Exhibit 10.3
Registration Rights Agreement, dated June 9, 1995 by and among the
Company and Renaissance Capital Growth & Income Fund III, Inc.
The Xxxxx Group, Inc.
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Registration Rights Agreement
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into on and effective as of June 9, 1995, by and among THE XXXXX GROUP, INC., a
Delaware corporation (herein called the "Company") and Renaissance Capital
Growth & Income Fund III, Inc. (the "Fund").
W I T N E S S E T H:
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WHEREAS, the parties hereto have entered into a Stock Purchase Agreement of
even date herewith (the "Purchase Agreement"); and
WHEREAS, the Company has agreed to provide to the Fund certain registration
rights set forth herein to induce the parties hereto to enter into the Purchase
Agreement and to purchase 300,000 shares of restricted Common Stock from the
Estate of Xxxxxx X. Xxxxx, Deceased.
ACCORDINGLY, for and in consideration of the mutual promises, covenants,
representations and warranties contained herein and on the terms and conditions
set forth herein, the parties hereto do hereby agree as follows:
1. DEFINITIONS.
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1.1 Definitions.
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For purposes of this Agreement:
a. The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"Act"), and the declaration or ordering of the effectiveness of such
registration statement or document;
b. The term "Registrable Securities" means (i) the Common Stock purchased
by the Fund pursuant to the Purchase Agreement and Common Stock purchased by the
Fund pursuant to the purchase agreement by and between the Fund and the Estate
of Xxxxxx X. Xxxxx, Deceased dated June 9, 1995, (ii) any Common Stock of the
Company issued or issuable with respect to the Common Stock referred to in
clause (i) above (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued or issuable with respect to the Common
Stock referred to in clause (i) above) by way of stock dividend; any other
distribution with respect to or in exchange for, or in replacement of Common
Stock; stock split; or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization; excluding in
all cases, however, any Registrable Securities sold or transferred by a person
in a transaction in which his rights under this Agreement are not assigned;
c. The number of shares of "Registrable Securities then outstanding" shall
be an amount equal to the number of shares of Common Stock outstanding which
have been received by the Fund from the Estate of Xxxxxx X. Xxxxx, Deceased and
the Company;
d. The term "Holder" means the Fund and any assignee thereof and any person
owning or having the right to acquire Registrable Securities in accordance with
the provisions hereof; and
e. The term "Form S-3" means such form under the Act as in effect on the
date hereof or any registration form under the Act subsequently adopted by the
Securities and Exchange Commission ("SEC") which similarly permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the SEC.
f. The term "Common Stock" shall mean the common stock of The Xxxxx Group,
Inc. par value $.10.
2. SECURITIES SUBJECT TO THIS AGREEMENT
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2.1 Securities
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The securities entitled to the benefits of this Agreement are the
Registrable Securities but, with respect to any particular Registrable Security,
only if and so long as such a security continues to be a "Restricted Security."
A Registrable Security ceases to be a "Restricted Security" when (i) it has been
effectively registered under the Act and disposed of in accordance with the
registration statement covering it, (ii) it is distributed to the public
pursuant to Rule 144 (or any similar provisions that are enforced) under the
Act, or (iii) it has otherwise been transferred and a new certificate or other
evidence
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of ownership for it not bearing a restrictive legend and not subject to any stop
transfer order lawfully has been delivered by or on behalf of the Company to the
Holder along with an opinion of counsel to the Company reasonably satisfactory
to the Holder to the effect that no other restriction on transfer exists.
3. REGISTRATION RIGHTS.
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3.1 Demand for Registration.
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a. The Company hereby agrees to register, subject to the terms and
conditions set forth herein, all or any portion of the Registrable Securities if
at any time it shall receive a written request from the Holders of at least
fifty percent (50%) in the aggregate of the Registrable Securities then
outstanding that the Company file a registration statement under the Act
covering the registration of at least a majority of the Registrable Securities
then outstanding (or a lesser percent if the anticipated aggregate offering
price, net of underwriting discounts and commissions, would exceed $500,000).
The Company shall, within twenty (20) days of its receipt thereof, give written
notice of such request to all Holders of record of Registrable Securities at the
last known address of each such Holder maintained by the Company or the
Company's transfer agent. The Holders of said Registrable Securities shall have
fifteen (15) days from the receipt of such notice by the Company to request that
all or a portion of their respective Registrable Securities be included in said
registration. The Company hereby agrees, subject to the limitations hereof, to
use its best lawful efforts to effect as soon as reasonably possible, and in any
event (if legally possible, and as allowed by the SEC, and if no factor outside
the Company's reasonable control prevents it) within 150 days of the receipt of
the initial written registration request, to effect the registration under the
Act of all Registrable Securities which the Holders thereof have requested.
b. If the Holders initiating the registration request hereunder
("Initiating Holders") intend to distribute the Registrable Securities covered
by their request by means of an underwriting, they shall so advise the Company
as a part of their request made pursuant to this Agreement, and the Company
shall include such information in the written notice to the other Holders of
Registrable Securities referred to in Section 3.1(a). In such event, the right
of any Holder to include his/her Registrable Securities in such registration
shall be conditioned upon such Holder's participation in such underwriting and
the inclusion of such Holder's Registrable Securities in the underwriting
(unless otherwise mutually agreed by the Company, the underwriter, a majority in
interest of the Initiating Holders and such Holder) is limited to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall (together with the Company as provided in Section
3.3(e)) enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by mutual agreement
of the Company and a majority in interest of the Initiating Holders, which
agreement shall not be unreasonably withheld.
c. Notwithstanding any provision to the contrary set forth herein, the
parties hereto hereby acknowledge and agree that the Company is obligated to
effect only two (2) such registrations pursuant to this Section 3.1.
d. Notwithstanding the foregoing, if the Company shall furnish to the
Initiating Holders a certificate signed by the President of the Company stating
that the good faith judgment of the Board of Directors of the Company, it would
be materially detrimental to the Company and its shareholders for such
registration statement to be filed at that time, and it is therefore essential
to defer the filing of such registration statement, the Company shall have the
right to defer the commencement of such a filing for a period of not more than
180 days after receipt of the request of the Initiating Holders; provided,
however, that at least twelve (12) months must elapse between any two such
deferrals under this Section 3.1(d).
3.2 "Piggy-Back" Registration.
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If, but without any obligation to do so, the Company from time to time
proposes to register any of its capital stock or other securities under the Act
in connection with the public offering of such securities for its own account or
for the account of its security holders, other than Holders of Registrable
Securities pursuant to Section 3.1 (a "Piggy-Back Registration Statement"),
primarily for cash (other than (i) a registration relating solely to the sale of
securities to participants in a Company stock plan or employee benefit plan,
(ii) a registration relating solely to an SEC Rule 145 transaction or any rule
adopted by the SEC in substitution thereof or in amendment thereto, or (iii) a
registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities, the Holders of Registrable
Securities shall be entitled to include all or any portion of their Registrable
Securities in such registration (and related underwritten offering, if any) on
the following terms and conditions:
a. The Company shall give written notice of such determination to each
Holder of Registrable Securities, and each such Holder shall have the right to
request, by written notice given to the Company within fifteen (15) days of the
date that such written notice was given by the Company to such Holder, that a
specific number of Registrable Securities held by such Holder will be included
in the Piggy-Back Registration Statement (and related underwritten offering, if
any);
b. If the Piggy-Back Registration Statement relates to an underwritten
offering, the notice given to each Holder shall specify the name or names of the
managing underwriter or underwriters for such offering. In addition such notice
shall also specify the number of securities to be registered for the account of
the Company and for the account of its shareholders
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(other than the Holders of Registrable Securities), if any;
c. If the Piggy-Back Registration Statement relates to an underwritten
offering, each Holder of Registrable Securities to be included therein must
agree (x) to sell such Holder's Registrable Securities on the same basis as
provided in the underwriting arrangement approved by the Company, and (y) to
timely complete and execute all questionnaires, powers of attorney, indemnities,
hold-back agreements, underwriting agreements and other documents required under
the terms of such underwriting arrangements or by the SEC or by any state
securities regulatory body;
d. If the managing underwriter or underwriters for the underwritten
offering under the Piggy-Back Registration Statement determines that inclusion
of all or any portion of the Registrable Securities in such offering would
adversely affect the ability of the underwriters for such offering to sell all
of the securities requested to be included for sale in such offering at the best
price obtainable therefor, the aggregate number of Registrable Securities that
may be sold by the Holders shall be limited to such number of Registrable
Securities, if any, that the managing underwriter or underwriters determine may
be included therein without such adverse effect as provided below. If the number
of securities proposed to be sold in such underwritten offering exceeds the
number of securities that may be sold in such offering, there shall be included
in the offering, first, up to the maximum number of securities to be sold by
the Company for its own account and second, as to the balance, if any,
securities to be sold for the account of the Company's stockholders (both the
Holders of Registrable Securities requested and such other stockholders of the
Company requested to be included therein) on a pro rata basis;
e. Holders of Registrable Securities shall have the right to withdraw their
Registrable Securities from the Piggy-Back Registration Statement, but if the
same relates to an underwritten offer, they may only do so during the time
period and on the terms agreed upon among the underwriters for such underwritten
offering and the Holders of Registrable Securities.
3.3 Obligations of the Company.
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Whenever required under this Section 3 to effect the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
a. Prepare and file with the SEC a registration statement with respect to
such Registrable Securities and use its best lawful efforts to cause such
registration statement to become effective, and keep such registration statement
effective until all such Registrable Securities have been distributed, and or
until one hundred twenty (120) days have elapsed since such registration
statement became effective (subject to extension of this period as provided
below);
b. Prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement, or until one hundred twenty (120) days have elapsed
since such registration statement became effective (subject to the extension of
this period as provided below);
c. Furnish to the Holders such numbers of copies of a prospectus, including
a preliminary prospectus, in conformity with the requirements of the Act, and
such other documents as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them;
d. Use its best lawful efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify as a broker-dealer in any states or jurisdictions
or to do business or to file a general consent to service of process in any such
states or jurisdictions;
e. In the event of any underwritten public offering, enter into and perform
its obligations under an underwriting agreement with the managing underwriter of
such offering, in usual and customary form reasonably satisfactory to the
Company and the Holders of a majority of the Registrable Securities to be
included in such offering. Each Holder participating in such underwriting shall
also enter into and perform its obligations under such an agreement;
f. Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto and
covered by such registration statement is required to be delivered under the
Act, of the happening of any event as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing; and
g. In the event of the notification provided for in Section 3.3(f) above,
the Company shall use its best efforts to prepare and file with the SEC (and to
provide copies thereof to the Holders) as soon as reasonably possible an amended
prospectus complying with the Act, and the period during which the prospectus
referred to in the notice provided for in Section 3.3(f) above cannot be used
and the time period prior to the use of the amended prospectus referred to in
this Section 3.3(g), shall not be counted in the 120 day period of this Section
3.3.
3.4 Furnish Information.
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a. It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Section 3 that the selling Holders shall
furnish to the Company any and all information reasonably requested by the
Company, its
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officers, directors, employees, agents or representatives, the underwriter or
underwriters, if any, and the SEC or any other governmental regulatory agency,
including but not limited to (i) such information regarding themselves, the
Registrable Securities held by them, and the intended method of disposition of
such securities, as shall be required to effect the registration of their
Registrable Securities, and (ii) the identity of and compensation to be paid to
any proposed underwriter to be employed in connection therewith.
b. In connection with the preparation of filing of each registration
statement registering Registrable Securities under the Act, the Company shall
give the Holders of Registrable Securities on whose behalf such Registrable
Securities are to be registered and their underwriters, if any, and their
respective counsel and accountants, at such Holder's sole cost and expense
(except as otherwise set forth herein), such access to copies of the Company's
records and documents and such opportunities to discuss the business of the
Company with its officers and the independent public accountants who have
certified its financial statements as shall be reasonably necessary in the
opinion of such Holders and such underwriters or their respective counsel, to
conduct a reasonable investigation within the meaning of the Act.
3.5 Expenses of Demand Registration.
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Expenses incurred in connection with any registration or qualification of any
shares including all registration, filing and qualification fees, printing
expenses, legal expenses and expenses of any special audits incidental to or
required by such registration, shall be borne by the Fund.
3.6 Expenses of Piggy-Back Registration.
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Each Holder shall bear and pay all those incremental expenses attributable
to the inclusion of such Holder's Registrable Securities in any registration,
filing or qualification of Registrable Securities pursuant to Section 3.2
including, without limitation, such Holder's incremental portion of all
reasonable registration, filing, and qualification fees, printers' and
accounting fees, fees and disbursements of counsel of the Company, and the
reasonable fees and disbursements of one counsel for the selling Holders, but
excluding the Company's overhead expenses and expenses related to the use of
time by the Company's officers, directors and employees in effecting such
registrations. In addition, the selling Holders shall bear the expenses of any
underwriting discounts and commissions, if any, attributable to the sale of
their shares of Common Stock in connection with such Piggy-Back Registrations.
3.7 Indemnification.
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In the event that any Registrable Securities are included in a registration
statement under this Section 3:
a. To the extent permitted by law, the Company will indemnify and hold
harmless each Holder, the officers and directors of each Holder, any underwriter
(as defined in the Act) for such Holder and each person, if any, who controls
such Holder or underwriter within the meaning of the Act or the Securities
Exchange Act of 1934, as amended (the "1934 Act"), against any losses, claims,
damages, liabilities (joint or several) or any legal or other costs and expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage or liability, or action to which they may become
subject under the Act, the 1934 Act or other federal or state law, insofar as
such losses, claims, damages, costs, expenses or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation"): (i) any untrue statement
or alleged untrue statement of a material fact with respect to the Company or
its securities contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements therein, (ii) the omission or alleged omission to state therein a
material fact with respect to the Company or its securities required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Act, the 1934
Act, any federal or state securities law or any rule or regulation promulgated
under the Act, the 1934 Act or any state securities law. Notwithstanding the
foregoing, the indemnity agreement contained in this Section 3.7(a) shall not
apply and the Company shall not be liable (i) in any such case for any such
loss, claim, damage, costs, expenses, liability, or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by any such Holder, underwriter or controlling person, or
(ii) for amounts paid in settlement of any such loss, claim, damage, liability,
or action if such settlement is effected without the prior written consent of
the Company, which consent shall not be unreasonably withheld.
b. To the extent permitted by law, each Holder who participates in a
registration pursuant to the terms and conditions of this Agreement shall
indemnify and hold harmless the Company, each of its directors and officers who
have signed the registration statement, each person, if any, who controls the
Company within the meaning of the Act, each of the Company's employees, agents
and representatives, any underwriter and any other Holder selling securities in
such registration statement or any of its directors or officers, or any person
who controls such Holder, against any losses, claims, damages, costs, expenses,
liabilities (joint or several) to which the Company or any such director,
officer, controlling person, employee, agent, representative, or underwriter, or
controlling person or other such Holder or director or officer thereof or of
said controlling person may become subject, under the Act, the 1934 Act or other
federal or state law, only insofar as such losses,
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claims, damages, costs, expenses or liabilities or actions in respect thereto
arise out of or are based upon any Violation, in each case to the extent and
only to the extent that such violation occurs in reliance upon and in conformity
with written information furnished by such Holder expressly for use in
connection with such registration; and each such Holder will reimburse any legal
or other expenses reasonably incurred by the Company or any such director,
officer, employee, representative, controlling person, underwriter or
controlling person, other Holder, officer or director thereof or of any
controlling person in connection with investigating or defending any such loss,
claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this Section 3.7(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, costs, expenses, liability or action
if such settlement is effected without the prior written consent of the Holder,
which consent shall not be unreasonably withheld.
c. Promptly after receipt by an indemnified party under this Section 3.7 of
notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 3.7, deliver to the indemnifying party
a written notice of the commencement thereof and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the reasonable fees and expenses to be paid by the indemnifying
party, if representations of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action shall not relieve the indemnifying party of its obligations
under this Section 3.7, except to the extent that the failure results in a
failure of actual notice to the indemnifying party and such indemnifying party
is materially prejudiced in its ability to defend such action solely as a result
of the failure to give such notice.
d. If the indemnification provided for in this Section 3.7 is unavailable
to an indemnified party under this Section in respect of any losses, claims,
damages, costs, expenses, liabilities or actions referred to herein, then each
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, costs, expenses, liabilities or actions in such
proportion as is appropriate to reflect the relative fault of the Company on the
one hand and of the Holder on the other in connection with the Violation that
resulted in such losses, claims, damages, costs, expenses, liabilities or
actions. The relative fault of the Company on the one hand and of the Holder on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of the material fact or the omission to state
a material fact relates to information supplied by the Company, or material fact
relates to information supplied by the Company, or by the Holder, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company on the one hand and the Holders on the other hand agree that it
would not be just and equitable if contribution pursuant to this Section 3.7
were determined by a pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of losses, claims, damages, costs, expenses, liabilities and
actions referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any reasonable legal or
other expenses incurred by such indemnified party in connection with defending
any such action or claim. Notwithstanding the provisions of this Section 3.7,
neither the Company nor the Holders shall be required to contribute any amount
in excess of the amount by which the total price in which the securities were
offered to the public exceeds the amount of any damages which the Company or
each such Holder as otherwise been required to pay by reason of such Violation.
No person guilty of fraudulent misrepresentations (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation.
3.8 Reports Under Securities Exchange Act of 1934.
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With a view to making available to the Holders the benefits of Rule 144
promulgated under the Act and any other rule or regulation of the SEC that may
at any time permit a Holder to sell securities of the Company to the public
without registration or pursuant to a registration on Form S-3, if applicable,
the Company agrees to use its best lawful efforts to:
a. Make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times;
b. Take such action, including the voluntary registration of its Common
Stock under Section 12 of the 1934 Act, as is necessary to enable the Holders to
trade their Registrable Securities on a public market;
c. When and if applicable, file with the SEC in a timely manner all reports
and other documents required of the Company under the Act and the 1934 Act;
d. Use its best efforts to list all Common Stock covered by such
registration statement on such securities exchange on which any of the Common
Stock is then listed, or, if the Company's Common Stock is not then quoted on
NASDAQ or
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listed on any national securities exchange, use its best efforts to have such
Common Stock covered by such registration statement quoted on NASDAQ or, at the
option of the Company, listed on a national securities exchange; and
e. Furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company, if
true, that it has complied with the reporting requirements of SEC Rule 144, the
Act and the 1934 Act (at any time after it has become subject to such reporting
requirements), or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of
the most recent annual or quarterly report of the Company and such other SEC
reports and documents so filed by the Company, and (iii) such other information
(but not any opinion of counsel) as may be reasonably requested by any Holder
seeking to avail himself of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
3.9 Assignment of Registration Rights.
--------------------------------------
Subject to the terms and conditions of the Purchase Agreement and the
Common Stock the right to cause the Company to register Registrable Securities
pursuant to this Section 3 may be assigned by the Fund to any transferee or
assignee of such securities; provided that said transferee or assignee is a
transferee or assignee of at least ten percent (10%) of the Registrable
Securities, and provided that the Company is, within a reasonable time after
such transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Act; it being the intention that so long as the Fund holds
any Registrable Securities hereunder, either the Fund or its transferee or
assignee may exercise the demand rights to registration and piggy-back
registration rights hereunder. Other than as set forth above, the parties hereto
hereby agree that the registration rights hereunder shall not be transferable or
assigned and any contemplated transfer or assignment in contravention of this
Agreement shall be deemed null and void and of no effect whatsoever.
3.10 Other Matters.
-------------------
a. Each Holder of Registrable Securities hereby agrees by acquisition of
such Registrable Securities that, with respect to each offering of the
Registrable Securities, whether each Holder is offering such Registrable
Securities in an underwritten or non-underwritten offering, such Holder will
comply with Rules 10b-2, 10b-6 and 10b-7 of the 1934 Act and such other or
additional anti-manipulation rules then in effect until such offering has been
completed, and in respect of any non-underwritten offering, in writing will
inform the Company, any other holders who are selling shareholders, and any
national securities exchange upon which the securities of the Company are
listed, that the Registrable Securities have been sold and will, upon the
Company's request, furnish the distribution list of the Registrable Securities.
In addition, upon the request of the Company, each Holder will supply the
Company with such documents and information as the Company may reasonably
request with respect to the subject matter set forth and described in this
Section 3.10.
b. Each Holder of Registrable Securities hereby agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company of
the happening of any event which makes any statement made in the registration
statement, the prospectus or any document incorporated therein by reference,
untrue in any material respect or which requires the making of any changes in
the registration statement, the prospectus or any document incorporated therein
by reference, in order to make the statements therein not misleading in any
material respect, such Holder will forthwith discontinue disposition of
Registrable Securities under the prospectus related to the applicable
registration statement until such Holder's receipt of the copies of the
supplemented or amended prospectus, or until it is advised in writing by the
Company that the use of the prospectus may be resumed, and has received copies
of any additional or supplemental filings which are incorporated by reference in
the prospectus.
c. The Company hereby agrees not to effect any public sale or other
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such equity securities, during the period
commencing on the seventh day prior to, and ending on the one hundred twentieth
day (subject to extension as provided in Section 3.3 hereof) following the
effective date of any underwritten demand registration or piggy-back
registration (except in connection with any piggy-back registration).
3.11 Termination of Rights.
---------------------------
a The rights to request a demand registration or repurchase of Registrable
Securities, as granted to Holders under this Section 3, shall terminate on June
1, 2004, or after the Fund has exercised two demand registration rights at its
own expense as provided in this Section 3, whichever is first to occur.
b The rights to participate in a piggy-back registration, as granted to
Holders under this Section 3, shall be exercisable by the Fund until June 1,
2004.
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4. Miscellaneous
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4.1 Successors and Assigns.
---------------------------
Subject to the terms and conditions of this Agreement, the rights and
obligations set forth herein shall inure to the benefit of and be binding upon
the respective successor and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by this Agreement. The rights and powers of
the Fund are granted to such the Fund as an owner of the Registrable Securities.
Consequently, and subject to Section 3.9, the parties agree that such rights
and powers exist separately and distinctly with respect to each share of the
Registrable Securities and as to each such share, unless otherwise specified in
this Agreement, shall pass with it so that any owner of any of the Registrable
Securities, whether becoming such by transfer, assignment, operation of law or
otherwise, shall have all of the rights and powers of the Fund hereunder, and
shall be entitled to exercise them in full, with or without the agreement or
consent of other such owners, and no transfer or assignment shall divest the
Fund or any subsequent owner of such rights and powers unless all shares of
Registrable Securities owned by such the Fund are transferred or assigned.
4.2 Notices.
------------
Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effective upon personal
delivery to the party to be notified, telefax or telecopy communication when
confirmed in writing on the same day, or three (3) days after deposit with the
United States mail, by registered or certified mail, postage prepaid and
addressed to the party to be notified at the address indicated for such party on
the signature page hereof, or at such other address as such party may designate
by advance written notice to the other parties.
4.3 Amendments and Waivers.
---------------------------
Any term of this Agreement may be amended and the observance of any term of
this Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively), only with the written consent of the
Company and the holders of a majority of the Registrable Securities. Any
amendment or waiver effected in accordance with this paragraph shall be binding
upon each holder of any Registrable Securities at the time outstanding, each
future holder of all such securities, and the Company.
4.4 Enforcement.
----------------
In the event of a material breach by the Company or by the Fund hereunder,
each right, power or remedy of the Holder and the Company hereof as provided for
in this Agreement, the Debenture, or the Purchase Agreement, or now or hereafter
existing at law or in equity or by statute shall be cumulative and concurrent
and shall be in addition to every other right, power or remedy and the exercise
or beginning of the exercise by the Holder or transferee hereof of any one or
more of such rights, powers or remedies shall not preclude the simultaneous or
later exercise by the Holder of any or all such other rights, powers or
remedies. The Holders will be entitled to enforce their rights under this
Agreement specifically (without posting a bond or other security), to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all of their rights existing in their favor. The parties hereto hereby
agree and acknowledge that money damages may not be an adequate remedy for any
breach of the provisions of this Agreement by the Company, and that Holder may
in its sole discretion apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief in order to
enforce or prevent any violation of the provisions of this Agreement. In
addition, upon the occurrence of a material breach by the Company or by the
Holder, the breaching party agrees to pay and shall pay all costs and expenses
(including prevailing party's attorneys' fees and expenses) reasonably incurred
in connection with the preservation and enforcement of such party's rights
hereunder.
4.5 Titles, Subtitles and Table of Contents.
--------------------------------------------
The titles, subtitles and table of contents used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting
this Agreement.
4.6 Severability.
-----------------
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement and
the balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
4.7 Entire Agreement.
---------------------
Except as otherwise expressly set forth herein, this Agreement embodies the
complete agreement and understanding among the parties hereto with respect to
the subject matter hereof and thereof and supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
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4.8 Counterparts.
-----------------
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall continue one and
the same instrument.
4.9 GOVERNING LAW.
------------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE
STATE OF TEXAS EXCEPT INSOFAR AS AND TO THE EXTENT THAT THE LAWS OF THE UNITED
STATES OF AMERICA SHALL HAVE APPLICATION.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Company
-------
The Xxxxx Group, Inc.
By: _____________________________________
Its:
The Fund
--------
Renaissance Capital Growth & Income Fund III, Inc.
By: _____________________________________
Xxxxxxx Xxxxxxxxx
President
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