Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
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This Agreement (this "Agreement") is made and entered into as of June ,
1997, by and between Xxxxxx Industries, Inc., a Delaware corporation (the
"Company"), and each of the persons or entities executing this Agreement
(collectively referred to herein as the "Holders").
The parties hereby agree as follows:
1. Definitions.
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(a) Registerable Securities. The terms "Registerable Securities" and
"Restricted Securities" shall mean the Company's common stock, par value $.10
per share (the "Common Stock"), which is acquired by the Holders pursuant to the
terms of the Agreement and Plan of Reorganization (the Reorganization Agreement)
dated the date hereof by and among the Company, Metraplex Corporation and
Metraplex Acquisition Corp., including in each case any shares received in
connection with any stock split, stock divided, recapitalization,
reclassification or other distribution payable or issuable in shares of Common
Stock.
(b) Restricted Securities. For the purposes of this Agreement, shares will
cease to be Restricted Securities when (i) a registration statement covering
such Restricted Securities has been declared effective and they have been
disposed of pursuant to such effective registration statement, or (ii) they are
distributed to the public under the Securities Act of 1933, as amended (the
"Securities Act"), or (iii) they have been otherwise transferred and the
Company, in accordance with applicable law and regulations, has delivered new
certificates or other evidences of ownership for them not subject to any stop
transfer order or other restriction on transfer.
(c) Registerable Securities. As to any particular shares, such shares will
cease to be Registerable Securities when they cease to be Restricted Securities.
2. Demand Registration.
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(a) Right to Demand. Subject to Section 2(b) hereof, at any time after the
Effective Date of the Merger contemplated by the Reorganization Agreement, the
Initiating Holders (as defined below) may make a written request to the Company
for registration under the Securities Act of all or part of their Registerable
Securities (a "Demand Registration"). Within 10 days after receipt of such
request, the Company will deliver a written notice (the "Notice") of such
registration request to all holders of Registerable Securities. The Company will
include in such registration all Registerable Securities with respect to which
the Company has received written requests for inclusion therein within 15
business days after the receipt by the applicable holder of the Notice. All
requests made pursuant to this Section 2(a) will specify the aggregate amount of
the Registerable Securities to be registered and will also specify the intended
methods of disposition thereof.
(b) Number of Demand Registrations. The holders of Registerable Securities
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shall be entitled, in the aggregate, to one Demand Registration, the
Registration Expenses of which shall be borne by the Company. The "Initiating
Holders" with respect to this Demand Registration shall mean the holders of a
majority of the Registrable Securities. The Company shall not be deemed to have
effected a Demand Registration unless and until such Demand Registration is
declared effective.
(c) Priority on Demand Registrations. If a Demand Registration is being
underwritten and if the managing underwriter or underwriters of such Demand
Registration (or, in the case of a Demand Registration not being underwritten,
holders of a majority of the Registerable Securities sought to be registered
therein) advise the Company in writing that in their opinion the number of
securities proposed to be sold in such Demand Registration exceeds the number
which can be sold in such offering, the Company will include in such
registration only the number of securities that, in the opinion of such managing
underwriter or underwriters (or holders of Registrable Securities, as the case
may be), can be sold, selected pro rata (based on the amount of securities owned
which carry registration rights) among the holders of Registrable Securities
which have requested to be included in such Demand Registration.
(d) Selection of Underwriters. If any Demand Registration is an
underwritten offering, the Company will select a managing underwriter or
underwriters to administer the offering, which managing underwriter or
underwriters shall be reasonably satisfactory to the holders of a majority of
the Registerable Securities to be included in such Demand Registration.
(e) Notwithstanding anything in the foregoing Section 2 to the contrary,
the Company shall not be obligated to effect a Demand Registration at any time
when the Company, in the good faith judgment of its Board of Directors,
reasonably believes that the filing thereof at the time requested, or the
offering of securities pursuant thereto, would be detrimental to the interests
of Company or its shareholders, provided that notice of such determination be
given to the Initiating Holders within 30 days after written demand. The
effectuation of a Demand Registration cannot be suspended, pursuant to the
provisions of the preceding sentence, for more than 90 days after the date of
the Board's determination referenced in the preceding sentence.
3. Registration Procedures.
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The Company will, in connection with any registration pursuant to Section 2
in which sellers of Registerable Securities are included, as expeditiously as
possible:
(a) prepare and file with the Securities and Exchange Commission (the
"Commission") a registration statement on any appropriate form under the
Securities Act, which form shall be available for the sale of Registerable
Securities in accordance with the intended method or methods of distribution
thereof, and use its best efforts to cause such registration statement to become
effective; provided that at least three business days before filing with the
Commission of a registration statement or prospectus or any amendments or
supplements thereto, including documents incorporated by reference after the
initial filing of any registration statement, the Company will furnish to each
seller of Registrable Securities draft copies of such registration statement,
and, upon the request of any seller of Registerable Securities, shall continue
to provide 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
Registerable Securities owned by such seller and to change the registration
statement as it relates to such seller as requested by such seller on a timely
basis, and to reasonably consider other changes to the registration statement
(but not including any document incorporated therein by reference) reasonably
requested by such seller on a timely basis, in light of the requirements of the
Securities Act and any other applicable laws and regulations; and provided,
further, that as to documents incorporated by reference, the Company shall
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provide documents incorporated by reference promptly upon request after the
filing of such documents;
(b) prepare and file with the Commission such amendments and post-effective
amendments to a registration statement as may be necessary to keep such
registration statement effective for up to 16 months; and cause the related
prospectus to be supplemented by any required prospectus supplement, and as so
supplemented to be filed to the extent required pursuant to Rule 424 under the
Securities Act, during such 16 month period; and otherwise comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during the applicable period
in accordance with the intended methods of disposition by the sellers thereof
set forth in such registration statement or supplement to such prospectus;
(c) comply with all applicable rules and regulations of the Commission and
promptly make generally available to its security holders an earnings statement
covering a period of twelve months, (1) in an underwritten offering, commencing
at the end of any fiscal quarter in which Registerable Securities are sold to
underwriters, or (2) in a non-underwritten offering, beginning with the first
month of the Company's first fiscal quarter commencing after the effective date
of the registration statement, which earnings statement in each case shall
satisfy the provisions of Section 11(a) of the Securities Act;
(d) use its best efforts to cause all Registerable Securities to be listed,
subject to notice of issuance, by the date of the first sale of Registerable
Securities pursuant to such registration statement, on each securities exchange,
if any, on which the Company's Common Stock is then listed.
The Company may require each seller of Registerable Securities as to which
any registration is being effected to furnish to the Company such information
regarding the distribution of such securities as the Company may from time to
time reasonably request in writing.
Each Holder agrees, and each other holder of Registerable Securities will
be required, in its request to register securities pursuant to this Agreement,
to agree, that, upon receipt of any notice from the Company of the happening of
any event which causes the prospectus not to be deemed current, such holder will
forthwith discontinue disposition of Registerable Securities pursuant to the
registration statement covering such Registerable Securities until such holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 3(c)(1) hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the applicable prospectus may be resumed, and until it
has received copies of any additional or supplemental filings which are
incorporated by reference in such prospectus, and, if so directed by the
Company, such holder will deliver to the Company (at the expense of the Company)
all copies, other than permanent file copies then in such holder's possession,
of the prospectus covering such Registerable Securities current at the time of
receipt of such notice.
4. Registration Expenses.
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All expenses incident to the performance of or compliance with this
Agreement by the Company, including, without limitation, all registration and
filing fees of the Commission, the National Association of Securities Dealers
Inc. and other agencies, fees and expenses of compliance with securities or blue
sky laws (including reasonable fees and disbursements of counsel in connection
with blue sky qualifications of the Registerable Securities), rating agency
fees, printing expenses, messenger and delivery expenses, internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the fees and expenses incurred
in connection with the listing, if any, of the securities to be registered on
any securities exchange and fees and disbursements of counsel for the Company
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and the Company's independent certified public accountants (including the
expenses of any special audit or "cold comfort" letters required by or incident
to such performance), securities acts liability insurance (if the Company elects
to obtain such insurance), the fees and expenses of any special experts retained
by the company in connection with such registration, and the fees and expenses
of any other person retained by the company (but not including any underwriting
discounts or commissions attributable to the sale of Registerable Securities or
other out-of-pocket expenses of the holders of Registerable Securities (or the
agents who act on their behalf) unless reimbursement is specifically approved by
the Company) will be borne by the Company. All such expenses are herein called
"Registration Expenses".
5. Indemnification; Contribution.
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(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless, to the full extent permitted by law, each holder of Registerable
Securities, its officers and directors and each person who controls such holder
(within the meaning of the Securities Act), and any agent thereof against all
losses, claims, damages, liabilities and expenses incurred by such party
pursuant to any actual or threatened suit, action, proceeding or investigation
(including reasonable expenses of investigation) arising out of or based upon
any untrue or alleged untrue statement of a 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 (in the case of a prospectus, in the
light of the circumstances under which they were made) not misleading, except
insofar as the same arise out of or are based upon, any such untrue statement or
omission based upon information with respect to such holder furnished in writing
to the Company by such holder expressly for use therein.
(b) Indemnification by Holder of Registerable Securities. In connection
with any registration statement in which a holder of Registerable Securities is
participating, each such holder shall furnish to the Company in writing such
information with respect to such holder as the Company reasonably requests for
use in connection with any such registration statement or prospectus, and each
such holder shall agree to indemnify, to the full extent permitted by law, the
Company, the directors and officers of the Company and each person who controls
the Company (within the meaning of the Securities Act) and any agent thereof,
against any losses, claims, damages, liabilities and expenses (including
reasonable attorney's fees and expenses of investigation) incurred by such party
pursuant to any actual or threatened suit, action, proceeding or investigation
arising out of or based upon any untrue or alleged untrue statement of a
material fact or any omission or alleged omission of a material fact necessary
to make the statements therein (in the case of a prospectus, in the light of the
circumstances under which they are made) not misleading, to the extent, that
such untrue statement or omission is based upon information relating to such
holder furnished in writing to the Company expressly for use therein.
(c) Conduct of Indemnification Proceedings. Promptly after receipt by an
indemnified party of written notice of the commencement of any action,
proceeding, suit or investigation or threat thereof made in writing for which
such indemnified party may claim indemnification or contribution pursuant to
this Agreement, such indemnified party shall notify in writing the indemnifying
party of such commencement or threat; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party hereunder, (x) unless the indemnifying party is actually
prejudiced thereby or (y) otherwise than under this Section 5. In case any such
action, suit or proceeding shall be brought against any indemnified party, and
(i) the indemnified party so notifies the indemnifying party, the indemnifying
party shall be entitled to participate therein (ii) shall assume the defense
thereof, with counsel reasonably satisfactory to the indemnified party and (iii)
shall pay all expenses. The indemnified party shall have the right to employ
separate counsel in any such action, suit or proceeding and to participate in
the defense thereof, unless (i) the indemnifying party has agreed to pay such
fees and expenses, (ii) the indemnifying party failed to assume the defense of
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such action, suit or proceeding or to employ counsel reasonably satisfactory to
the indemnified party therein or to pay all expenses or (iii) the named parties
to any such action or proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and the indemnifying party
shall have been advised by counsel that there may be one or more legal defenses
available to the indemnified party which are different from or additional to
those available to the indemnifying party and which may result in a conflict
between the indemnifying party and such indemnified party (in which case, if the
indemnified party elects to employ separate counsel at the expense of the
indemnifying party and so notifies the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such action or
proceeding on behalf of the indemnified party, it being understood, however,
that the indemnifying party shall not be liable for the fees and expenses of
more than one separate firm of attorneys at any time for the indemnified party,
which firm shall be designated in writing by the indemnified party).
(d) Contribution. If the indemnification provided for in this Section 5
from the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other but also the relative fault of the indemnifying
party and indemnified party 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 or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the
limitation set forth in Section 5(e), any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(d) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in clauses (i) and (ii) of the
immediately preceding paragraph. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) Limitation. Anything to the contrary contained in this Section 5 or in
Section 6 hereof notwithstanding, no holder of Registerable Securities shall be
liable for indemnification and contribution payments aggregating an amount in
excess of the maximum amount received by such holder in connection with any sale
of Registerable Securities as contemplated herein.
6. Participation in Underwritten Registrations.
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No holder of Registerable Securities may participate in any underwritten
registration hereunder unless such holder (a) agrees to sell such holder's
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securities on the basis provided in any underwriting arrangements approved by
the persons entitled hereunder to approve such arrangements and to comply with
Rules 10b-6 and 10b-7 under the Exchange Act, and (b) completes and executes all
questionnaires, appropriate and limited powers of attorney, escrow agreements,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangement.
7. Additional Provisions.
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(a) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
without the written consent of the Company and the Holders.
(b) Notices. All communications under this Agreement shall be sufficiently
given if delivered by hand or by overnight courier or mailed by registered or
certified mail, postage prepaid, addressed,
(1) if to the Company, to:
Xxxxxx Industries, Inc.
00 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. Xxx X. Xxxxx
with a copy to:
Blau, Kramer, Wactlar & Xxxxxxxxx, P.C.
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
(2) if to the Holders,
to:
Xxxxx Xxxxxxxxx
Metraplex Corporation
0000 Xxx Xxxxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Offit & Xxxxxx, P.A.
0 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxx 00000
or, in the case of the Holders, at such other address as such Holder shall have
furnished in writing to the Company; or, in the case of the Company, at such
other address as the Company shall have furnished in writing to each Holder.
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(c) Successors and Assigns; Holders as Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the parties and their respective
successors and assigns, and the agreements of the Company herein shall inure to
the benefit of all holders of Registerable Securities and their respective
successors and assigns. Nothing in this Agreement shall be deemed to impose on
any of the Holders any obligations to or in respect of any other holder of
Registerable Securities.
(d) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Pennsylvania without regard to the
conflicts of laws principles thereof.
(g) Severability; Specific Enforcement. In the event that any one or more
of the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal, or unenforceable in any respect of any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall not be in
any way impaired thereby, it being intended that all of the rights and
privileges of the Holders, the Company and the holders of Registerable
Securities shall be enforceable to the fullest extent permitted by law. Each of
the Holders and the Company acknowledges that the other party would not have an
adequate remedy at law for money damages in the event that any of the covenants
or agreements of the other party in this Agreement were not performed in
accordance with its terms and therefore agrees that the other party shall be
entitled to specific enforcement of such covenants or agreements and to
injunctive and other equitable relief in addition to any other remedy to which
it may be entitled, at law or in equity.
(h) Entire Agreement; Survival; Termination. This Agreement is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and therein.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein and therein. This Agreement and the
Reorganization Agreement supersede all prior agreements and understandings
between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXXX INDUSTRIES, INC.
By:
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Xxxxx Xxxx, President
HOLDERS:
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