Exhibit 4.2
FORM OF REGISTRATION AGREEMENT
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THIS REGISTRATION AGREEMENT (this "Agreement") is made as of _________ ___,
199___, between The Xxxxxxx Group, Inc., a Delaware corporation (the "Company"),
and the individual identified on the signature page hereto ("Holder").
WHEREAS, the parties to this Agreement are parties to a Stock Exchange
Agreement dated as of _______ __, 199___ (the "Exchange Agreement"), pursuant to
which __________ ("XXX") will become a wholly-owned subsidiary of the Company
and in connection therewith the Company shall issue shares of Common Stock (as
defined below) to Holder. In order to induce the Holder to enter into the
Exchange Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement. Unless otherwise provided in this Agreement,
capitalized terms used herein shall have the meanings set forth in paragraph 8
hereof.
NOW, THEREFORE, the parties hereto agree as follows:
1. Piggyback Registrations.
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(a) Right to Piggyback. If, at any time during which any Registrable
Stock remains outstanding, the Company proposes to register any of its Common
Stock under the Securities Act in an underwritten public offering, other than
pursuant to a registration on Form S-8 or Form S-4, or any similar forms then in
effect (a "Piggyback Registration"), the Company will give prompt written notice
to the Holder of its intention to effect such a registration and will, subject
to paragraphs 2(c) and 2(d), include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 days after the receipt of the Company's notice, not
to exceed a maximum number of shares for the Holder equal to the product
obtained when the Holder's pre-registration holdings of Registrable Securities
are multiplied by a fraction, the numerator of which is the total number of
shares proposed to be sold in the Piggyback Registration by all other selling
shareholders and the denominator of which is the total pre-transaction
shareholdings of all other selling shareholders.
(b) Piggyback Expenses. The Registration Expenses of the Holder will
be paid by the Company in all Piggyback Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration
includes primary shares to be sold on behalf of the Company, and the managing
underwriter or underwriters advise the Company that in their opinion the number
of securities requested to be included in such registration exceeds the number
which can be sold in such offering without materially adversely affecting the
marketability of the offering, the Company will include in such registration,
(i) first, the securities the Company proposes to sell; (ii) second, the
securities requested to be included in such registration by the holders having
priority registration commitments entered into by the Company prior to the date
hereof ("Priority Holders"); and (iii) third, the Registrable Securities
requested to be included in such registration and all other Common Stock
requested to be included in such registration (the "Other Common Stock"), to be
included pro rata on the basis of the number of shares of such securities for
which the Company has been given written requests for inclusion therein by each
such holder thereof. Notwithstanding the foregoing, the Company shall use all
commercially reasonable efforts to include, but shall not be obligated to
include, any Registrable Securities in any registered offering contemplated by
the Company's registration statement on Form S-3 (File No. 333-40489),
regardless of when such offering occurs.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities not including primary shares, 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 which can be sold in such
offering without adversely affecting the marketability of the offering, the
Company will include in such registration (i) first, the securities requested to
be included therein by the holders requesting such registration and the
securities requested to be
included by any other Priority Holder, and (ii) second, the Registrable
Securities requested to be included in such registration and all Other
Common Stock requested to be included in such registration, to be included
pro rata on the basis of the number of shares of such securities for which
the Company has been given written requests for inclusion therein by each
such holder thereof. Notwithstanding the foregoing, the Company shall use
all commercially reasonable efforts to include, but shall not be obligated
to include, any Registrable Securities in any registered offering
contemplated by the Company's registration statement on Form S-3 (File No.
333-40489), as the same may be amended, regardless of when such offering
occurs.
(e) Exchange Agreement Compliance. Notwithstanding any provision of
this Agreement to the contrary, the Company's obligation to include
Registrable Securities in any Piggyback Registration are expressly
conditioned upon there being no uncured breach of any of the
representations, warranties or covenants made by the Holder or XXX in the
Exchange Agreement, and the Company will not be obligated to include any
Registrable Securities in any registration at any time after which any such
breach has occurred and has not been cured, paid and/or otherwise
appropriately resolved in accordance with the Exchange Agreement.
2. Holdback Agreements. The Holder of Registrable Securities agrees not
to effect any public sale or distribution (including sales pursuant to Rule 144)
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-day period beginning on the effective date of any Piggyback
Registration in which Registrable Securities are included (except as part of
such underwritten registration), unless the underwriters managing the registered
public offering otherwise agree.
3. Registration Procedures. The Company will use all commercially
reasonable efforts to effect the registration and the sale of such Registrable
Securities in accordance with the provisions of this Agreement, and pursuant
thereto the Company will, as expeditiously as possible but subject to the terms
hereof:
(a) prepare and file with the Securities and Exchange Commission a
Registration Statement with respect to such Registrable Securities on such
appropriate and legally available form as the Company in its discretion
shall elect (the "Registration Statement") and use all commercially
reasonable efforts to cause such Registration Statement to become
effective;
(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 (the "Prospectus") as may be
necessary to keep such Registration Statement effective for a period of not
less than six months from the Closing Date and comply with the provisions
of the Securities Act with respect to the disposition of all securities
covered by such Registration Statement during such period;
(c) furnish each seller of Registrable Securities such number of
copies of such Registration Statement, each amendment and supplement
thereto, 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 all commercially reasonable efforts to register or qualify
such Registrable Securities under the securities or blue sky laws of such
states and the District of Columbia as any seller of Registrable Securities
reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such states and the District of Columbia of the Registrable
Securities owned by Holder (provided that the Company will not be required
to (i) qualify generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this subparagraph (d), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction);
(e) notify each seller of such Registrable Securities of the
happening of any event of which the Company becomes aware, 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
statements therein not
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misleading, and the Company will prepare a supplement or amendment to the
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 statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are
then listed and, if not so listed, to be listed on the Nasdaq National
Market;
(g) otherwise use all commercially reasonable efforts to comply with
all applicable rules and regulations of the Securities and Exchange
Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at
least twelve months beginning with the first day of the Company's first
full calendar quarter after the effective date of the Registration
Statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder; and
(h) in the event of the issuance of any stop order suspending the
effectiveness of a Registration Statement, or of any order suspending or
preventing the use of any related prospectus or suspending the
qualification of any common stock included in such Registration Statement
for sale in any jurisdiction, the Company will use all commercially
reasonable efforts promptly to obtain the withdrawal of such order.
4. Holder Procedures.
(a) In connection with any Registration Statement, the Company may
require the Holder to furnish to the Company such information regarding the
Holder and his or her proposed distribution of Registrable Securities, to
the extent necessary to comply with the Securities Act, as the Company may
from time to time reasonably request in writing.
(b) The Holder agrees to cooperate with the Company in all reasonable
respects in connection with the preparation and filing of each Registration
Statement and any amendment thereof, any Prospectus relating thereto and
any Prospectus supplement relating thereto with respect to the offer and
sale of Registrable Securities of the Holder.
5. Registration Expenses.
(a) 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, listing
fees, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified
public accountants, and other Persons retained by the Company (all such
expenses being herein called "Registration Expenses"), will be borne by the
Company; provided, that Registration Expenses shall not include, and the
Holder shall pay, all underwriting discounts and commissions applicable to
Registrable Securities sold by them pursuant to this Agreement and all
legal fees and expenses of counsel retained by the Holder.
(b) To the extent Registration Expenses are not required to be paid
by the Company pursuant to paragraph 5(a), the Holder will pay those
Registration Expenses allocable to the registration of the Holder's
securities so included, and any Registration Expenses not so allocable will
be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so
registered.
6. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless, to the fullest
extent permitted by law, the Holder against all losses, claims, damages,
liabilities and expenses (including reasonable fees and legal expenses)
resulting from any untrue or alleged untrue statement of a material fact
contained in the
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Registration Statement, any Prospectus, or any amendment or supplement thereto,
or any omission or alleged omission of a 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, except in each case
insofar as the same arises out of or is based upon an untrue statement or
alleged untrue statement of a material fact or an omission or alleged omission
to state a material fact in such Registration Statement, Prospectus, amendment
or supplement, as the case may be, made or omitted, as the case may be, in
reliance upon and in conformity with information furnished to the Company by the
Holder for use therein or by the Holder's failure to deliver a copy of the
Registration Statement or Prospectus or any amendments or supplements thereto
after the Company has furnished Holder with a sufficient number of copies of the
same.
(b) The Holder, if he participates in any Registration Statement, shall
indemnify and hold harmless, to the fullest extent permitted by law, the
Company, its officers, directors, employees, representatives and agents, and
each Person who controls (within the meaning of the Securities Act) the Company,
against all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and legal expenses) resulting from any untrue
or alleged untrue statement of a material fact contained in any Registration
Statement, any Prospectus, or any amendment or supplement thereto, and any
omission or alleged omission of a 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, to the extent the same arises out of or is
based upon any untrue statement or alleged untrue statement of a material fact
or any omission or alleged omission to state a material fact in such
Registration Statement, Prospectus, amendment or supplement, as the case may be,
made or omitted, as the case may be, in reliance upon and in conformity with
information furnished to the Company by Holder for use therein.
(c) Each party entitled to indemnification under this paragraph 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, that counsel for the Indemnifying
Party, who will conduct the defense of such claim or litigation, is approved by
the Indemnified Party (whose approval will not be unreasonably withheld or
delayed); and provided, further, that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of its
obligations except to the extent that its defense of the claim or litigation
involved is prejudiced by such failure. The Indemnified Party may participate in
such defense at such Indemnified party's expense. No Indemnifying Party, in the
defense of any such claim or litigation, except with the prior consent of each
Indemnified Party, shall consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of any claim or litigation, and no Indemnified Party will
consent to entry of any judgment or settle any claim or litigation without the
prior written consent of the Indemnifying Party. Each Indemnified Party shall
furnish such information regarding himself, herself or itself and the claim in
question as the Indemnifying Party may reasonably request and as shall be
reasonably required in connection with the defense of such claim and litigation
resulting therefrom.
(d) If for any reason the indemnification provided for in this paragraph 6
from an Indemnifying Party, although otherwise applicable by its terms, is
determined by a court of competent jurisdiction to be unavailable to an
Indemnified Party hereunder, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by the Indemnified Parties as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of such Indemnifying Party and the Indemnified Parties in
connection with the actions that 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 the 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 the 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
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above shall be deemed to include, subject to the limitations set forth in
paragraph 6(c), any legal or other fees or expenses reasonably incurred by such
party in connection with any investigation or proceeding.
7. Participation in Underwritten Registrations. No Person may participate
in any registration hereunder which is underwritten unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Company and other Person or Persons
entitled hereunder to approve such arrangements and (b) completes and executes
all questionnaires, powers of attorney, share custody agreements, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
8. Definitions.
"Common Stock" means the Company's Common Stock, par value $0.001 per
share.
"Person" means any natural person and any corporation, partnership,
limited liability company or other business entity.
"Registrable Securities" means (i) the Payment Shares (as defined in
the Exchange Agreement) issued to the Holder pursuant to the Exchange Agreement,
and (ii) any Common Stock or other equity securities issued or issuable with
respect to the securities referred to in clause (i) by way of a stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. As to any particular Registrable
Securities, such securities will cease to be Registrable Securities (A) when
they have been distributed to the public pursuant to a offering registered under
the Securities Act or (B) one year after the Registrable Securities held by the
Holder first become eligible for sale pursuant to Rule 144 under the Securities
Act (or any similar rule then in force).
"Securities Act" means the Securities Act of 1933, as amended.
9. Miscellaneous.
(a) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of at least a majority of the
Registrable Securities.
(b) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and permitted assigns.
(c) Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
(d) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will constitute
one and the same agreement.
(e) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(f) Governing Law. The corporate law of Delaware will govern all
issues concerning the relative rights of the Company and its stockholders. All
other questions concerning the construction, validity and interpretation of this
Agreement and the exhibits and schedules hereto will be governed by the internal
law, and not the law of conflicts, of Illinois.
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(i) Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given (i) three (3)
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid; (ii) one day after receipt is electronically
confirmed, if sent by fax (provided that a hard copy shall be promptly sent by
first class mail); or (iii) one (1) business day following deposit with a
recognized national overnight courier service for next day delivery charges
prepaid, and, in each case, addressed to the intended recipient as set forth
below:
If to Xxxxxxx: With a copy to:
The Xxxxxxx Group, Inc. Xxxxxxxx & Xxxxxx, Ltd.
000 Xxxx Xxxx Xxxx 30 South Xxxxxx Drive
Suite 500 Suite 2900
Xxxxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attn: General Counsel Attn: _____________
Fax: 847/000-0000 Fax: 312/000-0000
If to the Holder: With a copy to:
To his address ____________________________________
set forth on the signature ____________________________________
page hereto ____________________________________
____________________________________
Attn:_______________________________
Fax: _______________________________
Any party may give any notice, request, demand, claim, or other communication
hereunder using any other means (including personal delivery, expedited courier,
messenger service, telecopy, telex, ordinary mail, or electronic mail), but no
such notice, request, demand, claim, or other communication shall be deemed to
have been duly given unless and until it actually is delivered to the individual
for whom it is intended. Any party may change the address to which notices,
requests, demands, claims, and other communications hereunder are to be
delivered by giving the other Parties notice in the manner herein set forth.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
THE COMPANY:
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THE XXXXXXX GROUP, INC.
By:
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Name:
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Title:
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HOLDER:
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Address:
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