EX-10.27
Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made this 28th day
of January, 1994 by and among PURO CORPORATION OF AMERICA, a Delaware
corporation, with its principal offices at ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (the "Company") and The Trust Under Article 16 of the Will of ▇. ▇▇▇▇▇▇
▇▇▇▇▇, for the Benefit of ▇▇▇▇▇▇ ▇▇▇▇▇ and The Trust Under Article 16 of the
Will of ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, for the Benefit of ▇▇▇▇▇ ▇. ▇▇▇▇▇, c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇
of ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (collectively "Purchaser"
or "Investor").
W I T N E S S E T H:
WHEREAS, this date, the Investor has been issued four hundred eighty
thousand (480,000) shares (the "Stock") of the Company's Common Voting Stock,
$.0l par value (the "Common Stock"); and
WHEREAS, this date, the Investor has been issued that certain Warrant to
Purchase Common Stock (the "Warrant"); and
WHEREAS, the Stock and the Common Stock available to the Investor pursuant
to the Warrant are hereinafter collectively referred to as the "Shares".
NOW, THEREFORE, in consideration for the mutual covenants and promises
contained herein, it is agreed as follows:
SECTION I
REGISTRATION OF SHARES
1.1 The Shares have not been registered under the Securities Act of 1933,
as amended (the "Act"). Prior to any registration of the Shares, or in the
absence of an exemption from registration, the Purchaser shall make no offer,
sale or other disposition of any of the Shares except under circumstances which,
in the opinion of counsel to the Company, will be in compliance with the Act.
Each certificate for the Shares shall bear upon the face thereof the following
legend:
The shares represented by this certificate have been issued pursuant
to an exemption from registration under the Securities Act of 1933. These
shares may not be sold, transferred, pledged or hypothecated in the absence
of such registration or an exemption therefrom under such Act or the rules
and regulations thereunder.
1.2 Registration under the Securities Laws.
(a) Contemporaneous Registration. In the event that the Company files
a registration statement (defined herein to include a Notification under
Regulation A under the Act and the offering circular included therein) under the
Act which relates to a current offering of securities of the Company (except in
connection with an offering solely to employees), such registration statement
and the prospectus included therein shall also, at the written request to the
Company by the Purchaser,
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include and relate to, and meet the requirement of the Act with respect to the
public offering of the Shares so as to permit the public sale thereof in
compliance with the Act, provided, however, the underwriter consents to
including said Shares in the contemplated public offering and the Purchaser
agrees to pay to the underwriter the underwriter's discounts or commissions
attributable to said Shares. In the event of such consent, the Company shall
give written notice to the Purchaser of its intention to file a registration
statement under the Act relating to a current offering of the aforesaid
securities of the Company sixty (60) or more days prior to the filing of such
registration statement, and the written request provided for in the first
sentence of this subsection shall be made by the Purchaser thirty (30) or more
days prior to the date specified in the notice as the date on which it is
intended to file such registration statement. Neither the delivery of such
notice by the Company nor of such request by the Purchaser shall in any way
obligate the Company to file such registration statement and notwithstanding the
filing of such registration statement, the Company may, at any time prior to the
effective date thereof, determine not to offer the securities to which such
registration statement relates, without liability to the Purchaser, except that
the Company shall pay such expenses, costs and the like as are contemplated to
be paid by it under subsection (c) of this Section. Furthermore, if the
Purchaser exercises registration rights under this Section 1.2(a) with respect
to an offering made
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by the Company, the Purchaser shall bear any additional expenses, costs and the
like, including but not limited to all reasonable legal, accounting and travel
expenses, which are caused by the inclusion of the Purchaser's Shares in such
registration.
(b) Terms of Underwriting. In connection with any offering involving
an underwriting of shares issued by the Company, and in addition to the
underwriter's consent, the Company shall not be required to include any of the
Purchaser's Shares in such underwriting unless the Purchaser accepts the terms
of the underwriting as agreed upon between the Company and the underwriters
selected by it, and then only in such quantity as will not, in the written
opinion of the underwriters, jeopardize the success of the offering by the
Company. If the total amount of Shares that the Purchaser requests to be
included in such offering exceeds the amount of shares that the underwriters
reasonably believe compatible with the success of the offering the Company shall
only be required to include in the offering that number of the Shares of the
Purchaser (pro rata with the other offered shares of the Company) which the
underwriters believe will not jeopardize the success of the offering provided
that no such reduction shall be made as a consequence of the filing of a
registration statement with respect to treasury securities offered by the
Company for its own account or any securities offered by selling shareholders.
(c) Demand Registration Rights; Existing Registration. In addition to
the aforementioned registration rights if, at any
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time after the date hereof, any Shares acquired hereunder have not been included
in the registration statement referred to in Section 1.2 (a) either because the
Purchaser did not desire to sell or was not permitted to sell pursuant thereto,
or if said registration statement included some but not all of the Shares owned
by the Purchaser, then upon written notification to the Company from the
Purchaser that the Purchaser contemplates a sale under such circumstances that
constitute a public offering within the meaning of the Act, the Company shall as
expeditiously as reasonably possible prepare and file a registration statement
with the Securities and Exchange Commission for such Shares and use its best
efforts to cause such registration statement to become and remain effective;
provided, however, that (a) Common Shares of the Company are then publicly
traded pursuant to an effective registration statement, and (b) in connection
with any proposed registration intended to permit an offering of any securities
from time to time (i.e., a so-called "shelf registration") the Company shall in
no event be obligated to cause any such registration to remain effective for
more than one hundred twenty (120) days. The expense of this registration
statement including, without limitation, all legal and accounting fees, travel
and all other expenses, shall be borne by the company.
(d) Demand Registration Rights; Initial Registration.
(i) In addition to the aforementioned registration rights, at any
time after February 1, 2001, if the
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Company has not filed a registration statement as referred to in Section 1.2(a),
then upon written notification to the Company by the Purchaser that it wishes to
cause a public offering of some or all of the Shares, within the meaning of the
Act, the Company shall then as expeditiously as reasonably possible prepare and
file a registration statement with the Securities and Exchange Commission for
such Shares and use its best efforts to cause such registration statement to
become and remain effective; provided, however, that the Company be permitted to
include in offering of any other securities of the Company in such registration
statement and; further provided that in connection with any proposed
registration intended to permit an offering of any of the Shares from time to
time (i.e., a so-called "shelf registration") the Company shall in no event be
obligated to cause any such registration to remain effective for more than one
hundred twenty (120) days. The expense of this registration statement, including
but not limited to all legal and accounting fees, travel and all other expenses,
shall be borne by the Company.
(ii) In connection with this demand registration right, the
Purchaser shall have the right to compel the Company to adjust the number of its
Shares outstanding in order to cause the availability of that number of Shares
for sale to the public which shall be deemed by the Purchaser to be in the
Purchaser's best interests in effecting the registration of the Shares and
ultimate disposition of the same.
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(e) In each instance in which pursuant to this Section the Company
shall take any action to permit a public offering or sale or other distribution
of any of the Shares, the Company shall:
(i) Supply to the Purchaser if it intends to make a public
distribution four (4) executed copies of each registration statement or
Notification and four (4) executed copies of the preliminary, final and other
prospectus or offering circular in conformity with the requirements of the Act
and the rules and regulations promulgated thereunder.
(ii) Cooperate in taking such action as may be necessary to
register or qualify the Shares under such other securities acts or blue sky laws
of such jurisdictions as the Purchaser shall reasonably request and to do any
and all other acts and things which may be necessary or advisable to enable the
Purchaser to consummate such proposed sale or other disposition of its Shares in
any such jurisdiction; provided, however, that in no event shall the Company be
obligated to qualify to do business or to file a general consent to service of
process in any jurisdiction where it shall not then be qualified.
(iii) Keep effective for a period of not less than one hundred
eighty (180) days after the initial effectiveness thereof all such registration
statements or Notifications under the Act and cooperate in taking such action as
may be necessary to keep effective such other registrations and qualifications,
and do any and all other acts and things for such period - not to
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exceed twelve (12) months - as may be necessary to permit the public sale or
other disposition of such Shares by the Purchaser.
(iv) Indemnify and hold harmless the Purchaser and each
underwriter, within the meaning of the Act, who may purchase from or sell for
the Purchaser, any Shares, from and against any and all losses, claims, damages,
and liabilities (including, but not limited to, any and all expenses whatsoever
reasonably incurred in investigating, preparing, defending or settling any
claim) arising from (a) any untrue statement of a material fact contained in any
prospectus, registration statement or Notification furnished pursuant to clause
(i) of this subsection, or any prospectus or offering circular included therein
or (b) any omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading (unless such
untrue statement or omission was based upon information furnished or required to
be furnished in writing to the Company by the Purchaser or any such underwriter
expressly for use therein), which indemnification shall include each person, if
any, who controls the Purchaser or any such underwriter within the meaning of
the Act; provided. however, that the Company shall not be so obligated to
indemnify the Purchaser or any such underwriter or controlling person unless the
Purchaser and underwriter shall at the same time indemnify the Company, its
directors, each officer signing any registration statement or Notification or
any amendment to any registration statements or Notifications and each person,
if any, who controls
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the Company within the meaning of the Act, from and against any and all losses,
claims, damages and liabilities (including, but not limited to, any and all
expenses whatsoever reasonably incurred in investigating, preparing, defending
or settling any claim) arising from (c) any untrue statement of a material fact
contained in any registration statement or Notification or any amendment to any
registration statement or offering circular furnished pursuant to Clause (i) of
this subsection, or (d) any omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
but the indemnity of the Purchaser, or any such underwriter or controlling
person shall be limited to liability based upon information furnished, or
required to be furnished, in writing to the Company by the Purchaser or any such
underwriter or controlling person expressly for use therein. The indemnity
agreement of the Company therein shall not inure to the benefit of any such
underwriter (or to the benefit of any person who controls such underwriter) on
account of any losses, claims, damages, liabilities (or actions or proceedings
in respect thereof) arising from the sale of any of such Shares by such
underwriter to any person if such underwriter failed to send or give a copy of
the prospectus or offering circular furnished pursuant to Clause (i) of this
subsection, as the same may then be supplemented or amended.
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The Company's obligation under said subsection 1.2(d) shall be conditioned
as to such public offering, upon a timely receipt by the Company in writing of:
(A) Information as to the terms of such public offering furnished by
or an behalf of the Purchaser, if it intends to make a public distribution of
its Shares; and
(B) Such other information as the Company may reasonably require from
the Purchaser, or any underwriter for any of them, for inclusion in such
registration statement, Notification or post-effective amendment.
SECTION II
GENERAL PROVISIONS
2.1 Any failure on the part of any party hereto to comply with any of its
obligations, agreements or conditions hereunder may be waived in writing by the
party to whom such compliance is owed.
2.2 Each party agrees to indemnify and hold harmless the others against any
fee, loss or expense arising out of claims by brokers or finders employed or
alleged to have been employed by the indemnifying party in connection with this
agreement.
2.3 All notices, elections, demands or other communications required or
permitted to be made or given pursuant to this agreement shall be in writing and
shall be considered as properly given or made if sent and actually received by
courier service, overnight delivery service or first class mail, postage prepaid
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or if transmitted (and actually received) by any telecommunication device (e.g.
telex or telecopier) and addressed or sent to the respective parties' addresses
specified below. Any party may change its address by giving notice in writing to
the other parties of its new address.
To the Company: Puro Corporation of America,
a Delaware Corporation
▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Messrs. ▇▇▇▇▇ ▇▇▇▇
and ▇▇▇▇ ▇. ▇▇▇▇,
Co-Presidents
To the Investor: c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇, Esquire
Lev, ▇▇▇▇▇▇▇ & Berlin, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2.4 This agreement and any agreements related thereto constitute the entire
agreement between the parties and supersede and cancel any other agreement,
representation, or communication, whether oral or written, between the parties
hereto relating to the transactions contemplated herein or the subject matter
hereof.
2.5 The Company and the Investor hereby consent to submit themselves to the
jurisdiction of the United States District Court for the Southern District of
New York and the Courts of the State of New York in connection with any disputes
which may arise hereunder. The Company hereby consents to service of process in
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the State of New York by naming the Secretary of State of the State of New York
as agent for service of process. Such submission to jurisdiction and consent to
service of process is nonexclusive of any other jurisdiction or manner of
service in which or by which personal jurisdiction over the Company or West may
be obtained.
2.6 This agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York without giving effect to
principles of conflicts of law.
2.7 This agreement shall inure to the benefit of, and be binding upon, the
parties hereto and their successors and assigns; provided, however, that any
assignment by any party of its rights under this agreement without the prior
written consent of the other parties shall be void.
2.8 This agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this agreement effective the
day and year first above written.
PURO CORPORATION OF AMERICA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇
Its Co-Presidents
Hereunto Duly Authorized
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The Trust Under Article 16 of The Will of
▇. ▇▇▇▇▇▇ ▇▇▇▇▇, for the Benefit of
▇▇▇▇▇▇ ▇▇▇▇▇ and The Trust Under Article
16 of the Will of ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, for
the Benefit of ▇▇▇▇▇ ▇. ▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Hereunto Duly Authorized
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