Exhibit 10.19
REGISTRATION RIGHTS AGREEMENT
This Agreement dated as of December 22, 1999, is entered into by and
among Semele Group Inc., a Delaware corporation (the "Company"), and the persons
listed on Exhibit A hereto (the "Sellers").
WHEREAS, the Company and the Sellers have entered into a Stock Purchase
Agreement (the "Purchase Agreement") and a Put and Call Agreement ("Put and Call
Agreement"), each dated the date hereof;
WHEREAS, the Company and the Sellers desire to provide for certain
arrangements with respect to the registration of shares of capital stock of the
Company under the Securities Act of 1933, as amended, as set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"COMMISSION" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the Securities Act.
"COMMON STOCK" means the Common Stock, $.10 par value, of the Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"REGISTRATION STATEMENT" means a registration statement filed by the
Company with the Commission for a public offering and sale of securities of the
Company (other than a registration statement on Form S-8 or Form S-4, or their
successors, or any registration statement covering only securities proposed to
be issued in exchange for securities or assets of another corporation).
"REGISTRATION EXPENSES" means the expenses described in Section 5.
"REGISTRABLE SHARES" means (i) the Shares, (ii) any other shares of
Common Stock of the Company issued in respect of the Shares (because of stock
splits, stock dividends, reclassifications, recapitalizations or similar
events); provided, however, that shares of Common Stock which are Registrable
Shares shall cease to be Registrable Shares upon any sale pursuant to a
Registration Statement or Rule 144 under the
Securities Act, or any sale in any manner to a person or entity which, by virtue
of Section 12 of this Agreement, is not entitled to the rights provided by this
Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission issued
under such Act, as they each may, from time to time, be in effect.
"SHARES" means the 510,000 shares of Common Stock of the Company that
may be acquired by the Sellers pursuant to the Put and Call Agreement plus all
other shares of Common Stock, if any, that are acquired by them in payment of
the Notes referred to in the Purchase Agreement.
"STOCKHOLDERS" means the Sellers and any persons or entities to whom
the rights granted under this Agreement are transferred by the Sellers or their
respective successors or assigns pursuant to Section 12 hereof.
2. REQUIRED REGISTRATIONS.
(a) At any time after one year from the date hereof, a Stockholder or
Stockholders holding in the aggregate at least 50% of the voting power of the
Registrable Shares may request, in writing, that the Company effect the
registration of the Registrable Shares owned by such Stockholder or
Stockholders. If the holders initiating the registration intend to distribute
the Registrable Shares by means of an underwriting, they shall so advise the
Company in their request. Upon receipt of any such request, the Company shall
promptly give written notice of such proposed registration to all Stockholders.
Such Stockholders shall have the right, by giving written notice to the Company
within 30 days after the Company provides its notice, to elect to have included
in such registration such of their Registrable Shares as such Stockholders may
request in such notice of election. Thereupon, the Company shall, as
expeditiously as possible, use its best efforts to effect the registration of
all Registrable Shares which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one registration
in total pursuant to paragraph (a) above.
(c) If at the time of any request to register Registrable Shares
pursuant to this Section 2, the Company is engaged or has fixed plans to
engage within 90 days of the time of the request in a registered public
offering as to which the Stockholders may include Registrable Shares pursuant
to Section 3 or is engaged in any other activity which, in the good faith
determination of the Company's Board of
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Directors, would be adversely affected by the requested registration to the
material detriment of the Company, then the Company may at its option direct
that such request be delayed for a period not in excess of six months from the
effective date of such offering or the date of commencement of such other
material activity, as the case may be.
(d) In connection with any offering under this Section 2 involving an
underwriting, the right of other Stockholders to participate shall be
conditioned on such Stockholders participating in such underwriting and execute
the underwriting agreement with the underwriter chosen by the Stockholders
initiating the offering to underwrite the offering. Further, if in the opinion
of the underwriter managing any underwritten offering the registration of all
the Registrable Shares sought to be included would materially and adversely
affect such public offering, then the Company shall be required to include in
the underwriting only that number of Registrable Shares that the managing
underwriter believes may be sold without causing such material adverse effect,
and any limitation on participation in the offering will be imposed pro rata
with respect to all such Registrable Shares.
3. INCIDENTAL REGISTRATION.
(a) Whenever the Company proposes to file a Registration Statement
(other than pursuant to Section 2) at any time and from time to time, it will,
prior to such filing, give written notice to all Stockholders of its intention
to do so and, upon the written notice of a Stockholder or Stockholders given
within 20 days after the Company provides such notice, the Company shall use its
best efforts to cause all Registrable Shares which the Company has been
requested by such Stockholder or Stockholders to register to be included in such
Registration Statement; provided, that the Company shall have the right to
postpone or withdraw any registration effected pursuant to this Section 3(a)
without obligation to any Stockholder.
(b) In connection with any offering under this Section 3 involving an
underwriting, the Company shall not be required to include any Registrable
Shares in such underwriting unless the holders thereof participate in such
underwriting and executing the underwriting agreement with the underwriter
chosen by the Company to underwrite the offering. Further, if in the opinion of
the managing underwriter the registration of all, or part of, the securities
whose holders have a contractual incidental right to include them in the
Registration Statement and as to which inclusion has been
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requested pursuant to such right would materially and adversely affect such
public offering, then the Company shall be required to include in the
underwriting only that number of Registrable Shares, if any, which the managing
underwriter believes may be sold without causing such adverse effect. If the
number of Registrable Shares to be included in the underwriting in accordance
with the foregoing is less than the total number of shares which the holders of
Registrable Shares have requested to be included, then the holders of
Registrable Shares who have requested registration shall participate in the
underwriting pro rata based upon their total ownership of Registrable Shares. If
any holder would thus be entitled to include more shares that such holder
requested to be registered, the excess shall be allocated among other requesting
holders pro rata based upon their total ownership of Registrable Shares.
4. REGISTRATION PROCEDURES. If and whenever the Company is required by the
provisions of this Agreement to use its best efforts to effect the registration
of any of the Registrable Shares under the Securities Act, the Company shall:
(a) file with the Commission a Registration Statement with respect to such
Registrable Shares and use its best efforts to cause that Registration Statement
to become and remain effective.
(b) as expeditiously as possible prepare and file with the Commission any
amendments and supplements to the Registration Statement and the prospectus
included in the Registration Statement as may be necessary to keep the
Registration Statement effective until the earlier of such time as all such
Registrable Shares are sold and the date that is 120 days from the effective
date.
(c) as expeditiously as possible furnish to each selling Stockholder such
reasonable number of copies of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as the selling Stockholder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares owned
by the selling Stockholder; and
(d) as expeditiously as possible use its best efforts to register or
qualify the Registrable Shares covered by the Registration Statement under the
securities or Blue Sky laws of such states as the selling Stockholders shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Stockholders to consummate the
public sale or other disposition in such states of the Registrable Shares owned
by the selling Stockholder; PROVIDED,
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HOWEVER, that the Company shall not be required in connection with this
paragraph (d) to qualify as a foreign corporation or execute a general consent
to service of process in any jurisdiction.
If the Company has delivered preliminary or final prospectuses to the selling
Stockholders and after having done so the prospectus is supplemented or amended
to comply with the requirements of the Securities Act, the Company will promptly
notify the selling Stockholders and, if requested, the selling Stockholders
shall immediately cease making offers of Registrable Shares and return all
prospectuses to the Company. The Company shall promptly provide the selling
Stockholders with revised prospectuses and, following receipt of the revised
prospectuses, the selling Stockholders shall be free to resume making offers of
the Registrable Shares.
5. ALLOCATION OF EXPENSES. The Company will pay all Registration Expenses
of a registration under Section 2(a) of this Agreement; provided however, that
if a registration under Section 2(a) is withdrawn at the request of the
Stockholders requesting such registration (other than as a result of material
adverse information concerning the business or financial condition of the
Company which is made known to the Stockholders after the date on which such
registration was requested), and if the requesting Stockholders elect not to
have such registration counted as the registration requested under Section 2(a),
the requesting Stockholders shall pay the Registration Expenses of such
registration pro rata in accordance with the number of their Registrable Shares
included in such registration. For purposes of this Section, the term
"Registration Expenses" shall mean all expenses incurred by the Company in
complying with this Agreement, including, without limitation, all registration
and filing fees, exchange listing fees, printing expenses, fees and
disbursements of counsel for the Company and the fees and expenses of one
counsel selected by the selling Stockholders to represent the selling
Stockholders, state Blue Sky fees and expenses and the expense of any special
audits incident to or required by any such registration, but excluding
underwriting discounts, selling commissions and the fees and expenses of selling
Stockholders' own counsel (other than the counsel selected to represent all
selling Stockholders).
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6. INDEMNIFICATION.
(a) In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, the Company will indemnify
and hold harmless the seller of such Registrable Shares, each underwriter of
such Registrable Shares, and each other person, if any, who controls such seller
or underwriter within the meaning of the Securities Act or the Exchange Act
against any losses, claims, damages or liabilities, joint or several, to which
such seller, underwriter or controlling person may become subject under the
Securities Act, the Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Company will reimburse each such seller,
underwriter and controlling person for any legal or any other expenses
reasonably incurred by such seller, underwriter or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company, in writing, by or on behalf of such seller,
underwriter or controlling person specifically for use in the preparation
thereof.
(b) In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, each seller of Registrable
Shares, severally and not jointly, will indemnify and hold harmless the Company,
each of its directors and officers and each underwriter (if any) and each
person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which the Company, such directors
and officers, underwriter or controlling person may become subject under the
Securities Act, Exchange Act, state securities or Blue Sky
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laws or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement under which such Registrable Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus contained in the
Registration Statement, or any amendment or supplement to the Registration
Statement, or arise out of or are based upon any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, if the statement or omission was made in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of such seller specifically for use in connection with
the preparation of such Registration Statement, prospectus, amendment or
supplement; provided, however, that the obligations of such Stockholders
hereunder shall be limited to an amount equal to the proceeds to each
Stockholder of Registrable Shares sold in connection with such registration.
(c) Each party entitled to indemnification under this Section 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 shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); 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 under this Section 6 unless the Indemnifying Party's rights or
defenses are materially prejudiced by the failure to provide such notice. The
Indemnified Party may participate in such defense at such party's expense;
provided, however, that the Indemnifying Party shall pay such expense if
representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential differing
interests between the Indemnified Party and any other party represented by such
counsel in such proceeding. No Indemnifying Party, in the defense of any such
claim or litigation shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the
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claimant or plaintiff to such Indemnified Party of a release from all liability
in respect of such claim or litigation, and no Indemnified Party shall consent
to entry of any judgment or settle such claim or litigation without the prior
written consent of the Indemnifying Party.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any holder of
Registrable Shares exercising rights under this Agreement, or any controlling
person of any such holder, makes a claim for indemnification pursuant to this
Section 6 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 6 provides for
indemnification in such case or (ii) contribution under the Securities Act may
be required on the part of any such selling Stockholder or any such controlling
person in circumstances for which indemnification is provided under this Section
6; then, in each such case, the Company and such Stockholder will contribute to
the aggregate losses, claims, damages or liabilities to which they may be
subject (after contribution from others) in such proportions so that such holder
is responsible for the portion represented by the percentage that the public
offering price of its Registrable Shares offered by the Registration Statement
bears to the public offering price of all securities offered by such
Registration Statement, and the Company is responsible for the remaining
portion; provided, however, that, in any such case, (A) no such holder will be
required to contribute any amount in excess of the proceeds to it of all
Registrable Shares sold by it pursuant to such Registration Statement and (B) no
person or entity guilty of fraudulent misrepresentation, within the meaning of
Section 11(f) of the Securities Act, shall be entitled to contribution for any
person or entity who is not guilty of such fraudulent misrepresentation.
7. INDEMNIFICATION WITH RESPECT TO UNDERWRITTEN OFFERING. In the event that
Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering pursuant to Section 2, the Company agrees to enter into an
underwriting agreement containing customary representations and warranties with
respect to the business and operations of an issuer of the securities being
registered and customary covenants and agreements to be performed by such
issuer, including without
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limitation customary provisions with respect to indemnification by the Company
of the underwriters of such offering.
8. INFORMATION BY HOLDER. Each holder of Registrable Shares included in any
registration shall furnish to the Company such information regarding such holder
and the distribution proposed by such holder as the Company may request in
writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
9. "STAND-OFF" AGREEMENT; BLACKOUT PERIODS.
(a) "STAND-OFF" AGREEMENT. Each Stockholder, if requested by the Company
and an underwriter of Common Stock or other securities of the Company, shall
agree not to sell or otherwise transfer or dispose of any Registrable Shares or
other securities of the Company held by such Stockholder for a specified period
of time not to exceed 180 days following the effective date of a Registration
Statement; provided, that all Stockholders holding not less than the number of
shares of Common Stock held by such Stockholder (including shares of Common
Stock issuable upon the conversion of convertible securities, or upon the
exercise of options, warrants or rights) and all officers and directors of the
Company enter into similar agreements. Such agreement shall be in writing in a
form satisfactory to the Company and such underwriter. The Company may impose
stop-transfer instructions with respect to the Registrable Shares or other
securities subject to the foregoing restriction until the end of the stand-off
period.
(b) BLACKOUT PERIODS.
(i) At any time when a Registration Statement on Form S-3 (or its
successor) effected pursuant to this Agreement is effective, upon written notice
from the Company to the Stockholders participating in such Registration
Statement that the Company determines in the good faith judgment of the Board of
Directors of the Company, with the advice of counsel, that such Stockholders'
sale of Registrable Shares pursuant to the Registration Statement would require
disclosure of non-public material information the disclosure of which would have
a material adverse effect on the Company (an "INFORMATION BLACKOUT"), such
Stockholders shall suspend sales of Registrable Shares pursuant to such
Registration Statement until the earliest of:
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(x) the date upon which such material information is disclosed to
the public or ceases to be material;
(y) 60 days after the Company makes a good faith determination that
such material information ceases o be material; and
(z) such time as the Company notifies such Stockholders that sales
pursuant to such Registration Statement may be resumed.
(The number of days from such suspension of sales by such Stockholders until the
day when such sales may be resumed under CLAUSE (X), (Y) or (Z) hereof is
hereinafter called a "SALES BLACKOUT PERIOD.")
(ii) Any delivery by the Company of notice of an Information Blackout
during the 90 days immediately following effectiveness of any Registration
Statement on Form S-3 effected pursuant to this Agreement shall give such
Stockholders the right, by written notice to the Company within 20 business days
after the end of such Sales Blackout Period, to cancel such registration and
obtain one additional registration right (a "BLACKOUT TERMINATION RIGHT") under
this Agreement.
(iii) If there is an Information Blackout and if such Stockholders do not
exercise their cancellation right, if any, pursuant to Section 9(b)(ii) hereof,
or, if such cancellation right is not available, the time period set forth in
SECTION 11(A) hereof shall be extended for a number of days equal to the number
of days in the Sales Blackout Period.
10. RULE 144 REQUIREMENTS. The Company agrees to:
(a) Comply with the requirements of Rule 144(c) under the Securities Act
with respect to current public information about the Company;
(b) Use its best efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Exchange Act; and
(c) Furnish to any holder of Registrable Shares upon request a written
statement by the Company as to its compliance with the requirements of such Rule
144(c) and of the reporting requirements of the Securities Act and the Exchange
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Act, a copy of the most recent annual or quarterly report of the Company and
such other reports and documents of the Company as such holder may reasonably
request to avail itself of any similar rule or regulation of the Commission
allowing it to sell any such securities without registration.
11. TERMINATION OF THIS AGREEMENT. The rights provided to any person under
this Agreement shall terminate, and be of no further force or effect, on the
earliest to occur of (a) of the fifteenth anniversary of the date of this
Agreement; (b) the sale of all or substantially all of the assets or business of
the Company by merger, sale of assets, sale of securities or otherwise; and (c)
the written agreement of holders of at least 50% of the voting power of the
Registrable Shares to terminate this Agreement.
12. TRANSFERS OF RIGHTS. This Agreement, and the rights and obligations of
each Seller hereunder, may be assigned by such Seller to any person or entity to
which Registrable Shares are transferred by such Seller, provided, however, that
no such transfer may be effected without the written consent of the Company; and
each such transferee shall be deemed a "Seller" for purposes of this Agreement.
A transferee to whom rights are transferred pursuant to this Section 12 may not
again transfer such rights to any other person or entity, other than as provided
in this Section.
13. NOTICES. All notices, requests, consents and other communications under
this Agreement shall be in writing and shall become effective when received.
Notices shall be deemed to have been duly received if delivered by hand or sent
by a reputable overnight delivery service or mailed by first class certified or
registered mail, return receipt requested, postage prepaid:
If to the Company, at One Canterbury Green, 000 Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, Attention: President (or at such other address or addresses
as may have been furnished in writing by the Company to the Sellers in
accordance with this Section) with a copy to Xxxxx Xxxxxxx LLP, 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx Xxxxxxxx Xxxx.
If to a Seller, at his address set forth on Exhibit A (or at such other address
or addresses as may have been furnished to the Company in writing by such Seller
in accordance with this Section).
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14. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
15. AMENDMENTS AND WAIVERS. Except as otherwise expressly set forth in this
Agreement, 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), with the written consent of
the Company and the holders of at least 50% of the voting power of the
Registrable Shares; provided, that this Agreement may be amended with the
consent of the holders of less than all Registrable Shares only in a manner
which effects all Registrable Shares in the same fashion.
16. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
17. HEADINGS. The headings of the sections, subsections and paragraphs of
this Agreement have been added for convenience only and shall not be deemed to
be a part of this Agreement.
18. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision.
19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as of the
day and year first above written.
COMPANY:
SEMELE GROUP INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------
Xxxx X. Xxxxxx, Chief Financial
Officer
SELLERS:
/s/ Xxxx X. Xxxxx
---------------------------
Xxxx X. Xxxxx
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/s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx Xxxxx Xxxxx, Trustee, Xxxxx
Xxxxxx Trust u/i/t dated July 21, 1998
/s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx Xxxxx Xxxxx, Trustee, Xxxxxxx
Xxxxx Trust u/i/t dated July 21, 1998
/s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx Xxxxx Xxxxx, Trustee, Sydney
Xxxxxx Xxxxx Trust u/i/t dated
July 21, 1998
/s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx Xxxxx Xxxxx, Trustee, Xxx X.
Xxxxx Trust u/i/t dated July 21, 1998
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EXHIBIT A
SELLER
Xxxx X. Xxxxx
Semele Group Inc.
Xxx Xxxxxxxxxx Xxxxx (0xx Xxxxx)
Xxxxxxxx, XX 00000
Xxxxx X. Xxxxx
Semele Group Inc.
Xxx Xxxxxxxxxx Xxxxx (0xx Xxxxx)
Stamford, CT 06901
Xxxxx Xxxxx Xxxxx, Trustee, Xxxxx Xxxxxx Trust u/i/t dated
July 21, 1998
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxx Xxxxx Xxxxx, Trustee, Xxxxxxx Xxxxx Trust u/i/t dated
July 21, 1998
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxx Xxxxx Xxxxx, Trustee, Sydney Xxxxxx Xxxxx Trust u/i/t
dated July 21, 1998
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxx Xxxxx Xxxxx, Trustee, Xxx X. Xxxxx Trust u/i/t dated
July 21, 1998
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
