Exhibit 10.1(c)
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made between The Xxxxxx Group, Inc., a
Delaware corporation (the "Company"), and Xxxxxxx Xxxxx or his designated
assignee ("Shareholder"), as of December 26, 1995, and amends and restates in
full the Registration Rights Agreement entered into between the parties and
dated as of Devcember 26, 1995.
RECITALS:
In accordance with that certain Stock Purchase Agreement between the Company and
Shareholder, Shareholder has purchased 11,042 shares of the Company's common
stock (the "Common Stock"). The parties desire to set forth herein certain
rights, terms and conditions with respect to the registration of the shares of
Common Stock purchased by Shareholder.
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and Shareholder agree
as follows:
A. Registrations. If the Company has elected to effectuate a public
registration of shares of the Company's common stock for the Company's account,
the Company will give prompt notice to Shareholder (the "Company's Notice"). The
Company's Notice shall describe the date of proposed filing and the date by
which the registration rights granted pursuant to this Section 1 must be
exercised, the nature and method of any such registration, and shall include a
listing of the jurisdictions, if any, in which the Company proposes to register
or qualify the securities under the applicable securities or "Blue Sky" laws of
such jurisdictions. Upon receipt of the Company's Notice, Shareholder may
request, in writing, that the Company effect the public registration of the
Common Stock then held by Shareholder (which request shall specify the aggregate
number of shares intended to be registered by Shareholder and shall contain an
undertaking by Shareholder to cooperate fully with the Company in order to
permit the Company to comply with all applicable requirements of the relevant
securities laws and the rules and regulations thereunder and to obtain
acceleration of the effective date of the registration statement contemplated
thereby), and the Company will use its best efforts to cause all shares as to
which registration has been requested by Shareholder to be included in the
Company's registration statement on terms and conditions at least as favorable
to the Shareholder as those offered with respect to the other securities of the
Company included therein. If a registration pursuant to this Agreement involves
an underwritten offering and the managing underwriter advises the Company in
writing that, in its opinion, the number of securities requested to be included
in such registration pursuant hereto and pursuant to any other rights granted by
the Company to holders of its securities who request inclusion of any such
securities in such registration exceeds the number which can be sold in an
orderly manner in such offering, the Company shall nonetheless include in such
registration, pro rata among the respective security holders making request to
be included, the number of securities so requested to be included which in the
reasonable opinion of such underwriter can be sold.
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B. Registration Procedures. If the Company effects a public registration
of any shares held by the Shareholder, the Company shall:
1. prepare and file with the Securities and Exchange Commission (the
"SEC") or a comparable entity in a foreign jurisdiction ("Foreign Securities
Commission" or "FSC") a registration statement on the appropriate form with
respect to such shares and use its best efforts to cause such registration
statement to become effective;
2. prepare and file with the SEC or FSC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith and take such other action as may be necessary to comply with the
provisions of the applicable securities laws;
3. upon receipt of Shareholder's written request therefore, advise
Shareholder promptly (i) when any post-effective amendment to any registration
statement becomes effective and when any further amendment of or supplement to
the prospectus shall be filed with the SEC or FSC, (ii) of any request or
proposed request by the SEC or FSC for an amendment or supplement to any
registration statement, to the related prospectus, to any document incorporated
by reference in any of the foregoing or for any additional information, (iii) of
the issuance by the SEC or FSC of any stop order suspending the effectiveness of
any registration statement or any order directed to the related prospectus or
any document incorporated therein by reference or the initiation or threat of
any stop order proceeding or of any challenge to the accuracy or adequacy of any
document incorporated by reference in such prospectus, (iv) of 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 or threat of any
proceeding for the purpose and (v) of the happening of any event which makes
untrue any statement of a material fact made in any registration statement or
the related prospectus as amended or supplemented or which requires the making
of a change in such registration statement or such prospectus as amended or
supplemented in order to make any material statement therein not misleading;
4. if the SEC or FSC shall issue a stop order suspending the
effectiveness of any registration statement, make a good faith effort to obtain
the lifting of that order at the earliest possible time;
5. upon receipt of Shareholder's written request therefore, deliver
to Shareholder copies of all public reports or releases and all reports and
financial statements, if any, furnished by the Company to any securities
exchange on which the shares may be listed pursuant to requirements of or
agreements with such exchange or to the SEC or FSC pursuant to applicable
securities laws or any rule or regulation of the SEC or FSC thereunder; and
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6. use reasonable efforts to register or qualify the shares covered
by such registration statement under the securities or blue sky laws of such
jurisdictions as the Shareholder shall reasonably request considering the nature
and size of the offering, and do such other acts and things as may reasonably be
necessary to enable the Shareholder to consummate the public sale or other
disposition in each such jurisdiction of such Common Stock; provided, however,
that the Company shall not be obligated to qualify as a foreign corporation to
do business under the laws of any jurisdiction in which it has not been
qualified or to file any general consent to service of process.
C. Registration Expenses. The Company shall pay the following fees,
disbursements and expenses: all registration and filing fees, printing expenses,
auditors' fees, listing fees, registrar and transfer agent's fees, fees and
disbursements of counsel to the Company, expenses (including reasonable fees and
disbursements of counsel for the Company) of complying with applicable
securities or "Blue Sky" laws and the fees of the National Association of
Securities Dealers, Inc., if applicable, in connection with the review of such
offering. The underwriting discounts and commissions allocable to the shares
included in any offering shall be borne by the holders thereof.
D. Indemnification.
1. Upon registration of shares of Common Stock under the applicable
securities laws pursuant to this Agreement, the Company will indemnify and hold
harmless the Shareholder, its officers and directors, each underwriter (as
defined in the applicable securities laws) and each other person, if any, who
controls any of the Shareholder or any such underwriter within the meaning of
the applicable securities laws from and against any and all losses, claims,
damages and liabilities (including the fees and expenses of counsel in
connection with any governmental or regulatory investigation or proceeding),
arising out of any untrue statement or alleged untrue statement of a material
fact contained in any registration statement under which such shares were
registered, any prospectus or preliminary prospectus contained therein or any
amendment or supplement thereto (including, in each case, documents incorporated
by reference therein), or arising out of 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 such losses, claims,
damages or liabilities arise out of any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any of
the Shareholder, Shareholder's counsel or any underwriter and furnished to the
Company in writing by any of the Shareholder or such counsel or underwriter;
provided that the foregoing indemnification with respect to a preliminary
prospectus shall not inure to the benefit of any underwriter (or the benefit of
any person controlling such underwriter) from whom the person asserting any such
losses, claims, damages or liabilities purchased shares to the extent such
losses, claims, damages or liabilities result from the fact that a copy of the
final prospectus had not been sent or given to such person at or prior to
written confirmation of the sale of such shares to such person.
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2. Upon registration of shares of Common Stock under the applicable
securities laws pursuant to this Agreement, Shareholder will indemnify and hold
harmless the Company, its directors, its officers who sign the registration
statement, each underwriter and each person, if any, who controls the Company or
such underwriter within the meaning of the applicable securities laws, to the
same extent as the foregoing indemnity from the Company to the Shareholder, but
only with reference to information relating to the Shareholder and furnished to
the Company by the Shareholder for use in the registration statement, or
furnished to the Shareholder by the Company for confirmation or acceptance and
not timely refuted or corrected by Shareholder; any publicly discloseable
documents of the Shareholder published within the time frame of the registration
statement; any prospectus or preliminary prospectus contained therein or any
amendment or supplement thereto.
3. In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this section, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party has agreed to the
retention of such counsel at its expense or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party, the indemnifying party proposes that the same counsel
represent both the indemnified party and the indemnifying party and
representation of both parties by the counsel would be inappropriate due to
actual or potential differing interests between them. It is understood, where
the expense of separate counsel shall be borne by the indemnifying party
pursuant to the foregoing sentence, that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm qualified in
such jurisdiction to act as counsel for such indemnified party. Any firm
designated by the indemnifying party shall be approved as satisfactory in
writing by the Shareholder in the case of parties indemnified pursuant to
Section 4(a) and by the Company in the case of parties indemnified pursuant to
Section 4(b). The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
4. Indemnification pursuant to Section 4(a) and (b) shall be on such
other terms and conditions as are at the time customary and reasonably required
by underwriters in public offerings, including providing for contribution in the
event indemnification provided in this Section is unavailable or insufficient.
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E. Obligations of Shareholder. If the Company elects to effectuate a
public registration of any shares of Common Stock held by Shareholder,
Shareholder shall provide to the Company, in a timely fashion, any and all
information required by state and federal securities laws to be included int he
registration statement or any related documents, including any information
requested by the Company. Furthermore, Shareholder shall review any and all
materials transmitted to Shareholder by the Company concerning the registration
of Shareholder's Common Stock and Shareholder immediately shall advise the
Company in writing of any misstatement or omission, in such materials.
F. Selection of Underwriters. The Company will have the right to select
the investment banking firm(s) acting as manager(s) in connection with any
underwritten public offering.
G. Miscellaneous.
1. Company's Right to Enter into Other Registration Rights
Agreements. Shareholder understands and acknowledges the Company's right to
enter into registration rights agreements with other existing or future
shareholders or employees of the Company pursuant to such terms and conditions
as the Company, in its sole and absolute discretion, deems appropriate.
2. Remedies. Any person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law.
3. Assignment. Neither party shall have the right to assign this
Agreement without the express written consent of the non-assigning party. Any
assignment in violation of this Section 6(c) shall be null and void.
4. Governing Law. The laws of the State of Delaware (without giving
effect to the choice of law provisions thereof) shall govern the interpretation
and enforcement of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
THE XXXXXX GROUP, INC., a
Delaware corporation
__________________________________ By_____________________________
XXXXXXX XXXXX Its____________________________
