained by
the Company.
(c) The term "Selling Stockholders" means registered holders of
Registrable Securities who request inclusion of all or a portion of their shares
of Registrable Securities in a Demand Registration pursuant to the Section 1(b)
or a Piggyback Registration pursuant to Section 2(a). Such term also includes
those Stockholders who demand a Demand Registration for the purposes of Sections
5, 6, and 7.
(d) The term "Significant Stockholder" means each of Bradford Venture
Partners, L.P. and Overseas Equity Investors Partners.
(e) The term "Underwriting Commissions" means all underwriting
discounts or commissions relating to the sale of securities of the Company, but
excludes any expenses reimbursed to underwriters.
9. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS.
From and after the date of this Agreement, the Company may enter into
an agreement with any holder or prospective holder of any securities of the
Company that would allow such holder or prospective holder to include such
securities in any registration filed under Sections 1 or 2 hereof or that would
add any such holder or prospective holder as a party to this Agreement. The
Company shall not enter into any such agreement, however, without the prior
written consent of the beneficial holders of a majority of the outstanding
Registrable Securities unless under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration only to
the extent that the inclusion of its securities would not reduce the amount of
the Registrable Securities that the Stockholders would be entitled to include in
such registration.
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10. MISCELLANEOUS.
(a) NOTICES. Any notices required hereunder shall be deemed to be given
upon the earlier of the date when received at, or the seventh day after the date
when sent by certified or registered mail to, the address of the Company's
corporate headquarters in the case of any notice to the Company, and until
changed by notice to the Company, the respective addresses of the Stockholders
on file with the Company in the case of any notice to the Stockholders.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement may be
amended or terminated and the Company may take any action herein prohibited, or
omit to perform any act herein required to be performed by it, if approved in
writing by the Stockholders that own beneficially a majority of the Registrable
Securities and or by any agreement permitted by Section 9.
(c) BINDING EFFECT. This Agreement will bind and inure to the benefit
of the respective successors (including any successor resulting from a merger or
similar reorganization), assigns, heirs, and personal representatives of the
parties hereto. Without limiting the generality of the foregoing, in addition,
if a Stockholder liquidates or reorganizes such that its assets are transferred
to its own stockholders or partners or to another entity, such stockholders,
partners or entity shall succeed to all of the rights of the Stockholder
hereunder. This Agreement shall be binding upon a party hereto upon its
execution and delivery of a copy hereof regardless of whether any of the other
persons or entities listed on the signature page hereof (other than the Company)
has not also become a party hereto, provided that any such omitted party shall
not have acquired any Common Stock on the date hereof.
(d) GOVERNING LAW. All questions concerning the construction, validity
and interpretation of this Agreement will be governed by the internal law, not
the law of conflicts, of Delaware.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be considered to be an original instrument and
to be effective as of the date
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first written above. Each such copy shall be deemed an original, and it shall
not be necessary in making proof of this Agreement to produce or account for
more than one such counterpart.
(f) INTERPRETATION. Unless the context of this Agreement clearly
requires otherwise, (i) references to the plural include the singular, the
singular the plural, the part the whole, (ii) references to one gender include
all genders, (iii) "or" has the inclusive meaning frequently identified with the
phrase "and/or" and (iv) "including" has the inclusive meaning frequently
identified with the phrase "but not limited to." The section and other headings
contained in this Agreement are for reference purposes only and shall not
control or affect the construction of this Agreement or the interpretation
thereof in any respect.
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[SIGNATURE PAGE FOR PAMARCO REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above. This Agreement shall be binding
upon any party that executes and delivers a copy hereof, irrespective of whether
any of the parties listed below (other than the Company) do not also become a
party hereto.
PAMARCO TECHNOLOGIES INC.
By:__________________________________
OVERSEAS EQUITY INVESTOR PARTNERS BRADFORD VENTURE PARTNERS, L.P.
By: Overseas Equity Investors Ltd.
General Partner By: Bradford Associates
By: By:
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XXXXXXXX XXXXX REVOCABLE TRUST XXXXXXXX XXXXX REVOCABLE TRUST NO.
NO. 1 U/D/T 12/3/91 2 U/D/T 12/3/91
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XXXXX X. XXXXXX, TRUSTEE U/A/D 11/4/78 XXXXXXXXX X. XXXXXX
F/B/O XXXX X. XXXXX
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BRADFORD XXXX XXXXX XXXX X. XXXXX, TRUSTEE U/A/D 3/17/69
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XXXXXXX X. XXXXX, TRUSTEE U/A/D XXXXXXX X. XXXXX, TRUSTEE U/A/D
2/26/88 F/B/O XXXXXXX XXX XXXXXX 12/26/84 F/B/O XXXXXXX XXX XXXXXX
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XXXXXXX X. XXXXX, TRUSTEE U/A/D
3/28/89 F/B/O BRADFORD TAYBROOK
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[SIGNATURE PAGE FOR PAMARCO REGISTRATION RIGHTS AGREEMENT]
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XXXXXXX XXXXX XXXXXXXXXXX F.O. GABRIELI
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