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Exhibit 10.2
INVESTOR AND REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
CORRPRO INVESTMENTS, LLC
AND
CORRPRO COMPANIES, INC.
DATED AS OF MARCH 30, 2004
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TABLE OF CONTENTS
1.
Definitions.........................................................................................
1
2.
Registration
Rights.................................................................................
3
2.1.
Demand
Registrations.......................................................................
3
(a)
Timing of Demand
Registrations.......................................................
3
(b)
Underwritten Demand Registrations;
Priority.......................................... 4
(c)
Number of Demand
Registrations.......................................................
5
(d)
Withdrawal of
Registrable
Securities.................................................
5
2.2.
Piggyback
Registrations....................................................................
5
(a)
Request for Piggyback
Registration...................................................
5
(b)
Priority.............................................................................
5
(c)
Withdrawal of Registrable
Securities.................................................
5
(d)
Right to Terminate Piggyback
Registration............................................
6
2.3.
Hold-Back
Agreements.......................................................................
6
2.4.
Registration
Procedures....................................................................
6
(a)
Obligations of the
Company...........................................................
6
(b)
Holders' Obligation to Furnish
Information........................................... 9
2.5.
Registration
Expenses......................................................................
9
2.6.
Indemnification............................................................................
10
(a)
Indemnification by
Company...........................................................
10
(b)
Indemnification by Holder of Registrable
Securities.................................. 10
(c)
Indemnification
Procedures...........................................................
11
(d)
Contribution.........................................................................
11
(e)
Other
Indemnification................................................................
12
2.7.
Rule
144...................................................................................
12
2.8.
Other Registration Rights
Agreements.......................................................
12
2.9.
Adjustments Affecting Registrable
Securities...............................................
12
3. Information
Rights..................................................................................
12
4.
Observer
Rights.....................................................................................
13
5. AMEX
Listing........................................................................................
13
6.
Voting of Registrable
Securities....................................................................
13
7. Tax
Return Preparation
Expenses.....................................................................
13
8.
Board of
Directors..................................................................................
13
9.
Miscellaneous.......................................................................................
14
9.1.
Successors and
Assigns.....................................................................
14
9.2.
Governing
Law..............................................................................
14
9.3.
Execution..................................................................................
14
9.4.
Headings...................................................................................
14
9.5.
Notices....................................................................................
14
9.6.
Assignment and Additional
Parties..........................................................
15
9.7.
Amendment of Registration
Rights...........................................................
15
9.8.
Severability...............................................................................
15
9.9.
Entire
Agreement...........................................................................
15
9.10.
Delays or
Omissions........................................................................
16
9.11.
Interpretation.............................................................................
16
9.12.
Other
Remedies.............................................................................
16
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INVESTOR AND REGISTRATION RIGHTS AGREEMENT
THIS INVESTOR AND REGISTRATION RIGHTS AGREEMENT (this "Agreement")
is
made and entered into as of the 30th day of
March, 2004, by and between CorrPro
Investments, LLC, a Delaware limited
liability company ("Investor"), and Corrpro
Companies, Inc., an Ohio corporation (the
"Company"). Capitalized terms used
herein but not defined herein shall have
the meanings assigned to such terms in
that certain Securities Purchase Agreement,
dated as of December 15, 2003, by
and between the Company and Investor (the
"Purchase Agreement").
W I T N E S S E T H:
WHEREAS, the Company and Investor are parties to the Purchase
Agreement, which provides for, among other
things, the issuance and sale by the
Company, and the purchase by Investor, of
the Securities; and
WHEREAS, in order to induce Investor to enter into the Purchase
Agreement, the Company agreed to provide to
Investor the registration rights and
other rights set forth herein; and
WHEREAS, the execution of this Agreement is a condition to the
closing
of the transactions contemplated by this
Agreement and the other Transaction
Documents;
NOW, THEREFORE, in consideration of the premises, covenants and
agreements contained in this Agreement, and
for other good and valuable
consideration, the receipt and sufficiency
of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1.
Definitions. For the purposes of this Agreement, the following
terms
shall have the following meanings:
"Affiliate" shall mean, with respect to any Person, any other
Person
directly or indirectly controlling
(including, without limitation, all
directors, officers, partners and members
of such Person), controlled by, or
under direct or indirect common control
with, such Person.
"Articles of Incorporation" shall mean the Amended and Restated
Articles of Incorporation of the Company,
as amended from time to time.
"Board of Directors" shall mean the Board of Directors of the
Company,
including any committees thereof.
"Code of Regulations" shall mean the Amended and Restated Code
of
Regulations of the Company, as amended from
time to time.
"Common Stock" shall mean the common shares, without par value, of
the
Company.
"Demand Registration" shall have the meaning set forth in
Section
2.2(a)(i) hereof.
"Equity Securities" shall mean any capital stock or other
equity
interests of the Company, or any security
convertible into, or exercisable for,
any such capital stock or equity interests,
or any security carrying any
warrant, option or other right to subscribe
to or purchase any such capital
stock or equity interests.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as
amended, and the rules and regulations
promulgated thereunder.
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"Holder" shall mean any Person who is the record holder of, or
otherwise has the right to acquire,
Registrable Securities, including such
Person's respective successors and
assigns.
"Indemnified Holder" shall mean any Holder of Registrable
Securities,
whose Registrable Securities are included
in a Registration pursuant to this
Agreement, any partner, member, officer,
director, employee, advisor or agent of
any such Holder and any other Person who
controls any such Holder within the
meaning of the Securities Act or the
Exchange Act.
"Indemnified Party" shall have the meaning set forth in Section
2.6(c)
hereof.
"Indemnifying Party" shall have the meaning set forth in Section
2.6(c)
hereof.
"Initiating Holder" shall have the meaning set forth in Section
2.1(a)(i) hereof.
"Initial Preferred Shares" shall mean 13,000 shares of the Series
B
Preferred Stock.
"Investor" shall have the meaning set forth in the preamble
hereof.
"Losses" shall mean each and all of the following items: claims,
losses
(including, without limitation, losses or
earnings), liabilities (joint or
several), obligations, payments, damages
(actual or consequential), charges,
judgments, fines, penalties, amounts paid
in settlements, costs and expenses
(including, without limitation, interest
which may be imposed in connection
therewith, costs and expenses of
investigation, actions, suits, proceedings,
demands, assessments and reasonable fees,
expenses, disbursements of counsel,
consultants and other experts).
"Original Warrant" shall mean that certain Warrant, dated as of
March
30, 2004, issued by the Company to
Investor.
"Person" shall mean an individual, corporation, limited
liability
company, partnership, trust, incorporated
or unincorporated organization, joint
venture, joint stock company, or a
government or any agency or political
subdivision thereof or other entity of any
kind.
"Piggyback Notice" shall have the meaning set forth in Section
2.2(a)
hereof.
"Piggyback Registration" shall have the meaning set forth in
Section
2.2(a) hereof.
"Prior Registrable Securities" shall mean the "Registrable
Securities,"
as such term is defined in each of the
Prior Registration Rights Agreements.
"Prior Registration Rights Agreements" shall mean (i) that
certain
Registration Rights Agreement, dated as of
September 23, 2002, by and between
the Company and Bank One, NA and (ii) that
certain Registration Rights
Agreement, dated as of September 23, 2002,
by and between the Company and The
Prudential Insurance Company of
America.
"Prior Rights Holders" shall mean the holders of the Prior
Registrable
Securities.
"Purchase Agreement" shall have the meaning set forth in the
recitals
herein.
"Prospectus" shall mean the prospectus included in any
Registration
Statement, as supplemented from time to
time by any and all prospectus
supplements thereto, as amended from time
to time by any and
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all post-effective amendments thereto, and
including all documents, information
and/or other materials incorporated by
reference therein.
"Registrable Securities" shall mean (i) the Warrant Shares, (ii)
any
securities issued as (or issuable upon the
conversion or exercise of any
warrant, right, option or other security
that is issued as) a dividend or other
distribution with respect to, or in
exchange for or in replacement of, the
Warrant Shares and (iii) any securities
issued or issuable in respect of any
Warrant Shares in connection with a merger,
consolidation, recapitalization,
reorganization or otherwise; provided,
however, that the term "Registrable
Securities" shall not include any Warrant
Shares or other shares of Common Stock
that are sold by a Holder to the public
pursuant to a Registration Statement or
Rule 144 under the Securities Act.
"Registration" shall mean any Demand Registration or Piggyback
Registration.
"Registration Expenses" shall have the meaning set forth in Section
2.5
hereof.
"Registration Statement" shall mean a registration statement filed
by
the Company with the SEC pursuant to the
Securities Act and shall include,
without limitation, all financial
statements and schedules required by the
Securities Act to be filed with such
registration statement, the Prospectus
included in such registration statement,
any amendments (including
post-effective amendments), supplements and
exhibits to such registration
statement, and all documents, information
and/or other materials incorporated by
reference into such registration
statement.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and
the rules and regulations promulgated
thereunder.
"SEC" shall mean the Securities and Exchange Commission, or any
successor agency thereto.
"Series B Preferred Stock" shall mean the Series B Cumulative
Redeemable Voting Preferred Stock, without
par value, of the Company.
"Transaction Documents" shall mean, collectively, this Agreement,
the
Purchase Agreement, the Securities, the
Warrant Agreement, the Services
Agreement, the Amended Articles, the
Amended Regulations and all other
agreements executed pursuant to or in
connection herewith or therewith, as such
documents may be amended from time to
time.
"Warrant" shall mean the Original Warrant and all warrants issued
upon
transfer, division or combination of, or in
substitution of, the Original
Warrant or any other such warrants.
"Warrant Shares" shall mean the shares of Common Stock issued
or
issuable upon exercise of, or in respect
of, the Warrant.
2.
Registration Rights.
2.1.
Demand Registrations.
(a) Requests
for Demand Registration.
(i) At any
time and from time to time after the
date hereof, the Holders of at least thirty
percent (30%) of the outstanding
Registrable Securities (the "Initiating
Holders") may make a written request for
registration, whether or not such
registration involves an underwritten
offering, under the Securities Act of all
or any part of such Holder's
Registrable Securities (a "Demand
Registration"), which
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request shall specify the amount of
Registrable Securities to be registered and
the intended method or methods of
disposition thereof.
(ii)
Promptly after receipt by the Company of any
request for a Demand Registration from the
Initiating Holders pursuant to this
Section 2.1 (and in any event within five
(5) days after such receipt), the
Company shall give written notice of such
request to all other Holders of
Registrable Securities from whom written
notice has not been received and shall,
subject to the provisions of this Section
2.1, include in such Demand
Registration all Registrable Securities
with respect to which the Company
receives written requests (each request
specifying the amount of Registrable
Securities to be registered under the
Securities Act and the intended method or
methods of disposition thereof) for
inclusion therein within ten (10) days after
the date on which the Company delivers its
notice pursuant to the preceding
sentence.
(iii) As
promptly as is reasonably practicable,
but in no event later than sixty (60) days,
after receiving any request for a
Demand Registration from the Initiating
Holders pursuant to this Section 2.1,
the Company shall prepare and file with the
SEC a Registration Statement
registering all Registrable Securities
requested to be included in such Demand
Registration and shall use its best efforts
to cause such Registration Statement
to become effective as promptly as
practicable after the date on which such
Registration Statement was filed with the
SEC. The Company shall cause such
Registration Statement to remain
continuously effective, supplemented, amended
and current as required by, and subject to,
the provisions of Section 2.4 hereof
and in conformity with the requirements of
this Agreement, the Securities Act
and the policies, rules and regulations of
the SEC as announced from time to
time, until the date on which all
Registrable Securities covered by such
Registration Statement shall have been
sold. If requested by the Initiating
Holders, such Demand Registration shall
provide for the resale, from time to
time, of such Registrable Securities on a
delayed or continuous basis pursuant
to Rule 415 under the Securities Act.
(b)
Underwritten Demand Registrations; Priority.
(i) If in
connection with a Demand Registration
the Initiating Holders desire to distribute
their Registrable Securities by
means of an underwritten offering, they
shall so advise the Company as part of
the request delivered to the Company
pursuant to Section 2.2(a) hereof. In such
event, the right of any Holder to include
its Registrable Securities in such
underwritten Demand Registration shall be
conditioned upon such Holder's
participation in such underwritten Demand
Registration and the inclusion of such
Holder's Registrable Securities therein.
Any Holder who proposes to offer and
sell its Registrable Securities pursuant to
such underwritten Demand
Registration shall enter into an
underwriting agreement in customary form
(including all questionnaires, powers of
attorney, indemnities or other
documents required by such underwriting
agreement) with the managing underwriter
or underwriters selected for such
underwritten Demand Registration pursuant to
Section 2.2(b)(ii) below.
(ii)
The managing underwriter or underwriters of
any underwritten public offering of
Registrable Securities covered by a Demand
Registration shall be selected by the
Holders of a majority of the number of
outstanding Registrable Securities to be
included in such Demand Registration.
(iii) If
the managing underwriter or underwriters
for an underwritten Demand Registration
shall advise the Company that, in its
opinion, the inclusion of the amount of
Registrable Securities to be sold for
the Holders thereof would create a
substantial risk that the proceeds or price
per share to be derived from such Demand
Registration will be reduced to a price
range that is below a price range
reasonably acceptable to a majority of the
Holders of Registrable Securities requested
to be included in such Demand
Registration, then the amount of
Registrable Securities to be included in such
Demand Registration shall be allocated (x)
first, to the Initiating Holders, (y)
second, to all remaining Holders who did
not initiate such Demand Registration
on a pro rata basis, and (z) third, to any
other Person on a pro rata basis.
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(c) Number of
Demand Registrations. The Company shall not
be required to effect more than a total of
three (3) Demand Registrations
pursuant to this Section 2.1. For purposes
of this Section 2.1, a Demand
Registration shall not be counted as one
(1) of the three (3) Demand
Registrations under this Section 2.1 (i)
unless the Registration Statement
covering the Registrable Securities that
are the subject of such Demand
Registration shall have become effective
under the Securities Act and is
maintained effective in accordance with the
requirements set forth in Section
2.1(a) hereof, (ii) if, after such
Registration Statement has become effective
under the Securities Act, such Demand
Registration shall be interfered with by
any stop order, injunction or other order
or requirement of the SEC or other
governmental agency or court for any reason
so as to materially interfere with
the distribution of Registrable Securities
thereunder, (iii) if the conditions
to closing specified in the purchase
agreement or underwriting agreement, if
any, entered into in connection with such
Demand Registration are not satisfied
or waived, or (iv) if the Holders of
Registrable Securities requested to be
included in such Demand Registration are
not able to register at least fifty
percent (50%) of the Registrable Securities
requested to be included therein .
(d) Withdrawal
of Registrable Securities. The Initiating
Holders shall be entitled to withdraw a
request for a Demand Registration by
providing written notice thereof to the
Company, and such request shall not be
counted as a Demand Registration for
purposes of this Section 2.1 if the
Initiating Holders shall have paid all
Registration Expenses incurred in
connection therewith.
2.2.
Piggyback Registrations.
(a) Request
for Piggyback Registration. If at any time
after the date hereof the Company proposes
to file a Registration Statement
(other than a Registration Statement on
Forms S-4 or S-8 or any successor forms
thereto and other than a Registration
Statement filed by the Company pursuant to
Section 2.1 hereof) with the SEC to
register an offering of Equity Securities or
any other securities for its own account or
for the account of any other Person
(a "Piggyback Registration"), the Company
shall each such time promptly (but in
any event not less than twenty (20) days
prior to the date on which the Company
proposes to file such Registration
Statement with the SEC) provide written
notice thereof to each Holder of
Registrable Securities (i) describing the terms
and conditions of such Piggyback
Registration, (ii) identifying the form of
Registration Statement that the Company
proposes to file in connection with such
Piggyback Registration and (iii) offering
to include in such Piggyback
Registration all Registrable Securities
held by each such Holder (a "Piggyback
Notice"). The Company shall include in such
Piggyback Registration all
Registrable Securities for which the
Company has received from the Holders
thereof for inclusion therein written
requests within thirty (30) days of the
date on which such Piggyback Notice was
given by the Company. Notwithstanding
anything to the contrary contained herein,
no Piggyback Registration shall be
deemed to constitute a Demand
Registration.
(b) Priority.
If the managing underwriter or underwriters
for a Piggyback Registration involving an
underwritten offering in which
Registrable Securities are proposed to be
included pursuant to this Section 2.2
shall advise the Company that, in its
opinion, the inclusion of the amount of
Registrable Securities to be sold for the
account of Holders would (i) create a
substantial risk that the proceeds or price
per share to be derived from such
Piggyback Registration will be materially
reduced or (ii) materially and
adversely affect such Piggyback
Registration in any other respect, then the
number of securities to be included in such
Piggyback Registration shall be
allocated (1) first, to the Company, (2)
second, to the Holders and, if
applicable, the Prior Rights Holders on a
pro rata basis, and (3) third, to any
other Person on a pro rata basis.
(c) Withdrawal
of Registrable Securities. If, as a result
of the proration provisions of Section
2.2(b), any Holder shall not be entitled
to include all of such Holder's Registrable
Securities in a Piggyback
Registration that such Holder has requested
be included, such Holder may elect
to withdraw its Registrable Securities from
such Piggyback Registration;
provided, however, that such withdrawal
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election shall be irrevocable and, after
making such withdrawal election, a
Holder shall no longer have any right to
include Registrable Securities in the
Piggyback Registration as to which such
withdrawal election was made.
(d) Right to
Terminate Piggyback Registration. If at any
time prior to the date on which the
Registration Statement for a Piggyback
Registration is declared effective by the
SEC the Company shall determine for
any reason to terminate such Piggyback
Registration, the Company shall provide
written notice of such determination to
each Holder of Registrable Securities
and, thereupon, shall be relieved of its
obligations to register any Registrable
Securities in connection with such
Piggyback Registration, without prejudice,
however, to the rights of Holders of
Registrable Securities to request that such
terminated Piggyback Registration be
effected as a Demand Registration;
provided, however, that the Company shall
pay all Registration Expenses incurred
by a Holder of Registrable Securities or
otherwise in connection with such
terminated Piggyback Registration.
2.3.
Hold-Back Agreements. In connection with any underwritten
offering made pursuant to a Demand
Registration, the Company shall not, if
requested in writing by the managing
underwriter or underwriters for such
underwritten offering, effect any public
sale or distribution of Equity
Securities for its own account during the
period beginning on the 30th day prior
to and ending on the 120th day after the
effective date of any such underwritten
offering.
2.4.
Registration Procedures.
(a)
Obligations of the Company. Whenever the Company is
required by the provisions of this
Agreement to cause Registrable Securities to
be registered under the Securities Act, the
Company shall:
(i) prepare
and file with the SEC as soon as
practicable an appropriate Registration
Statement with respect to such
Registrable Securities, use its best
efforts to cause such Registration
Statement to become effective under the
Securities Act as soon as practicable,
and to keep such Registration Statement
continuously effective, supplemented,
amended and current for the time period
required by this Agreement, to the
extent permitted under the Securities Act,
or until the distribution
contemplated in such Registration Statement
is completed; provided, however,
that as soon as reasonably practicable but
in no event later than three (3)
Business Days before filing such
Registration Statement, any related Prospectus
or any amendment or supplement thereto,
other than any amendment or supplement
made solely as a result of incorporation by
reference of documents filed with
the SEC subsequent to the filing of such
Registration Statement, the Company
shall furnish to the Holders of Registrable
Securities covered by such
Registration Statement, their counsel and
the underwriters, if any, copies of
all such documents proposed to be filed
with the SEC, which Holders, counsel and
underwriters shall be afforded a reasonable
opportunity to review such documents
and comment thereon;
(ii)
prepare and file with the SEC such
amendments and post-effective amendments to
the applicable Registration
Statement as may be necessary to keep such
Registration Statement effective for
the applicable period set forth in Sections
2.1 or 2.2 hereof, as the case may
be; cause the Prospectus to be supplemented
by any required Prospectus
supplements, and as so supplemented to be
filed pursuant to Rule 424 under the
Securities Act, and to comply fully with
Rules 424, 430A and 462, as applicable,
under the Securities Act in a timely
manner; and comply with the provisions of
the Securities Act with respect to the
disposition of all securities covered by
such Registration Statement until such time
as all Registrable Securities have
been disposed of and in accordance with the
intended method or methods of
distribution set forth in such Registration
Statement or supplement to such
Prospectus;
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(iii)
promptly notify the selling Holders of
Registr
