Exhibit 4.3
ADVANTAGE BUSINESS SERVICES HOLDINGS INC.
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REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of July 23,
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1999 by and among J. STOKES MAYFIELD ("Mayfield") and ADDIE M. RUTLEDGE
("Rutledge"), both of Rock Hill, South Carolina, Mayfield with an address of
1225 Meadow Lakes Road, P.O. Box 999, Rock Hill, South Carolina, 29732 (Mayfield
and Rutledge being collectively referred to as the "Stockholders"); and
ADVANTAGE BUSINESS SERVICES HOLDINGS, INC., a Delaware corporation located at
126 Merrow Road, P.O. Box 1330, Auburn, Maine 04211-1330 (the "Company"). The
Company and the Stockholders are referred to herein individually as a "Party"
and collectively as the "Parties."
RECITALS
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WHEREAS, the Parties have this day consummated a Purchase and Sale
Agreement dated July 23, 1999, pursuant to which the Stockholders have been
issued Common Stock of the Company (the "Advantage Shares"); and
WHEREAS, the parties desire to agree upon the terms and conditions whereby
either of the Stockholders would have the right to request the registration of
their Advantage Shares and the Company would be obligated to provide for the
registration of the Advantage Shares.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, covenants,
agreements and understandings herein contained, the Parties agree as follows:
1. Piggyback Registrations.
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(a) Right to Piggyback. Whenever the Company proposes to register any
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of its securities under the Securities Act and the registration form to be used
may be used for the registration of Advantage Shares (a "Piggyback
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Registration"), the Company shall give prompt written notice to the Stockholders
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of its intention to effect such a registration and shall include in such
registration all Advantage Shares with respect to which the Company has received
written requests from the Stockholders for inclusion therein within 20 days
after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the Stockholders
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shall be paid by the Company in all Piggyback Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is
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an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company shall include
in such registration (i) first, the securities the Company proposes to sell, and
(ii) second, the Stockholders Advantage Shares requested to be included in such
registration, pro rata among the holders of all of the Company's shares on the
basis of the number of shares owned by all such holders.
(d) Selection of Underwriters. If any Piggyback Registration is an
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underwritten offering, the selection of investment banker(s) and manager(s) for
the offering must be approved by the Company.
(e) Other Registrations. If the Company has previously filed a
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registration statement with respect to the Advantage Shares and if such previous
registration has not been withdrawn or abandoned, the Company shall not file or
cause to be effected any other registration of any of its equity securities or
securities convertible or exchangeable into or exercisable for its equity
securities under the Securities Act (except on Form S-8 or any successor form),
whether on its own behalf or at the request of any holder or holders of such
securities, until a period of at least 90 days has elapsed from the effective
date of such previous registration.
2. Holdback Agreements.
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(a) Neither of the Stockholders shall effect any public sale or
distribution (including sales pursuant to Rule 144) of the Advantage Shares, or
any securities convertible into or exchangeable or exercisable for such
securities, during the seven days prior to, and the 180-day period beginning on,
the effective date of any underwritten Piggyback Registration or other
underwritten registered offering of Common Stock on behalf of Company
shareholders (except as part of such underwritten registration), unless the
underwriters managing the registered public offering otherwise agree.
(b) The Company (i) shall not effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to, and during the
180-day period beginning on, the effective date of any underwritten Piggyback
Registration (except as part of such underwritten registration or pursuant to
registrations on Form S-8 or any successor form), unless the underwriters
managing the registered public offering otherwise agree, and (ii) shall cause
each holder of at least 2% (on a fully-diluted basis) of the Company's Common
Stock, or any securities convertible into or exchangeable or exercisable for
Common Stock, purchased from the Company at any time after the date of this
Agreement (other than in a registered public offering) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of any
such securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
3. Registration Procedures. Whenever the Stockholders have requested that
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any Advantage Shares be registered pursuant to this Agreement, the Company shall
use its reasonable best efforts to effect the registration and the sale of such
Advantage Shares, in accordance with the
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intended method of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to the Advantage Shares and use its
reasonable best efforts to cause such registration statement to become
effective;
(b) notify the Stockholders of the effectiveness of each registration
statement filed hereunder and prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than 180 days and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) furnish to the Stockholders 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 the Stockholders may reasonably request in order to
facilitate the disposition of the Advantage Shares being sold;
(d) use its reasonable best efforts to register or qualify such
Advantage Shares under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Advantage Shares
owned by the Stockholders (provided that the Company shall not be required to
(i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(e) notify the Stockholders, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event as a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and, at the request of
any such seller, the Company shall prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such Advantage
Shares, such prospectus shall not contain an untrue statement of a material fact
or omit to state any fact necessary to make the statements therein not
misleading;
(f) cause all such Advantage Shares to be listed on each securities
exchange on which similar securities issued by the Company are then listed and,
if not so listed, to be listed on the National Association of Securities Dealers
("NASD") automated quotation system and, if listed on the NASD automated
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quotation system ("NASDAQ"), use its best efforts to secure designation of all
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such Advantage Shares covered by such registration statement as a NASDAQ
"national market system security" within the meaning of Rule 11Aa2-1 of the
Securities and Exchange Commission or, failing that, to secure NASDAQ
authorization for such Advantage Shares and, without limiting
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the generality of the foregoing, to arrange for at least two market makers to
register as such with respect to such Advantage Shares with the NASD;
(g) provide a transfer agent and registrar for all such Advantage
Shares not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
Stockholders may reasonably request in order to expedite or facilitate the
disposition of such Advantage Shares (including effecting a stock split or a
combination of shares);
(i) make available for inspection by the Stockholders, any underwriter
participating in any disposition pursuant to such registration statement and any
attorney, accountant or other agent retained by any such seller or underwriter,
all financial and other records, pertinent corporate documents and properties of
the Company, and cause the Company's officers, directors, employees and
independent accountants to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such
registration statement;
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit the Stockholders to participate in the preparation of such
registration or comparable statement to the extent necessary to comply with
applicable securities laws and regulations and to require the insertion therein
of material, furnished to the Company in writing, which in the reasonable
judgment of such holder and its counsel should be included;
(1) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(m) use its best efforts to cause the Advantage Shares covered by such
registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the sellers
thereof to consummate the disposition of such Advantage Shares; and
(n) obtain a cold comfort letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by cold comfort letters as the Stockholders may reasonably request.
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4. Registration Expenses.
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(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company (all such expenses being
herein called "Registration Expenses"), shall be borne as provided in this
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Agreement, except that the Company shall, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance and
the expenses and fees for listing the securities to be registered on each
securities exchange on which similar securities issued by the Company are then
listed or on the NASDAQ.
(b) In connection with each Piggyback Registration, the Company shall
reimburse the Stockholders for the reasonable fees and disbursements of one
counsel chosen by the Stockholders and subject to the approval of the Company,
which shall not be unreasonably exercised.
(c) To the extent Registration Expenses are not required to be paid by
the Company, the Stockholders shall pay those Registration Expenses allocable to
the registration of the Stockholders' securities so included, and any
Registration Expenses not so allocable shall be borne by all sellers of
securities included in such registration in proportion to the aggregate selling
price of the securities to be so registered.
5. Indemnification.
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(a) The Company agrees to indemnify, to the extent permitted by law,
the Stockholders against all losses, claims, damages, liabilities and expenses
caused by any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are caused by or contained in
any information furnished in writing to the Company by such holder expressly for
use therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Advantage Shares.
(b) In connection with any registration statement in which a holder of
Advantage Shares is participating, each selling Stockholder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the
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Company, its directors and officers and each Person who controls the Company
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of material fact contained in the registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the extent
that such untrue statement or omission is contained in any information or
affidavit so furnished in writing by such holder.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities. The Company also
agrees to make such provisions, as are reasonably requested by any indemnified
party, for contribution to such party in the event the Company's indemnification
is unavailable for any reason.
6. Participation in Underwritten Registrations. No Stockholder may
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participate in any registration hereunder which is underwritten unless such
Stockholder (a) agrees to sell such Advantage Shares on the basis provided in
any underwriting arrangements approved by the Stockholders or (in the case of a
primary registration on behalf of the Company) the Company and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements provided that no Stockholder shall be required to make any
representations or warranties to the Company or the underwriters (other than
representations and warranties regarding such holder and such holdees intended
method of distribution) or to undertake any indemnification obligations to the
Company or the underwriters with respect thereto, except as otherwise provided
in paragraph 5 hereof.
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7. Miscellaneous.
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(a) Selection of Investment Bankers. The selection of investment
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banker(s) and manager(s) for any public offering or private sale shall be made
by the Company.
(b) No Inconsistent Agreements. The Company shall not hereafter enter
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into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the Stockholders in this Agreement. To the extent
that any provision of that certain Registration Rights Agreement dated as of
February 10, 1998 is inconsistent with any provision of this Agreement, the
Stockholders shall be deemed to have rights coextensive with those of the "Other
Stockholders" under the former agreement.
(c) Adjustments Affecting Advantage Shares. The Company shall not take
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any action, or permit any change to occur, with respect to its securities which
would adversely affect the ability of the Stockholders to include the Advantage
Shares in a registration undertaken pursuant to this Agreement or which would
adversely affect the marketability of the Advantage Shares in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
(d) Remedies. Any Person having rights under any provision of this
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Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(e) Amendments and Waivers. Except as otherwise provided herein, the
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provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company.
(f) Successors and Assigns. All covenants and agreements in this
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Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not.
(g) Severability. Whenever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(h) Counterparts. This Agreement may be executed simultaneously in
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counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together shall constitute one and the
same Agreement.
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(i) Descriptive Headings: Interpretation. The descriptive headings of
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this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement. The use of the word "including" in this
Agreement shall be by way of example rather than by limitation.
(j) Governing Law. All issues and questions concerning the
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construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
(k) Notices. All notices, demands or other communications to be given
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or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, one day after being sent to the recipient by reputable overnight
courier service (charges prepaid) or five days after being mailed to the
recipient by certified or registered mail, return receipt requested and postage
prepaid. Such notices, demands and other communications shall be sent to the
Company, the Investors and the Other Stockholders at the addresses indicated on
the Notices Schedule attached hereto or to such other address or to the
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attention of such other person as the recipient party has specified by prior
written notice to the sending party.
(1) No Strict Construction. The parties hereto have participated
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jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
/s/ J. Stokes Mayfield
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J. Stokes Mayfield
/s/ Addie M. Rutledge
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Addie M. Rutledge
Stockholders
ADVANTAGE BUSINESS SERVICES
HOLDINGS, INC.
By:/s/ Charles W. Lathrop, Jr.
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Charles W. Lathrop, Jr.
President and Chief Executive Officer
Company
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