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Exhibit 10.10
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of July 31, 1998, by and between American Architectural Products
Corporation, a Delaware corporation ("AAPC"), and Frank J. Amedia ("Amedia").
The parties hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized terms shall have
the following meanings:
"AAPC" has the meaning ascribed to such term in the first paragraph of
this Agreement.
"Agent" means any Person authorized to act and who acts on behalf of
Holder with respect to the transactions contemplated by this Agreement.
"Common Stock" means the Common Stock of AAPC, par value $.001 per
share.
"Effectiveness Date" means the date upon which an offering of
Registrable Securities of AAPC pursuant to this Agreement is declared effective
by the SEC.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Holder" has the meaning ascribed to such term in Section 2 hereof.
"Indemnified Holder" has the meaning ascribed to such term in Section
7(a) hereof.
"NASD" means the National Association of Securities Dealers, Inc.
"Other Shares" means shares of Common Stock, which shares have not been
registered pursuant to the Securities Act, held by Other Stockholders.
"Other Stockholders" means holders of Common Stock other than Amedia
who have registration rights with respect to the Other Shares.
"Person" means an individual, partnership, corporation, trust or
unincorporated association, or a government agency or political subdivision
thereof.
"Piggyback Registration" has the meaning ascribed to such term in
Section 3 hereof.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Transfer Restricted
Securities pursuant to a Registration Statement, and by all other
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amendments and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such prospectus.
"Public Offering" means a public offering of equity securities by AAPC
registered under the Securities Act.
"Registrable Securities" means the shares of Common Stock owned by
Amedia or by the Amedia Family Limited Partnership; provided that such Common
Stock ceases to be Registrable Securities when such Common Stock is no longer a
Transfer Restricted Security.
"Registration Expenses" has the meaning ascribed to such term in
Section 6 hereof.
"Registration Statement" means any registration statement of AAPC that
covers any of the Common Stock pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such Registration
Statement, including post-effective amendments, and all exhibits and all
material incorporated by reference in such Registration Statement.
"Securities Act" means the Securities Act of 1933, as amended from time
to time.
"SEC" means the Securities and Exchange Commission.
"Shares" means shares of Common Stock outstanding.
"Transfer Restricted Securities" means the Registrable Securities upon
original issuance thereof, and at all times subsequent thereto until (i) such
Registrable Securities have been effectively registered under Section 5 of the
Securities Act and disposed of in accordance with the Registration Statement
covering them or (ii) such Registrable Securities have been distributed to the
public pursuant to Rule 144 (or any similar provisions then in force) of the
Securities Act.
"Thermetic Holders" means the holders of AAPC Common Stock who are
parties to that certain Registration Rights Agreement, dated July 18, 1997, by
and among AAPC, Richard L. Owens, Richard L. Owens, Jr., Dennis M. Owens,
Raymond E. Kelly and Brian R. DeSollar.
"Underwritten registration or underwritten offering" means a
registration in which securities of AAPC are sold by or to an underwriter for
offering or reoffering to the public.
2. SECURITIES SUBJECT TO THIS AGREEMENT.
(a) Registrable Securities. The securities entitled to the benefits of
this Agreement are the Registrable Securities.
(b) Holders of Registrable Securities. A Person is deemed to be a
"Holder" of Registrable Securities whenever such Person is the beneficial owner
of Registrable Securities. AAPC is entitled to treat the record holder of
Registrable Securities as beneficial owner of Registrable Securities unless
otherwise notified by such holder.
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3. PIGGYBACK REGISTRATION.
(a) Right to Include Registrable Securities. If at any time AAPC
proposes to register any of its equity securities (other than a registration
effected solely to implement an employee benefit plan, a transaction to which
Rule 145 promulgated under the Securities Act is applicable or a transaction
eligible to be registered on Form S-4 or any successor form) under the
Securities Act, whether or not for its own account, and there are Transfer
Restricted Securities outstanding which, at such time, cannot be sold under Rule
144(k) (or any similar provision then in force), then AAPC shall give written
notice of such proposed filings to the Holders of such Transfer Restricted
Securities at least 20 business days before the anticipated filing date. Such
notice shall offer such Holders the opportunity to register such amount of
Transfer Restricted Securities as each such Holder may request (a "Piggyback
Registration"). Subject to the provisions of Section 3(b) below, AAPC shall
include in each such Piggyback Registration all Transfer Restricted Securities
with respect to which AAPC has received written requests for inclusion therein
within 15 business days after notice has been duly given to the applicable
Holder. The Holder of Transfer Restricted Securities shall be permitted to
withdraw all or any part of the Transfer Restricted Securities from a Piggyback
Registration at any time prior to the effective date of such Piggyback
Registration.
(b) Priority on Piggyback Registration. AAPC shall use its reasonable
efforts to cause the managing underwriter of a proposed underwritten offering to
permit Holders of Transfer Restricted Securities requested to be included in the
registration for such offering to include such Transfer Restricted Securities in
such offering on the same terms and conditions as any other securities included
therein. Notwithstanding the foregoing, if the managing underwriter of such
offering advises that the number of securities such Holders, AAPC and any other
persons or entities having registration rights intend to include in such
offering would have a material adverse impact on the offering, then the amount
of Transfer Restricted Securities and Other Shares to be offered for the account
of Holders of Transfer Restricted Securities and sought to be registered by
Other Shareholders shall be reduced pro rata to the extent necessary (subject to
the rights of the Thermetic Holders and AAP Holdings, Inc.) to reduce the
aggregate amount of Transfer Restricted Securities to the aggregate number
recommended by the managing underwriter.
4. HOLD-BACK AGREEMENT. Each Holder whose Registrable Securities are
covered by a Registration Statement filed pursuant to Section 3 hereof agrees,
if requested by the managing underwriter in an underwritten offering, not to
effect any public sale or distribution of securities of the same class as the
securities included in such Registration Statement, including a sale pursuant to
Rule 144 under the Securities Act (except as part of such underwritten
registration), during the 10-day period prior to, and during the period of such
duration as may be determined by AAPC and the managing underwriter, beginning on
the closing date of each underwritten offering made pursuant to such
Registration Statement.
5. REGISTRATION PROCEDURES.
In connection with AAPC's obligations to file Registration Statements
pursuant to Section 3 hereof, AAPC will use its reasonable efforts to effect
such registration to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto AAPC will as expeditiously as reasonably possible:
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(a) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement, and such supplements to the
Prospectus, as may be reasonably requested by any holder of Registrable
Securities or any underwriter of Registrable Securities or as may be required by
the rules, regulations or instructions applicable to the registration form
utilized by AAPC or by the Securities Act or rules and regulations thereunder
necessary to keep the Registration Statement effective for a period sufficient
to permit the distribution of the Registrable Securities as provided in such
Registration Statement and cause the Prospectus as so supplemented to be filed
pursuant to Rule 424 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 such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(b) notify the selling holders of Registrable Securities and the
managing underwriters, if any, promptly, and (if requested by any such Person)
confirm such advice in writing;
(i) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same
has become effective;
(ii) of any request by the SEC for amendments or supplements
to the Registration Statement or the Prospectus or for additional
information;
(iii) of the issuance by the SEC of any stop order suspending
the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose; and
(iv) of the receipt by AAPC of any notification with respect
to the suspension of the qualification of the Registrable Securities
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
(c) if requested, furnish, without charge, to (i) counsel to the
selling holders of Registrable Securities and each managing underwriter, at
least one signed copy of the Registration Statement and (ii) each selling holder
of Registrable Securities, at least one conformed copy of the Registration
Statement, and, with respect to copies furnished pursuant to both clauses (i)
and (ii) hereof, any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits (including those incorporated by reference);
(d) deliver to each selling holder of Registrable Securities and the
underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such Persons may reasonably request;
(e) prior to any public offering of Registrable Securities, register or
qualify or reasonably cooperate with the selling holders of Registrable
Securities, the underwriters, if any, and their respective counsel in connection
with the registration or qualification of such Registrable Securities for offer
and sale under the securities or blue sky laws of such jurisdictions as any
seller or underwriter reasonably requests in writing and do any and all other
acts or things necessary or
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advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by Registration Statement; provided that AAPC will not be
required to qualify generally to do business in any jurisdiction where it is not
then so qualified or to take any action which would subject it to general
service of process in any such jurisdiction where it is not then so subject;
(f) reasonably cooperate with the selling holders of Registrable
Securities and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold and not bearing any restrictive legends; and enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters may request at least two business days prior to any sale
of Registrable Securities to the underwriters;
(g) reasonably cooperate with the selling holders of Registrable
Securities and the managing underwriter, if any, to facilitate the registration
of the Registrable Securities covered by the Registration Statement to be
registered with, and the approval thereof by, such other governmental agencies
or authorities as may be necessary to enable the seller or sellers thereof or
the underwriters, if any, to consummate the disposition of such Registrable
Securities; and
(h) use its reasonable efforts to cause all Registrable Securities
covered by the Registration Statement to be listed on each securities exchange
or quotation system on which similar securities issued by AAPC are then listed,
if requested by the holders of a majority in aggregate principal amount of such
Registrable Securities or the managing underwriters, if any.
6. REGISTRATION EXPENSES. All expenses incident to AAPC's performance of or
compliance with this Agreement, including without limitation:
(a) all registration and filing fees (including with respect to filings
required to be made with the NASD);
(b) fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of AAPC's counsel in connection
with blue sky qualifications of the Registrable Securities and determination of
their eligibility for investment under the laws of such jurisdictions as the
managing underwriter or holders of a majority in principal amount of the
Registrable Securities being sold may reasonably designate):
(c) printing, messenger, telephone and delivery expenses;
(d) fees and disbursements of counsel for AAPC, counsel for the
underwriters and not more than one collective counsel for the selling holders of
the Registrable Securities;
(e) fees and disbursements of all independent certified public
accountants of AAPC (including the expenses of any special audit necessary to
satisfy the requirements of the Securities Act and any "cold comfort" letters
required by or incident to such performance);
(f) fees and disbursements of underwriters as reasonably approved by
AAPC (excluding discounts, commissions or fees of underwriters, selling brokers,
dealer managers or similar securities industry professionals relating to the
distribution of the Registrable Securities or
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legal expenses of such underwriter or any other Person other than AAPC, the
underwriters and, subject to the limitation on the number of counsel set forth
in subparagraph (d) above, for the selling holders of the Registerable
Securities);
(g) fees and expenses of other Persons retained by AAPC; and
(h) filing fees and expenses associated with any NASD filing required
to be made in connection with the Registration Statement, including, if
applicable, the fees and expenses of any "qualified independent underwriter"
(and its counsel) that is required to be retained in accordance with the rules
and regulations of the NASD;
(all such expenses being herein called "Registration Expenses") will be borne by
AAPC regardless of whether the Registration Statement becomes effective.
AAPC will, 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, the fees and
expenses incurred in connection with the listing of the securities to be
registered on each securities exchange or quotation system on which similar
securities issued by AAPC are then listed, and the fees and expenses of any
Person, including special experts, retained by AAPC.
7. INDEMNIFICATION.
(a) Indemnification by AAPC. AAPC agrees to indemnify, defend and hold
harmless each holder of Registrable Securities, its officers, directors,
employees and Agents and each Person who controls such holder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
(each such person being sometimes hereinafter referred to as an "Indemnified
Holder") from and against all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and legal expenses) arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or 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 as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any such untrue statement or omission or
allegation thereof based upon information furnished in writing to AAPC by such
holder expressly for use therein; provided, however, that AAPC shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any preliminary
prospectus if (i) such holder failed to send or deliver a copy of the Prospectus
with or prior to the delivery of written confirmation of the sale of Registrable
Securities and (ii) the Prospectus would have corrected such untrue statement or
omission in all material respects; and provided further, that AAPC shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission in the Prospectus, if
such untrue statement or alleged untrue statement, omission or alleged omission
is corrected in all material respects in an amendment or supplement to the
Prospectus and if, having previously been furnished by or on behalf of AAPC with
copies of the Prospectus as so amended or
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supplemented, such holder thereafter fails to deliver such Prospectus as so
amended or supplemented, prior to or concurrently with the sale of a Registrable
Security to the Person asserting such loss, claim, damage, liability or expense
who purchased such Registrable Security which is the subject thereof from such
holder. This indemnity will be in addition to any liability which AAPC may
otherwise have. AAPC will also indemnify underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, their officers, directors and employees and each Person who
controls such Persons (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) to the same extent as provided above with
respect to the indemnification of the holders of Registrable Securities.
If any action or proceeding (including any governmental investigation
or inquiry) shall be brought or asserted against an Indemnified Holder in
respect of which indemnity may be sought from AAPC, such Indemnified Holder
shall promptly notify AAPC in writing, and AAPC may assume the defense thereof
with counsel mutually satisfactory to AAPC and the Indemnified Holder. Such
Indemnified Holder shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be the expense of such Indemnified Holder unless the named
parties to any such action or proceeding (including any impleaded parties)
include such Indemnified Holder and AAPC, and such Indemnified Holder shall have
been advised by counsel that there may be one or more legal defenses available
to such Indemnified Holder which are different from or additional to those
available to AAPC (in which case, if such Indemnified Holder notifies AAPC in
writing that it elects to employ separate counsel at the expense of AAPC, AAPC
shall not have the right to assume the defense of such action or proceeding on
behalf of such Indemnified Holder, it being understood, however, that AAPC shall
not, in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys at any
time for such Indemnified Holder and any other Indemnified Holders, which firm
shall be designated in writing by such Indemnified Holders). AAPC shall not be
liable for any settlement of any such action or proceeding effected without its
written consent, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such action or proceeding, AAPC agrees to
indemnify and hold harmless such Indemnified Holders from and against any loss
or liability by reason of such settlement or judgment. Any amounts advanced to
an Indemnified Holder for expenses for which the Indemnified Holder is
ultimately determined by a court of competent jurisdiction not to be entitled to
indemnity shall be repaid immediately to AAPC.
(b) Indemnification by Holder of Registrable Securities. Each holder of
Registrable Securities agrees to indemnify and hold harmless AAPC, its
respective directors and officers and each Person, if any, who controls AAPC
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act and any other Person ("Other Person") selling securities in a
Registration Statement including Shares of such holder, and such Other Person's
directors and officers, and each Person, if any, who controls such Other Person
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from AAPC to such
holder, but only with respect to information relating to such holder furnished
in writing by such holder expressly for use in any Registration Statement or
Prospectus, or any amendment or supplement thereto, or any preliminary
prospectus. If any action or proceeding shall be brought against AAPC, any Other
Person or their respective directors,
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officers, employees, agents or any controlling person, in respect of which
indemnity may be sought against a holder of Registrable Securities, such holder
shall have the rights and duties given AAPC, and AAPC, the Other Person and
their respective directors, officers, and controlling persons shall have the
rights and duties given to each holder by the preceding paragraph. AAPC and the
Other Persons shall be entitled to receive indemnities from underwriters,
selling brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided above with
respect to information so furnished in writing by such Persons specifically for
inclusion in any Prospectus or Registration Statement.
8. RULES 144 AND 144A.
AAPC covenants that it will file the reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder and AAPC will take such further action as any
holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 or Rule 144A under the Securities Act, as
such Rules may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any holder of
Registrable Securities, AAPC will deliver to such holder a written statement as
to whether it has complied with such information and requirements.
9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.
No Person may participate in any underwritten registration hereunder
unless such Person (a) agrees to sell such Person's securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
10. MISCELLANEOUS.
(a) No Other Agreements. AAPC will not after the date of this Agreement
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof. As of the date
hereof, AAPC is not a party to any other agreement pursuant to which a holder of
Common Stock has been granted registration rights with respect thereto of the
type granted pursuant to Section 3 of this Agreement, except its agreements with
(i) AAP Holdings, Inc., (ii) the Thermetic Holders, and (iii) Miller Capital
Corporation.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless AAPC has obtained the written consent of holders of greater than
50% of the then-outstanding Registrable Securities. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of holders of Registrable Securities whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other
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holders of Registrable Securities may be given by the holders of greater than
50% of Registrable Securities being sold.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier or air courier guaranteeing overnight delivery:
(i) if to a holder of Registrable Securities, at the most
current address given by such holder to AAPC in accordance with the
provisions of this Section 10(c), which address initially is:
Frank J. Amedia
496 South Briarcliff Drive
Canfield, Ohio 44406
telecopy: (330) ____-_____
(ii) if to AAPC, initially to:
American Architectural Products Corporation
Attn: Secretary
755 Boardman-Canfield Road
South Bridge Executive Center, Bldg. G West
Boardman, Ohio 44512
telecopy: (330) 965-9915
and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 10(c).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed: when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent holders of Registrable Securities.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing law. This agreement shall be governed by and construed in
accordance with the internal laws of the state of Ohio without regard to the
conflict of law rules thereof.
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(h) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(i) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by AAPC to Amedia. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
AMERICAN ARCHITECTURAL PRODUCTS CORPORATION
By: /s/ Richard L. Kovach
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Name: Richard L. Kovach
Title: Vice President and Chief Financial Officer
FRANK J. AMEDIA
/s/ Frank J. Amedia
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