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Exhibit 10.2
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REGISTRATION RIGHTS AGREEMENT
dated as of November 22, 2000
between
PETMED EXPRESS, INC.
and
TRICON HOLDINGS, LLC
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TABLE OF CONTENTS
Page
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Section 1. Definitions................................................1
Section 2. Demand Registration........................................3
a. Request for Registration by Holders...............3
b. Filing and Effectiveness..........................3
c. Priority On Demand Registration...................4
d. Postponement of Demand Registration...............4
Section 3. Shelf Registration.........................................5
Section 4. Piggyback Registration.....................................5
a. Right to Piggyback................................5
b. Priority On Piggyback Registrations...............6
Section 5. Registration Procedures....................................7
Section 6. Registration Expenses.....................................12
Section 7. Indemnification...........................................12
a. Indemnification by the Company...................12
b. Indemnification by Holders.......................13
c. Conduct of Indemnification Proceedings...........13
d. Contribution.....................................13
Section 8. Underwritten Registrations................................14
Section 9. Miscellaneous.............................................15
a. Remedies.........................................15
b. Amendments and Waivers...........................15
c. Notices..........................................15
d. Successors and Assigns...........................16
e. Counterparts.....................................16
f. Titles and Subtitles.............................16
g. Governing Law....................................16
h. Separability.....................................16
i. Entire Agreement.................................16
j. Merger or Consolidation of the Company...........16
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of November 22, 2000, by and between PETMED EXPRESS, INC., a
Florida corporation (together with its successors and assigns, the "COMPANY")
and TRICON HOLDINGS, LLC, a Florida limited liability company (together with its
successors and assigns, the "PURCHASER"), and each other person who becomes a
Holder (as defined below) hereunder.
RECITALS
WHEREAS, the Company and the Purchaser have entered into a Subscription
Agreement dated as of November 22, 2000 (the "SUBSCRIPTION AGREEMENT"); and
WHEREAS, to induce the Purchaser to execute and deliver the
Subscription Agreement, the Company has agreed to provide to the Holders certain
registration rights under the Securities Act (as defined below).
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein and in the Subscription Agreement, and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
Section 1. DEFINITIONS. For purposes of this Agreement, the following
capitalized terms have the following meanings:
"ARTICLES OF INCORPORATION" shall mean the Articles of Incorporation of
the Company.
"ANCILLARY DOCUMENTS" shall mean this Agreement and the Warrant.
"COMMON STOCK" shall mean the Common Stock, par value $0.001 per share
of the Company and any securities into which such common stock may be or has
been converted or exchanged in any merger, consolidation or reclassification.
"HOLDERS" shall mean the Purchaser and each of the Purchaser's
permitted transferees pursuant to Section 9(d) who agree to be bound by the
provisions of this Agreement in accordance with said section.
"PERSON" shall mean an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof, or other entity of any
kind.
"PROSPECTUS" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed
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as part of an effective registration statement in reliance upon Rule 430A under
the Securities Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and all other amendments and
supplements to such prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such prospectus.
"REGISTRABLE SECURITIES" shall mean all Shares and Warrant Shares,
excluding (i) any such shares that have been disposed of by a Holder pursuant to
a Registration Statement relating to the sale thereof that has become effective
under the Securities Act or pursuant to Rule 144 or Rule 145 under the
Securities Act and (ii) any such shares that may be sold under Rule 144 under
the Securities Act by a Holder who owns less than 1% of the issued and
outstanding shares of Common Stock of the Company. Registrable Securities shall
also include any shares of the Common Stock or other securities (or shares of
Common Stock underlying such other securities) that may be received by the
Holders (x) as a result of a stock dividend on or stock split of Registrable
Securities or (y) on account of Registrable Securities in a recapitalization of
or similar transaction involving the Company.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company under the Securities Act (including Shelf Registration Statements as
defined in Section 3) that covers any of the Registrable Securities pursuant to
the provisions of this Agreement, including the related Prospectus, any
preliminary prospectus, all amendments and supplements to such registration
statement (including post-effective amendments), all exhibits and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder, all as the same shall be in
effect from time to time.
"SHARES" shall have the meaning set forth in the Subscription
Agreement, as well as any securities into which such common stock may be or has
been converted or exchanged in any merger, consolidation or reclassification.
"SUBSCRIPTION AGREEMENT" shall have the meaning set forth in the
recitals hereto.
"UNDERWRITTEN OFFERING" shall mean a distribution, registered pursuant
to the Securities Act, in which securities of the Company are sold to the public
through one or more underwriters.
"WARRANT" shall have the meaning set forth in the Subscription
Agreement.
"WARRANT SHARES" shall have the meaning set forth in the Subscription
Agreement.
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Section 2. DEMAND REGISTRATION.
a. REQUEST FOR REGISTRATION BY HOLDERS. Subject to
the conditions set forth in this Agreement, at any time, one or more Holders
will have the right, by written notice delivered to the Company (a "DEMAND
NOTICE"), to require the Company to register Registrable Securities under and in
accordance with the provisions of the Securities Act (a "DEMAND REGISTRATION");
provided that: (i) the Holders may not make in the aggregate more than two (2)
Demand Registrations under this Agreement and of the foregoing, no more than
once in any calendar year; and (ii) no Demand Notice may be given prior to six
(6) months after the date on which a registration pursuant to this Section 2 was
terminated in its entirety prior to the effective date of the applicable
registration statement. The Demand Notice shall set forth (A) the name of each
Holder signing such Demand Notice, (B) the number of Registrable Securities held
by each such Holder, and, if different, the number of Registrable Securities
such Holder has elected to have registered, and (C) the intended methods of
disposition of the Registrable Securities. A Holder may not withdraw Registrable
Securities from a registration without the Company's consent, which shall not be
unreasonably withheld unless all Holders requesting to include Registrable
Securities in such registration have withdrawn all of their Registrable
Securities. In the event of any such withdrawal, (1) any continuing registration
of Registrable Securities shall constitute a Demand Registration and (2) the
withdrawing Holder shall reimburse the Company for any registration and filing
fees (including any fees payable to the National Association of Securities
Dealers, Inc. or any successor organization) it has incurred with respect to the
withdrawn Registrable Securities (unless all Registrable Securities are
withdrawn, in which case the withdrawing Holder(s) shall reimburse the Company,
on a pro rata basis based on the number of Registrable Securities requested to
be included in such registration, for all costs and expenses incurred by it in
connection with the registration of such Registrable Securities). Subject to
compliance with clause (2) of the preceding proviso, a registration that is
terminated in its entirety prior to the effective date of the applicable
registration statement will not constitute a Demand Registration.
If a Demand Registration is not declared and
maintained effective for the period required by Section 2(b) or if the
consummation of the offering of Registrable Securities pursuant to such Demand
Registration is interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court which is not due to
the act or omission of any Holder, then the Holders shall be entitled to an
additional Demand Registration in lieu thereof.
b. FILING AND EFFECTIVENESS.
(i) The Company will file a Registration
Statement relating to any Demand Registration as promptly as practicable (but in
any event within 75 days) following the date on which the Demand Notice is given
and will use its reasonable best efforts to cause the same to be declared
effective by the SEC as soon as practicable thereafter, but in any event within
120 days thereafter (the "EFFECTIVENESS DATE").
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(ii) The Company agrees to use its best
efforts to comply with all necessary provisions of the federal securities laws
in order to keep each Registration Statement relating to a Demand Registration
effective until all Registrable Securities covered by such Registration
Statement have been sold pursuant to such Registration Statement.
Within ten (10) business days after receipt
of such Demand Notice, the Company will serve written notice thereof (the
"NOTICE") to all other Holders and will, subject to the provisions of Section
2(c), include in any registration required under this Section 2 all Registrable
Securities with respect to which the Company receives written requests for
inclusion therein within fifteen (15) business days after receipt of the Notice
by the applicable Holder. Subject to Section 2(a), the Holder will be permitted
to withdraw in good faith all or part of the Registrable Securities from a
Demand Registration at any time prior to the effective date of such Demand
Registration, in which event the Company will promptly amend or, if applicable,
withdraw the related Registration Statement.
c. PRIORITY ON DEMAND REGISTRATION. If Registrable
Securities are to be registered pursuant to a Demand Registration, the Company
shall provide written notice to the other Holders and will permit all such
Holders who request to be included in the Demand Registration to include any or
all Registrable Securities held by such Holders in such Demand Registration.
Notwithstanding the foregoing, if the managing underwriter or underwriters of an
Underwritten Offering to which such Demand Registration relates advises the
Holders that the total amount of Registrable Securities that such Holders intend
to include in such Demand Registration is in the aggregate such as to materially
and adversely affect the success of such offering, then the number of
Registrable Securities to be included in such Demand Registration will, if
necessary, be reduced and there will be included in such underwritten offering
the number of Registrable Securities that, in the opinion of such managing
underwriter or underwriters, can be sold without materially and adversely
affecting the success of such Underwritten Offering. The Registrable Securities
of the Holder or Holders initiating the Demand Registration shall receive
priority in such Underwritten Offering to the full extent of the Registrable
Securities such Holder or Holders desire to sell (unless these securities would
materially and adversely affect the success of such offering, in which case the
number of such Holder's Registrable Securities included in the offering shall be
reduced to the extent necessary) and the remaining allocation available for
sale, if any, shall be allocated PRO RATA among the other Holders on the basis
of the amount of Registrable Securities requested to be included therein by each
such Holder.
d. POSTPONEMENT OF DEMAND REGISTRATION.
Notwithstanding anything to the contrary in any other provision of this
Agreement, the Company will be entitled to postpone the filing period of any
Demand Registration for a reasonable period of time not in excess of 60 calendar
days if the Board of Directors of the Company determines, in the good faith
exercise of its business judgment, and has delivered to the Holders written
certification to the effect, that such registration and offering could
materially interfere with a bona fide financing transaction of the Company,
including without limitation a primary offering of securities, or any other
material business transaction of the Company, or would require disclosure of
information, the premature disclosure
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of which could materially and adversely affect the Company. If the Company
postpones the filing of a Registration Statement, it will promptly notify the
Holders in writing when the events or circumstances permitting such postponement
have ended.
Section 3. SHELF REGISTRATION. In lieu of the Demand Registrations
provided in Section 2 above, the Holders will be entitled to make one (1)
written request (specifying that such request is being made pursuant to this
Section 3) for the Company to file a Registration Statement on such form as the
Company is then permitted to use, covering up to and including all of the
Registrable Securities, for a public offering on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act (each a "SHELF REGISTRATION
STATEMENT"). Upon receipt of such written request, the Company shall as promptly
as practicable (but in any event within 75 days) file such Shelf Registration
Statement and use its reasonable best efforts to cause the same to be declared
effective by the SEC as soon as practicable thereafter (but in any event within
120 days thereafter) or otherwise file a post-effective amendment and/or
supplement to any then-effective Shelf Registration Statement to allow the sale
of such Registrable Securities pursuant to such Shelf Registration Statement.
The Company agrees to use its best efforts to comply with all necessary
provisions of the federal securities laws in order to keep the Shelf
Registration Statement effective until all Registrable Securities covered by
such Shelf Registration Statement have been sold pursuant to such Shelf
Registration Statement.
Section 4. PIGGYBACK REGISTRATION.
a. RIGHT TO PIGGYBACK. If at any time the Company
proposes to file a Registration Statement, whether or not for sale for the
Company's own account, on a form and in a manner that would also permit
registration of Registrable Securities (other than in connection with a
registration statement on Forms S-4 or S-8 or any similar or successor form),
the Company shall give to Holders holding Registrable Securities, written notice
of such proposed filing at least twenty (20) days before the anticipated filing.
The notice referred to in the preceding sentence shall offer Holders the
opportunity to register such amount of Registrable Securities as each Holder may
request (a "PIGGYBACK REGISTRATION"). Subject to Section 4(b), the Company will
include in each such Piggyback Registration (and any related qualification under
state blue sky laws and other compliance filings, and in any underwriting
involved therein) all Registrable Securities with respect to which the Company
has received written requests for inclusion therein within fifteen (15) days
after the written notice from the Company is given. The Holders will be
permitted to withdraw all or part of the Registrable Securities from a Piggyback
Registration at any time prior to the effective date of such Piggyback
Registration.
Notwithstanding the foregoing, the Company will not
be obligated to effect any registration of Registrable Securities under this
Section 4 as a result of the registration of any of its securities solely in
connection with mergers, acquisitions, exchange offers, dividend reinvestment
and share purchase plans offered solely to current holders of the Common Stock,
rights offerings or option or other employee benefit plans.
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b. PRIORITY ON PIGGYBACK REGISTRATIONS. The Company
will cause the managing underwriter or underwriters of a proposed Underwritten
Offering to permit Holders holding Registrable Securities requested to be
included in the registration for such offering to include therein all such
Registrable Securities requested to be so included (such securities, together
with any other shares of the same class requested to be included in such
registration by any other Person pursuant to similar registration rights, the
"PIGGYBACK SHARES") on the same terms and conditions as any other securities of
the Company, whether or not for the Company's own account, included therein
(other than the indemnification by the Holders, which will be limited as set
forth in Section 7 hereof and that the Holders shall give customary
representations and warranties). The Company shall cooperate with any such
Holder of Registrable Securities in order to limit any representations and
warranties to, or agreements with, the Company or the underwriters to be made by
such Holder only to those representations, warranties or agreements regarding
such Holder, such Holder's Registrable Securities and such Holder's intended
method of distribution and any other representation required by law.
Notwithstanding the foregoing, if the managing underwriter or underwriters of
such Underwritten Offering advises the Holders to the effect that the total
amount of securities that such Holders and the Company propose to include in
such Underwritten Offering is such as to materially and adversely affect the
success of such offering, then the Company will include in such registration:
(x) in the case of a registration in connection with a sale of
securities for the Company's own account, (i) first, 100% of
the securities that the Company proposes to sell for its own
account, and (ii) second, to the extent that the number of
securities in clause (i) above is less than the number of
securities which the Company has been advised can be sold in
such offering without having the adverse effect referred to
above, the number of Piggyback Shares of each Holder and the
number of Piggyback Shares requested to be included in such
offering by any other Persons pursuant to similar registration
rights, determined pro rata on the basis of the number of
shares of the class being sold owned by each Holder requesting
registration and such other Persons requesting registration,
collectively; and
(y) in the case of a registration in connection with a sale of
securities on account of any Person other than the Company
(the "INITIATING PARTY"), (i) first, 100% of the securities,
if any, that the Initiating Party proposes to sell, (ii)
second, to the extent that the number of securities in clause
(i) above is less than the number of securities which the
Company has been advised can be sold in such offering without
having the adverse effect referred to above, the number of
Piggyback Shares of each Holder and the number of Piggyback
Shares requested to be included in such offering by any other
Persons pursuant to similar registration rights, determined
pro rata on the basis of the number of shares of the class
being sold
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owned by each Holder requesting registration and such other
Persons requesting registration, collectively, and (iii)
third, to the extent that the number of securities in clauses
(i) and (ii) above is less than the number of securities which
the Company has been advised can be sold in such offering
without having the adverse effect referred to above, the
securities included by the Company in the offering.
Section 5. REGISTRATION PROCEDURES. In connection with the Company's
registration obligations pursuant to Sections 2, 3 and 4, the Company will
effect such registrations to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company will as expeditiously as possible, and in each case
to the extent applicable (it being understood that the obligations of the
Company in clauses (a), (b), (d), (h), (j), (k), (l), (n) and (q) of this
Section 5 will be subject to the first sentence of Section 4(b) and, except as
provided in Section 4(b), the Holders will not have any right to effect an
underwritten public offering under Section 4):
a. Prepare and file with the SEC a Registration
Statement on any appropriate form under the Securities Act available for the
sale of the Registrable Securities by the holders thereof in accordance with the
intended method or methods of distribution thereof, and cause such Registration
Statement to become effective and remain effective as provided herein; provided,
however, that before filing a Registration Statement or Prospectus or any
amendments or supplements thereto (including documents that would be
incorporated or deemed to be incorporated therein by reference) the Company will
furnish to the Holders holding Registrable Securities covered by such
Registration Statement, not more than one counsel chosen by Holders holding a
majority of the Registrable Securities being registered ("SPECIAL COUNSEL") and
the managing underwriters, if any, copies of all such documents proposed to be
filed, which documents will be subject to the review of such Holders, such
Special Counsel and such underwriters, and the Company will not file any such
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto (excluding such documents that, upon filing, will be incorporated or
deemed to be incorporated by reference therein) to which the Holders holding a
majority of the Registrable Securities covered by such Registration Statement or
the managing underwriter, if any, shall reasonably object.
b. Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
periods specified in Section 2 or 3, as the case may be; cause the related
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or in such Prospectus as so supplemented.
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c. Notify the selling Holders and the managing
underwriters, if any, promptly, and (if requested by any such person) confirm
such notice in writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of any request by the SEC or any other federal or state governmental
authority for amendments or supplements to a Registration Statement or related
Prospectus or for additional information, (iii) of the issuance by the SEC or
any other federal or state governmental authority of any stop order suspending
the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if at any time the representations and
warranties of the Company contained in any agreement contemplated by Section
5(n) (including any underwriting agreement) cease to be true and correct in any
material respect, (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (vi) of the
occurrence of any event that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in a Registration Statement, Prospectus or
any such document so that, in the case of the Registration Statement, it will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading and, in the case of the Prospectus, it will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and (vii) of the
Company's reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate.
d. Use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of a Registration
Statement, or the lifting of any suspension of the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment.
e. If requested by the managing underwriters, if any,
or Holders holding a majority of the Registrable Securities being registered,
(i) promptly incorporate in a Prospectus supplement or post-effective amendment
such information as the managing underwriters, if any, and such Holders agree
should be included therein as may be required by applicable law and (ii) make
all required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received notification of
the matters to be incorporated in such Prospectus supplement or post-effective
amendment; provided, however, that the Company will not be required to take any
actions under this Section 5(e) that are not, in the opinion of counsel for the
Company, in compliance with applicable law; and provided further that to the
extent that any such information relates only to a particular Holder, the
consent of the Holders of a majority of the Registrable Securities being
registered shall not be required.
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f. Furnish to each selling Holder and each managing
underwriter, if any, without charge, at least one conformed copy of the
Registration Statement and any post-effective amendment thereto (but excluding
schedules, all documents incorporated or deemed incorporated therein by
reference and all exhibits, unless requested in writing by such holder or
underwriter).
g. Deliver to each selling Holder and the
underwriters, if any, without charge as many copies of the Prospectus or
Prospectuses relating to such Registrable Securities (including each preliminary
prospectus) and any amendment or supplement thereto as such persons may
reasonably request; and, subject to the last paragraph of this Section 5, the
Company hereby consents to the use of such Prospectus or each amendment or
supplement thereto by each of the selling Holders and the underwriters, if any,
in connection with the offering and sale of the Registrable Securities covered
by such Prospectus or any amendment or supplement thereto.
h. Prior to any public offering of Registrable
Securities, to register or qualify or cooperate with the selling Holders, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions within the United States as
any seller or underwriter reasonably requests in writing; use all reasonable
efforts to keep such registration or qualification (or exemption therefrom)
effective during the period the applicable Registration Statement is required to
be kept effective and do any and all other acts or things necessary or advisable
to enable the disposition in each such jurisdiction of the Registrable
Securities covered by the applicable Registration Statement; provided, however,
that the Company will not be required to (i) qualify to do business in any
jurisdiction where it is not then so qualified or (ii) take any action that
would subject it to taxation or service of process in any such jurisdiction
where it is not then so subject.
i. Cooperate with the selling Holders and the
managing underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold and enable such
Registrable Securities to be in such denominations and registered in such names
as the managing underwriters, if any, shall request at least two business days
prior to any sale of Registrable Securities to the underwriters.
j. Use its reasonable best efforts to cause the
Registrable Securities covered by the applicable Registration Statement to be
registered with or approved by such other governmental agencies or authorities
within the United States except as may be required solely as a consequence of
the nature of any selling Holder's business, in which case the Company will
cooperate in all reasonable respects with the filing of such Registration
Statement and the granting of such approvals as may be necessary to enable the
seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities.
k. Upon the occurrence of any event contemplated by
Section 5(c)(vi) or 5(c)(vii), prepare a supplement or post-effective amendment
to each Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any
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other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder, such Prospectus will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
l. If requested by Holders holding a majority of the
Registrable Securities covered by such Registration Statement or the managing
underwriters, if any, use its best efforts to cause all Registrable Securities
covered by such Registration Statement to be (i) listed on each securities
exchange, if any, on which securities issued by the Company of the same class
are then listed, or (ii) authorized to be quoted on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ"), if the securities
qualify to be so quoted.
m. As needed, (i) engage an appropriate transfer
agent and provide the transfer agent with printed certificates for the
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Registrable Securities.
n. Enter into such customary agreements (including,
in the event of an Underwritten Offering, an underwriting agreement in form,
scope and substance as is customary in underwritten offerings) and take all such
other commercially reasonable and customary actions in connection therewith
(including those reasonably requested by the Holders holding a majority of the
Registrable Securities being sold or, in the event of an Underwritten Offering,
those reasonably requested by the managing underwriters) in order to facilitate
the disposition of such Registrable Securities and in such connection, but only
where an underwriting agreement is entered into in connection with an
underwritten registration, (i) make such representations and warranties to the
underwriters with respect to the businesses of the Company and its subsidiaries,
the Registration Statement, Prospectus and documents incorporated by reference
or deemed incorporated by reference therein, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested; (ii) obtain
opinions of counsel to the Company and updates thereof, which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters, if any, addressed to each of the underwriters covering
the matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such underwriters;
(iii) obtain "comfort" letters and updates thereof from the independent
certified public accountants of the Company (and, if necessary, any other
certified public accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial data is, or
is required to be, included in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "comfort" letters in connection with
underwritten offerings; (iv) cause the Company's management to be made available
for, and assist in, the marketing and disposition of such Registrable Securities
in the manner and to the extent reasonably requested by the underwriters
including, without limitation, participation by management in customary road
shows, investor conferences and other similar presentations and (v) deliver such
documents and certificates as may be reasonably requested by the managing
underwriters, if any, to evidence the continued validity of
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the representations and warranties of the Company and its subsidiaries made
pursuant to clause (i) above and to evidence compliance with any customary
conditions contained in the underwriting agreement entered into by the Company.
The foregoing actions will be taken in connection with each closing under such
underwriting agreement as and to the extent required thereunder.
o. Make available for reasonable inspection during
normal business hours by a representative of the Holders holding Registrable
Securities being sold, any underwriter participating in any disposition of
Registrable Securities, and any attorney or accountant retained by such selling
Holders or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, and cause the
officers, directors and employees of the Company and its subsidiaries to supply
all information reasonably requested by any such representative, underwriter,
attorney or accountant in connection with such Registration Statement; provided,
however, that any records, information or documents that are designated by the
Company in writing as confidential at the time of delivery of such records,
information or documents will be kept confidential by such persons unless (i)
such records, information or documents are in the public domain or otherwise
publicly available, (ii) disclosure of such records, information or documents is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, or (iii) disclosure of such records,
information or documents, in the reasonable opinion of counsel to such person,
is otherwise required by law (including, without limitation, pursuant to the
requirements of the Securities Act).
p. Comply with all applicable rules and regulations
of the SEC and make generally available to its security holders earning
statements satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 calendar days after the end of any 12-month period (or 90
calendar days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best efforts
underwritten offering, or (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company, after
the effective date of a Registration Statement, which statements shall cover
such 12-month period.
The Company may require each seller of Registrable
Securities as to which any registration is being effected to furnish to the
Company such information regarding the distribution of such Registrable
Securities as the Company may, from time to time, reasonably request in writing,
and the Company may exclude from such registration the Registrable Securities of
any seller who unreasonably fails to furnish such information within a
reasonable time after receiving such request.
Each Holder will be deemed to have agreed by virtue
of its acquisition of Registrable Securities that, upon receipt of any notice
from the Company of the occurrence of any event of the kind described in Section
5(c)(ii), 5(c)(iii), 5(c)(v), 5(c)(vi) or 5(c)(vii) ("SUSPENSION NOTICE"), such
Holder will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus (a "BLACK-OUT") until such
Holder's receipt of the
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copies of the supplemented or amended Prospectus contemplated by Section 5(k),
or until it is advised in writing (the "ADVICE") by the Company that the use of
the applicable Prospectus may be resumed, and such Holder has received copies of
any additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus. Except as expressly provided
herein, there shall be no limitation with regard to the number of Suspension
Notices that the Company is entitled to give hereunder; provided, however, that
in no event shall the aggregate number of days the Holders are subject to
Black-Out during any period of 12 consecutive months exceed 180 days.
Section 6. REGISTRATION EXPENSES. Subject to the second to last
sentence of Section 2(a) and the last sentence of this Section 6, all fees and
expenses incident to the performance of or compliance with this Agreement by the
Company will be borne by the Company whether or not any of the Registration
Statements become effective. Such fees and expenses will include, without
limitation, (i) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company and of printing a reasonable number of
prospectuses if the printing of such prospectuses is requested by the Holders
holding a majority of the Registrable Securities included in any Registration
Statement), (ii) messenger, telephone and delivery expenses incurred by the
Company, (iii) fees and disbursements of counsel for the Company incurred by the
Company, (iv) all registration and filing fees (excluding fees and expenses for
compliance with securities or "blue sky" laws), and (v) fees and disbursements
of all independent certified public accountants referred to in Section 5(n)(iii)
(including the expenses of any special audit and "comfort" letter required by or
incident to such performance) incurred by the Company. In addition, the Company
will pay 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, the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange
on which securities of the same class issued by the Company are then listed and
the fees and expenses of any person, including special experts, retained by the
Company. In no event, however, will the Company be responsible for any
underwriting discounts or selling commissions with respect to any sale of
Registrable Securities pursuant to this Agreement, and the Holders shall be
responsible on a pro rata basis for any taxes of any kind (including, without
limitation, transfer taxes) with respect to any disposition, sale or transfer of
Registrable Securities and for any legal, accounting and other expenses incurred
by them in connection with any Registration Statement.
Section 7. INDEMNIFICATION.
a. INDEMNIFICATION BY THE COMPANY. The Company will
indemnify and hold harmless, to the fullest extent permitted by law, each Holder
holding Registrable Securities registered pursuant to this Agreement, the
officers, directors and agents and employees of each of them, each person who
controls such a Holder (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) and the officers, directors, agents and
employees of any such controlling person, from and against all losses, claims,
damages, liabilities, costs (including without limitation the costs of
investigation and attorneys' fees) and expenses (collectively, "LOSSES"),
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arising out of or based upon any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or form of
Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar and then only to the
extent that the same are based upon information furnished in writing to the
Company by such Holder specifically for use therein.
b. INDEMNIFICATION BY HOLDERS. In connection with any
Registration Statement in which a Holder is participating, such Holder will
furnish to the Company in writing such information as the Company reasonably
requests for use in connection with any Registration Statement, Prospectus or
preliminary prospectus and will indemnify and hold harmless, to the fullest
extent permitted by law, the Company, its directors and officers, agents and
employees, each person who controls the Company (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act), and the directors,
officers, agents or employees of such controlling persons, from and against all
Losses arising out of or based upon any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or preliminary
prospectus or arising out of or based upon any omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, to the extent, but only to the extent, that such untrue statement or
omission is contained in any information so furnished in writing by such Holder
to the Company specifically for use in such Registration Statement, Prospectus
or preliminary prospectus and was relied upon by the Company in the preparation
of such Registration Statement, Prospectus or preliminary prospectus. In no
event will the liability of any selling Holder hereunder be greater in amount
than the dollar amount of the proceeds received by such Holder upon the sale of
the Registrable Securities giving rise to such indemnification obligation.
c. CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any
person shall become entitled to indemnity hereunder (an "INDEMNIFIED PARTY"),
such indemnified party shall give prompt written notice to the party from which
such indemnity is sought (the "INDEMNIFYING PARTY") of any claim or of the
commencement of any action or proceeding with respect to which such indemnified
party seeks indemnification or contribution pursuant hereto; provided, however,
that the failure to so notify the indemnifying party will not relieve the
indemnifying party from any obligation or liability except to the extent that
the indemnifying party has been prejudiced materially by such failure. All
reasonable fees and expenses (including any reasonable fees and expenses
incurred in connection with investigating or preparing to defend such action or
proceeding) will be paid to the indemnified party (provided appropriate
documentation for such expenses is also submitted with such notice), as
incurred, within five calendar days of written notice thereof to the
indemnifying party (regardless of whether it is ultimately determined that an
indemnified party is not entitled to indemnification hereunder). The
indemnifying party will not consent to entry of any judgment or enter into any
settlement or otherwise seek to terminate any action or proceeding in which any
indemnified party is or could be a party and as to which indemnification or
contribution could be sought by such indemnified party under this Section 7,
unless such judgment, settlement or other termination includes as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release, in form and substance reasonably satisfactory to
the indemnified
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party, from all liability in respect of such claim or litigation
for which such indemnified party would be entitled to indemnification hereunder.
d. CONTRIBUTION. If the indemnification provided for
in this Section 7 is unavailable to an indemnified party under Section 7(a) or
7(b) in respect of any Losses or is insufficient to hold such indemnified party
harmless, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, will, severally but not jointly, contribute to the amount
paid or payable by such indemnified party as a result of such Losses, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or indemnifying parties, on the one hand, and such indemnified party, on
the other hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party or indemnifying parties, on the
one hand, and such indemnified party, on the other hand, will be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission of a material fact, has been taken or made by, or related to
information supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses will be deemed to include any legal
or other fees or expenses incurred by such party in connection with any action
or proceeding.
The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 7(d) were determined by
pro rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 7(d), an indemnifying
party that is a selling Holder will not be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities sold by such indemnifying party and distributed to the public were
offered to the public exceeds the amount of any damages that such indemnifying
party has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
e. Except for the payment of reasonable fees and
expenses pursuant to Section 7(c), no indemnifying party shall be required to
make any payment under this Section 7 until a court of competent jurisdiction
and a court hearing appeals therefrom have determined in a final judgment that
such party is obligated to do so pursuant to this Section 7.
The indemnity, contribution and expense reimbursement
obligations of the Company hereunder will be in addition to any liability the
Company may otherwise have hereunder or otherwise. The provisions of this
Section 7 will survive, notwithstanding any permitted transfer of the
Registrable Securities by any Holder thereof or any termination of this
Agreement.
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Section 8. UNDERWRITTEN REGISTRATIONS. The Company will have the
exclusive right in connection with any Demand Registration or Piggyback
Registration that is an Underwritten Offering to select an investment banker or
investment bankers and a manager or managers to manage the offering, provided
that in the case of a Demand Registration, such investment banker(s) is
reasonably acceptable to the Holders holding a majority of the Registrable
Securities included in the Demand Notice. The Company and the Holders agree
that, in connection with any Underwritten Offering hereunder, they shall each
undertake to offer customary indemnification, representations and warranties to
the participating underwriters and to agree to any restrictions required by the
underwriters on the sale of Common Stock or other securities by such party after
the completion of the underwritten offering.
Section 9. MISCELLANEOUS.
a. REMEDIES. In the event of a breach by a party of
its obligations under this Agreement, each other party, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement.
Each party agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of any provision of this Agreement
and hereby further agrees that, in the event of any action for specific
performance in respect of such breach, it will waive the defense that a remedy
at law would be adequate.
b. AMENDMENTS AND WAIVERS. The provisions of this
Agreement may not be amended, modified or supplemented without the prior written
consent of the Company, and Holders holding in excess of 50% of the Registrable
Securities in respect of which Registrable Securities are issuable.
c. NOTICES. All notices required or permitted
hereunder shall be in writing and shall be deemed effectively given: (i) upon
personal delivery to the party to be notified; (ii) when sent by confirmed telex
or facsimile if sent during normal business hours of the recipient, if not, then
on the next business day; (iii) upon delivery if sent by registered or certified
mail, return receipt requested, postage prepaid; or (iv) upon delivery if
deposited with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All communications shall be sent
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
If to the Company: PetMed Express, Inc.
1441 SW 29th Avenue
Pompano Beach, Florida 33069
Attn: Marc A. Puleo, M.D.
Facsimile: 954-971-0544
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With a copy to: Atlas Pearlman, P.A.
350 East Las Olas Boulevard
Suite 1700
Fort Lauderdale, Florida 33301
Attn: Roxanne K. Beilly, Esq.
Facsimile: 954-766-7800
If to the Purchaser: Tricon Holdings, LLC
1020 N.W. 163rd Drive
Miami, Florida 33169
Attn: ________________
Facsimile:_______________
With a copy to: Stearns Weaver Miller Weissler
Alhadeff & Sitterson, P.A.
150 West Flagler Street, Suite 2200
Miami, Florida 33130
Attn: David M. Seifer, Esq.
Facsimile: 305-789-3395
or to such other address or addresses as shall be designated in writing. All
notices shall be effective when received.
d. SUCCESSORS AND ASSIGNS. Subject to the terms of
the Common Stock and the Warrant regarding transfers of the Shares and the
Warrant Shares, respectively, any lawful transferee of all or a portion of the
Registrable Securities shall become a Holder hereunder to the extent it agrees
in writing to be bound by all of the provisions applicable hereunder to the
transferring Holder (such acknowledgment being evidenced by execution and
delivery to the Company of a Counterpart and Acknowledgment substantially in the
form of EXHIBIT A). Subject to the requirements of this Section 9(d), this
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties hereto.
e. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
f. TITLES AND SUBTITLES. The titles of the sections
and subsections of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
g. GOVERNING LAW. This Agreement shall be governed in
all respects by the laws of the State of Florida.
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h. SEPARABILITY. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
i. ENTIRE AGREEMENT. This Agreement and the other
documents delivered pursuant hereto, the Subscription Agreement and the other
Ancillary Documents constitute the full and entire understanding and agreement
between the parties with regard to the subjects thereto and no party shall be
liable or bound to any other in any manner by any representations, warranties,
covenants and agreements except as specifically set forth herein and therein.
j. MERGER OR CONSOLIDATION OF THE COMPANY. If the
Company is a party to any merger or consolidation pursuant to which the
Registrable Securities are converted into or exchanged for securities or the
right to receive securities of any other person ("CONVERSION SECURITIES"), the
issuer of such Conversion Securities shall assume (in a writing delivered to all
Holders) all obligations of the Company hereunder. The Company will not effect
any merger or consolidation described in the immediately preceding sentence
unless the issuer of the Conversion Securities complies with this Section 9(j).
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IN WITNESS WHEREOF, each of the parties has duly executed this
Agreement as of the date first written above.
PETMED EXPRESS, INC.
By: /s/ Marc Puleo, M.D.
-----------------------------------
Name: Marc Puleo, M.D.
Title: Chief Executive Officer
TRICON HOLDINGS, LLC
By: /s/ Kenneth Jacobi
-----------------------------------
Name: Kenneth Jacobi
Title: Manager
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EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
COUNTERPART AND ACKNOWLEDGMENT
TO: The Company
RE: The Registration Rights Agreement (the "AGREEMENT") dated as
of ___________, 2000 by and among the Company and the Holders
(as defined in the Agreement)
The undersigned hereby agrees to be bound by the terms of the
Agreement as a party to the Agreement, and shall be entitled to all benefits of
the Holders (as defined in the Agreement) and shall be subject to all
obligations and restrictions of the Holders pursuant to the Agreement, as fully
and effectively as though the undersigned had executed a counterpart of the
Agreement together with the other parties to the Agreement. The undersigned
hereby acknowledges having received and reviewed a copy of the Agreement.
DATED this _____ day of ____________, _____.
By:
-------------------------------------
Title:
----------------------------------
Number of
Shares of
Registrable Securities:
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