Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
AGREEMENT, dated effective as of June 9th, 2004, between AMFINITY CAPITAL,
L.L.C., a Delaware limited liability company ("Amcap"), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
("DMH"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("KAH"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("JWS", and
together with Amcap, DMH, and KAH, each "Holder" and together the "Holders"),
and PRESIDION CORPORATION, a Florida corporation ("Presidion").
WHEREAS, the Holders own a combined 9,415,949 shares of Common Stock,
$0.0000303 par value (the "Common Stock") of Presidion ("Owned Shares");
WHEREAS, subject and pursuant to the terms of a Forbearance Agreement
("Forbearance") of even date herewith, certain of the Holders may be entitled to
be issued up to 1,500,000 additional shares of Common Stock of Presidion
("Contingent Shares"); and
WHEREAS, Presidion desires to grant to the Holders the registration rights
set forth herein with respect to Contingent Shares and the Owned Shares.
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. REGISTRABLE SECURITIES. As used herein the term "Registrable
Security" means each of the Contingent Shares and the Owned Shares.
2. REGISTRATION.
(a) Presidion shall file a registration statement (the
"Registration Statement") with the Securities and Exchange
Commission (the "Commission") on or before September 1, 2004,
in order to register the Registrable Securities for resale
under the Securities Act. Once effective, Presidion shall
maintain the effectiveness of the Registration Statement until
the earlier of (i) the date that all of the Registrable
Securities have been sold, or (ii) the date that the Holders
and Presidion receive an opinion of counsel to Presidion, upon
which Holder may rely, that all of the Registrable Securities
may be freely traded without registration under the Securities
Act, under Rule 144 promulgated under the Securities Act or
otherwise.
(b) Presidion will include in the Registration Statement the Owned
Shares and the 1,500,000 Contingent Shares (reduced by an
appropriate amount if it has been determined prior to the date
such statement is filed that all or a portion of such Shares
shall not be required to be issued pursuant to the
Forbearance), subject to adjustment as set forth in Section 5
below.
3. COVENANTS OF THE COMPANY WITH RESPECT TO REGISTRATION.
Presidion covenants and agrees as follows:
(a) The Registration Statement shall be prepared and filed with the
Commission on the appropriate form under the Securities Act with respect to the
Registrable Shares, which form shall comply in all material respects with the
requirements of the applicable form and include all financial statements
required by the Commission to be filed therewith. Within a reasonable time
before each filing of the Registration Statement or prospectus or amendments or
supplements thereto with the Commission, Presidion shall furnish to counsel
selected by Holders, copies of such documents proposed to be filed, which
documents shall be subject to the approval of such counsel.
(b) Presidion shall use its best efforts to cause the Registration
Statement to become effective with the Commission as promptly as possible. If
any stop order shall be issued by the Commission in connection therewith,
Presidion shall use its best reasonable efforts to obtain promptly the
withdrawal of such order. Presidion shall prepare and file with the Commission
such amendments and supplements to the Registration Statement and the prospectus
used in connection therewith as may be necessary to keep such Registration
Statement effective in accordance with Section 2 hereof and to comply with the
provisions of
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the Securities Act with respect to the sale or other disposition of the
Registrable Shares whenever any Holder desires to sell or otherwise dispose of
the same. Following the effective date of the Registration Statement, Presidion
shall, upon the request of the any Holder, forthwith supply such reasonable
number of copies of the Registration Statement, preliminary prospectus and
prospectus meeting the requirements of the Securities Act, and any other
documents necessary or incidental to the public offering of the Registrable
Securities, as shall be reasonably requested by the Holder to permit the Holder
(and underwriters, if any) to make a public sale or other distribution of the
Holder's Registrable Securities. The obligations of Presidion hereunder with
respect to the Holder's Registrable Securities are subject to the Holder
furnishing to Presidion such appropriate information concerning the Holder, the
Holder's Registrable Securities and the terms of the Holder's offering of such
Registrable Securities as Presidion may reasonably request in writing.
(c) Presidion will take all necessary action which may be required to
qualify or register the Registrable Securities including in the Registration
Statement for the offer and sale under the securities or blue sky laws of such
states as are reasonably requested by each Holder of such securities, provided
that Presidion shall not be obligated to qualify as a foreign corporation to do
business under the laws of any such jurisdiction in which it is not already
qualified.
(d) Presidion shall immediately notify Holders, Holders' counsel and any
underwriter and (if requested by any such person) confirm such notice in
writing, of the happening of any event which makes any statement made in the
Registration Statement or related prospectus untrue or that requires the making
of any changes in such Registration Statement or prospectus so that they will
not contain any untrue statement of material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
in the light of the circumstances under which they were made not misleading;
and, as promptly as practicable thereafter, prepare and file with the Commission
and furnish supplement or amendment to such Registration Statement or prospectus
so that, as thereafter deliverable to the purchasers of such Registrable Shares,
such Registration Statement or prospectus will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(e) Presidion shall use its best efforts to cause, to the extent
applicable, the Registrable Shares covered by the Registration Statement to be
registered with or approved by such other governmental agencies or authorities
and to obtain such approvals, consents and make such filings as may be necessary
by virtue of the business and operations of Presidion to enable any Holder to
consummate the disposition of such Registrable Shares in accordance with its
intended method of distribution thereof.
(f) Presidion shall make available to Holders, any underwriter
participating in any disposition, and any attorney, accountant or other agent or
representative retained by any Holder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of Presidion (collectively, the "Records") reasonably necessary
to enable them to exercise their due diligence responsibility, and cause
Presidion's officers, directors and employees to supply all information
requested by any such Inspector in connection with the filing of the
Registration statement.
(g) Presidion shall enter into such customary agreements (including, if
applicable, an underwriting agreement in customary form) and take such other
actions as the Holders or the underwriters retained by any Holder participating
in an underwritten public offering, if any, may reasonably request in order to
expedite or facilitate the disposition of the Registrable Securities (and the
Holder may, at its option, require that any or all of the representations,
warranties and covenants of Presidion to or for the benefit of any underwriters
also be made to and for the benefit of the Holder).
(h) Presidion shall furnish to Holders a signed counterpart of (i) an
opinion of counsel of Presidion, dated the effective date of the Registration
Statement, and in the event of an underwritten offering (ii) a "comfort" letter
signed by the independent public accountants who have certified Presidion's
financial statements included in the Registration Statement, covering
substantially the same matters with respect to the Registration Statement (and
the prospectus included therein) and (in the case of the accountants' letter)
with respect to events subsequent to the date of the financial statements, as
are customarily covered (at the
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time of such registration) in opinions of Presidion's counsel and in
accountants' letters delivered to the underwriters in underwritten public
offerings of securities.
(i) Presidion shall, in connection with an underwritten offering,
participate, to the extent reasonably requested by the managing underwriter for
the offering or the Holders, in customary efforts to sell the securities being
offered, and cause such steps to be taken as to ensure such good faith
participation of senior management officers of Presidion in "road shows" as is
customary.
(j) Presidion shall otherwise cooperate with the underwriter(s), the
Commission and other regulatory agencies and take all actions and execute and
deliver or cause to be executed and delivered all documents necessary to effect
the registration and sale of the Registrable Securities.
(k) Presidion shall, during the period when the prospectus is required
to be delivered under the Securities Act, promptly file all documents required
to be filed with the Commission, including pursuant to Sections 13(a), 13(c),
14, or 15(d) of the Exchange Act.
(l) Presidion shall provide a transfer agent and registrar for the
Registrable Securities registered pursuant hereto and a CUSIP number for such
Registrable Securities, in each case no later than the effective date of such
registration.
(m) Presidion shall pay all costs, fees and expenses in connection with
the Registration Statement filed pursuant to Section 2 hereof including, without
limitation, Presidion's legal and accounting fees, printing expenses, and blue
sky fees and expenses, whether or not the Registration Statement becomes
effective; provided, however, that each Holder shall be solely responsible for
the fees of any counsel retained by the Holder in connection with such
registration and any transfer taxes or underwriting discounts, commissions or
fees applicable to the Registrable Securities sold by the Holder pursuant
thereto.
4. ADDITIONAL TERMS.
(a) Presidion shall indemnify and hold harmless the Holders and each
underwriter, within the meaning of the Securities Act, who may purchase from or
sell for any Holder, any Registrable Securities, from and against any and all
losses, claims, damages and liabilities
(i) caused by any untrue statement of material fact contained in the
Registration Statement, any other registration statement filed by
Presidion under the Securities Act with respect to the registration of the
Registrable Securities, any post-effective amendment to such registration
statements, or any prospectus included therein or
(ii)caused by any omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading
or
(iii) caused by any violation or alleged violation by Presidion of the
Securities Act, any state securities or "blue sky" laws or any sale or
regulation thereunder in connection with such registration, except insofar
as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission based upon information furnished or required
to be furnished in writing to Presidion by the Holder(s) or underwriter
expressly for use therein, which indemnification shall include each
person, if any, who controls the Holder(s) or underwriter within the
meaning of the Securities Act and each officer, director, employee and
agent of each Holder and underwriter; provided, however, that the
indemnification in this Section 4(a) with respect to any prospectus shall
not inure to the benefit of the Holder(s) or underwriter (or to the
benefit of any person controlling the Holder(s) or underwriter) on account
of any such loss, claim, damage or liability arising from the sale of
Registrable Securities by the Holder(s) or underwriter, if a copy of a
subsequent prospectus correcting the untrue statement or omission in such
earlier prospectus was provided to such Holder(s) or underwriter by
Presidion prior to the subject sale and the subsequent prospectus was not
delivered or sent by the Holder(s) or underwriter to the purchaser prior
to such sale and provided further, that Presidion shall not be obligated
to so indemnify the Holder(s) or any such underwriter or other person
referred to above unless the Holder(s) or underwriter or other person, as
the case may be, shall at the same time indemnify Presidion, its
directors, each officer signing the Registration Statement and each
person, if any who controls Presidion within the meaning of the
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Securities Act, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement of a material fact contained
in the Registration Statement, any registration statement or any
prospectus required to be filed or furnished by reason of this Agreement
or caused by any omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission based upon information
furnished in writing to Presidion by the Holder(s) or underwriter
expressly for use therein.
(b) If for any reason the indemnification provided for in the preceding
section is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, claim, damage, liability or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
the indemnified party as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect not only the relative benefits
received by the indemnified party and the indemnifying party, but also the
relative fault of the indemnified party and the indemnifying party, as well as
any other relevant equitable considerations.
(c) Presidion stipulates that the Holders shall not have an adequate
remedy if Presidion fails to comply with this Agreement and that damages shall
not be readily ascertainable, and accordingly, Presidion shall not oppose an
application by the Holders of the Registrable Securities or any other person
entitled to the benefits of this Agreement to require specific performance of
any and all provisions hereof or enjoining Presidion from continuing to commit
any such breach of this Agreement.
(d) Neither the filing of a Registration Statement by Presidion pursuant
to this Agreement nor the making of any request for prospectuses by any Holder
shall impose upon any Holder any obligation to sell the Holder's Registrable
Securities.
(e) The Holder(s), upon receipt of notice from Presidion that an event
has occurred which requires a Post-Effective Amendment to the Registration
Statement or a supplement to the prospectus included therein, shall promptly
discontinue the sale of Registrable Securities until the Holder(s) receive a
copy of a supplemented or amended prospectus from Presidion, which Presidion
shall provide as soon as practicable after such notice.
(f) If Presidion fails to keep the Registration Statement referred to
above continuously effective during the requisite period, then Presidion shall,
promptly upon the request of any Holder, use its best efforts to update the
Registration Statement or file a new registration statement covering the
Registrable Securities remaining unsold, subject to the terms and provisions
hereof.
(g) The holders agree to provide Presidion with any information or
undertakings reasonably requested by Presidion in order for Presidion to include
any appropriate information concerning the Holders in the Registration Statement
or in order to promote compliance by Presidion or the Holders with the
Securities Act.
(h) From the date of this Agreement until the date all of the
Registrable Securities have been registered, Presidion shall not register (or
attempt to register) any stock of Presidion (common, preferred, or otherwise)
unless the Registrable Securities are being registered concurrently with such
other stock.
5. GOVERNING LAW. The Registrable Securities will be, if and when
issued, delivered in Illinois. This Agreement shall be deemed to have been made
and delivered in the State of Illinois and shall be governed as to validity,
interpretation, construction, effect and in all other respects by the internal
substantive laws of the State of Illinois, without giving effect to the choice
of law rules thereof.
6. AMENDMENT. This Agreement may only be amended by a written
instrument executed by Presidion and the Holders.
7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements and understandings of the
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parties, oral and written, with respect to the subject matter hereof. This
Agreement is an amendment and restatement in full of the prior Registration
Rights Agreement between Presidion and Amcap dated April 15, 2003 (the "Prior
RRA"). Notwithstanding the foregoing, this Agreement shall not be deemed to
waive or cure any defaults that may have occurred under the Third Replacement
Promissory Note issued by Presidion Solutions, Inc., to DMH and KAH dated April
15, 2003 (the "Note") that resulted from defaults, if any, occurred under the
Prior RRA (as such defaults were not subject to cure under the Note and are not
waived hereby with respect to the Note).
8. EXECUTION IN COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
9. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed duly given when delivered by
hand or mailed by registered or certified mail, postage prepaid, return receipt
requested, as follows:
If to any Holder, Amfinity Capital, L.L.C.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
With a copy to
▇▇▇ & ▇▇▇▇▇▇, LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇
If to Presidion, Presidion Corporation
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
10. BINDING EFFECT; BENEFITS. The Holders may assign their rights
hereunder. This Agreement shall inure to the benefit of, and be binding upon,
the parties hereto and their respective assignees, heirs, legal representatives,
successors and assigns. Nothing herein contained, express or implied, is
intended to confer upon any person other than the parties hereto and their
respective heirs, legal representatives and successors, any rights or remedies
under or by reason of this Agreement.
11. HEADINGS. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
12. SEVERABILITY. Any provision of this Agreement that is held by a
court of competent jurisdiction to be prohibited or unenforceable in any
jurisdiction(s) shall be, as to such jurisdiction(s), ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto as of the date first above written.
PRESIDION: PRESIDION CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Its: President / CEO
HOLDERS: AMFINITY CAPITAL, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and a Manager
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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