Exhibit 10.17
================================================================================
NUCO2 INC.
and
CHASE CAPITAL INVESTMENTS, L.P.
---------------
PREFERRED STOCK PURCHASE AGREEMENT
Dated as of May 15, 2000
---------------
================================================================================
TABLE OF CONTENTS
Page
----
Parties ......................................................................1
Recitals ......................................................................1
Section 1. Definitions, Accounting Terms and Determinations...................1
1.01 Definitions.....................................................1
1.01 Accounting Terms and Determinations.............................9
Section 2. Purchase and Sale of Preferred Stock...............................9
2.01 Authorization and Issuance of Preferred
Shares and Common Stock........................................9
2.02 Sale of Preferred Shares; The Closing...........................9
2.03 Initial Holder Representations, Warranties and Agreements......10
2.04 Securities Act Compliance......................................10
2.05 Use of Proceeds................................................10
Section 3. Representations and Warranties of the Company.....................10
3.01 Existence......................................................11
3.02 No Breach......................................................11
3.03 Corporate Action...............................................11
3.04 Approvals......................................................11
3.05 Investment Company Act.........................................12
3.06 Public Utility Holding Company Act.............................12
3.07 Capitalization.................................................12
3.08 Private Offering...............................................12
3.09 SEC Documents; Financial Statements............................12
3.10 Provided Information...........................................13
3.11 Material Adverse Change........................................13
3.12 Litigation.....................................................13
3.13 Permits and Licenses...........................................14
3.14 Properties.....................................................14
3.15 Environmental Matters..........................................14
3.16 Compliance with Laws and Agreements............................14
3.17 Taxes..........................................................14
3.18 ERISA..........................................................14
3.19 Subsidiaries...................................................15
3.20 No Burdensome Restrictions.....................................15
Section 4. Transfers Generally; Securities Act Compliance....................15
4.01 Transfers Generally............................................16
4.02 Transfers of Restricted Securities Pursuant
to Registration Statements and Rule 144, Etc..................16
(i)
4.03 Notice of Certain Transfers....................................16
4.04 Restrictive Legend.............................................16
4.05 Termination of Restrictions....................................17
Section 5. Additional Provisions Relating to Transfers.......................17
5.01 Disposition of Securities......................................17
5.02 Repurchase of Common Stock.....................................18
5.03 Transfer, Division and Combination.............................18
Section 6. Notice to Holders of Preferred Shares.............................18
Section 7. Reservation and Authorization of Common Stock.....................19
Section 8. Stock and Preferred Shares Transfer Books.........................19
Section 9. Holders' Special Rights...........................................19
9.01 Replacement of Instruments.....................................19
9.02 Restrictions on Certain Action.................................20
9.03 Inspection Rights..............................................20
9.04 Board Attendance...............................................20
Section 10. Registration.....................................................20
10.01 Notice.20
10.02 Proration......................................................22
10.03 Registration Procedures........................................23
10.04 Holdback on Sales..............................................25
10.05 Expenses.......................................................25
10.06 Indemnification................................................26
10.07 No Other Registration Rights...................................28
10.08 Rule 144.......................................................28
Section 11. Miscellaneous....................................................28
11.01 Waiver.........................................................28
11.02 Notices........................................................28
11.03 Office of the Company..........................................28
11.04 Expenses, Transfer Taxes and Other Charges.....................29
11.05 Amendments, Etc................................................29
11.06 Successors and Assigns.........................................30
11.07 Survival.......................................................30
11.08 Captions.......................................................30
11.09 Counterparts...................................................30
(ii)
11.10 Governing Law; Jurisdiction; Consent to Service of Process.....30
11.11 Severability...................................................31
11.12 Entire Agreement...............................................31
11.13 No Third Party Beneficiary.....................................31
11.14 Waiver of Jury Trial...........................................31
SCHEDULE 1 - Authorized and Outstanding Capital Stock
SCHEDULE 2 - Schedule of Warrants and Options
(iii)
PREFERRED STOCK PURCHASE AGREEMENT
.PREFERRED STOCK PURCHASE AGREEMENT dated as of May 15, 2000
between: NuCo2 Inc., a corporation duly organized and validly existing under the
laws of the State of Florida (the "Company") and Chase Capital Investments,
L.P., a limited partnership duly organized and validly existing under the laws
of the State of Delaware ( "Purchaser").
WHEREAS, Purchaser desires to purchase from the Company, and the
Company desires to sell to Purchaser, an aggregate of 5,000 shares of 8%
cumulative, convertible preferred stock, no par value, of the Company, in the
manner hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Section 1. Definitions, Accounting Terms and Determinations.
1.01 Definitions. Except as expressly provided herein, the following
terms shall have the following meanings (all terms in this Section 1 or in other
provisions of this Agreement in the singular to have the same meanings in the
plural and vice versa):
"1995 Stock Option Plan" shall mean the Company's 1995 Stock Option
Plan for employees as the same may be amended from time to time.
"Additional Shares of Common Stock" shall mean all shares (including
treasury shares) of Common Stock issued or sold by the Company on or after the
date hereof, other than (i) the shares of Common Stock described as being issued
and outstanding in Section 3.07 hereof and (ii) the Option Stock and Options
listed on Schedule 2 hereto.
"Affiliate" shall have the meaning assigned thereto in Rule 12b-2 of
the Exchange Act. Notwithstanding the foregoing, (a) no individual shall be
deemed to be an Affiliate of a corporation solely by reason of his or her being
an officer or director of such corporation, and (b) Purchaser (or any of its
Affiliates) shall not be an Affiliate of the Company.
"Board" shall mean the Board of Directors of the Company.
"BOC Warrant" shall mean the warrant to acquire up to 1,000,000
shares of Common Stock dated May 1, 1997 from the Company in favor of The BOC
Group, Inc.
"Business Day" shall mean any day on which commercial banks are not
authorized or required to close in New York City.
"Certificate of Designations" shall mean the articles of amendment
relating to the designations, preferences and rights of the Preferred Shares
filed in connection with the issuance of the Preferred Shares pursuant to this
Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commission" shall mean the Securities and Exchange Commission or
any other similar or successor agency of the Federal government with primary
responsibility for administering the Securities Act.
"Common Stock" shall mean the Company's authorized Common Stock, par
value $.001 per share, and any stock into which such Common Stock may thereafter
be changed, and also shall include stock of the Company of any other class
(including, without limitation, any future class(es) of such Common Stock),
which is not preferred as to dividends or assets over any class of stock of the
Company and which is not subject to redemption.
"Company" shall have the meaning assigned to such term in the first
paragraph of this Agreement, and shall include any successors and permitted
assigns of the Company.
"Convertible Securities" shall mean evidences of indebtedness,
shares of stock or other securities which are convertible into or exchangeable
or exercisable for Additional Shares of Common Stock, either immediately or upon
the arrival of a specified date or the happening of a specified event.
"Demand Notice" shall have the meaning assigned to such term in
Section 10.01 hereof.
"Demand Registration" shall have the meaning assigned to such term
in Section 10.01 hereof.
"Directors' Stock Option Plan" shall mean the Company's Directors'
Stock Option Plan for non-employee directors as the same may be amended from
time to time.
"Environmental Laws" means all Federal, state, local and foreign
statutes and codes or regulations, rules or ordinances issued, promulgated, or
approved thereunder, now or hereafter in effect (including, without limitation,
those with respect to asbestos or asbestos containing material), relating to
pollution or protection of the environment and relating to public health and
safety, relating to (i) emissions, discharges, releases or threatened releases
of Hazardous Materials, into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface strata), or
(ii) the manufacture, processing, distribution, use generation, treatment,
storage, disposal, transport or handling of any Hazardous Materials, and (iii)
underground storage tanks and related piping, and emissions, discharges and
releases or threatened releases therefrom, such Environmental Laws to include,
without limitation, (i) the Clean Air Act (42 U.S.C.ss.7401 et seq.), (ii) the
Clean Water Act (33 U.S.C.ss.1251 et seq.), (iii) the Resource Conservation and
Recovery Act (42 U.S.C.ss.6901 et seq.), (iv) the Toxic Substances Control Act
(15 U.S.C.ss.2601 et seq.) and (v) CERCLA, each as amended.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of
2
the Company or any Subsidiary directly or indirectly resulting from or based
upon (i) violation of any Environmental Law, (ii) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (iii)
exposure to any Hazardous Materials, (iv) the release or threatened release of
any Hazardous Materials into the environment or (v) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"Equity Rights" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including, without limitation, any stockholders' or voting trust
agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time and the rules and regulations promulgated
thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means: (i) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (ii)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (iii) the filing pursuant to Section 412(d) of the Code or Section
303(d) of ERISA of an application for a waiver of the minimum funding standard
with respect to any Plan; (iv) the incurrence by the Company or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (v) the receipt by the Company or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (vi)
the incurrence by the Company or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (vii) the receipt by the Company or any ERISA Affiliate
of any notice, or the receipt by any Multiemployer Plan from the Company or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"ERISA Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Company or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
3
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time or any replacement act.
"Financial Statements" shall have the meaning assigned to such term
in Section 3.09 hereof.
"GAAP" shall mean generally accepted accounting principles applied
on a consistent basis.
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to any such government.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Holder" shall mean any Person who acquires Restricted Preferred
Shares pursuant to the provisions of this Agreement, including, without
limitation, Purchaser, any Affiliate of Purchaser, any Person who becomes a
party to this Agreement pursuant to Section 5.03 and an Affiliate of such Person
and any permitted transferees of any of the foregoing.
"Indemnified Party" shall have the meaning assigned to such term in
Section 10.06(c) hereof.
"Indemnifying Party" shall have the meaning assigned to such term in
Section 10.06(c) hereof.
"Information" shall have the meaning assigned to such term in
Section 3.10 hereof.
"IPO Warrants" shall mean the warrants to acquire an aggregate of
33,000 shares of Common Stock dated as of May 24, 1996 from the Company in favor
of First Analysis Securities Corporation, Xxxxx Xxxxx, Xxxxxxx Xxxxxxxxxxx,
Xxxxxxx Xxxxx, Xxxxx Xxxxx and Xxxx Xxxxxxxxxxx.
"Lien" shall mean any pledge, assignment, hypothecation, mortgage,
security interest, deposit arrangement, conditional sale or title retaining
contract, sale and leaseback transaction, financing statement filing, or any
other type of lien, charge, encumbrance or preferential arrangement.
"Majority Holders" shall mean Holders of a majority of the
Underlying Common Stock issued or issuable upon conversion of the Preferred
Shares. For purposes of giving notices
4
hereunder, Holders of Preferred Shares shall be deemed holders of Underlying
Common Stock issued upon the exercise thereof.
"Material Adverse Effect" means a material adverse effect on (i) the
business, assets, property, operations or condition, financial or otherwise, of
the Company and its Subsidiaries taken as a whole or (ii) the ability of the
Company to perform any of its obligations under this Agreement or the
transaction contemplated hereby.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA as to which the Company, any Subsidiary or any ERISA
Affiliate is obligated to make, has made, or will be obligated to make
contributions on behalf of participants who are or were employed by any of them.
"Option" shall mean any warrant, option or other right to subscribe
for or purchase Additional Shares of Common Stock or Convertible Securities,
including those listed on Schedule 2 hereto.
"Option Stock" shall mean shares of Common Stock not to exceed, in
the aggregate, 2,060,000 shares of Common Stock, issued or issuable in
accordance with the Stock Option Plans, provided that (i) in the case of the
1995 Stock Option Plan, the option exercise price at the time of such grant is
not less than 75% of the fair market value of such shares on the date of such
grant as reasonably determined in good faith by the Stock Option or other
administering Committee of the Board and (ii) the number of shares of Common
Stock specified above shall be adjusted as appropriate to reflect any stock
split, stock consolidation, subdivision or combination affecting the Common
Stock.
"Other Securities" shall mean any stock (other than Underlying
Common Stock) and other securities of the Company or any other Person (corporate
or otherwise) which a Holder at any time shall be entitled to receive, or shall
have received, upon conversion of the Preferred Shares held by such Holder, in
lieu of or in addition to Underlying Common Stock, or which at any time shall be
issuable or shall have been issued in exchange for or in replacement of
Underlying Common Stock or Other Securities received in an earlier exchange,
exercise or replacement of Underlying Common Stock.
"Participating Security" shall mean any security (other than Common
Stock) the rights of the holders of which are not limited to (i) a fixed sum or
percentage of liquidation preference or principal amount, (ii) a sum determined
by reference to a formula based on a published index of interest rates, (iii) an
interest rate publicly announced by a financial institution or a similar index
of interest rates in respect of interest or dividends or (iv) a fixed sum or
percentage of principal amount or liquidation preference in any distribution of
assets.
"Permitted Encumbrances" means:
(i) Liens imposed by law for taxes that are not yet due;
(ii) carriers', warehousemen's, mechanics', workmen's,
materialmen's, repairmen's, statutory landlord's and other like
Liens imposed by law, arising in
5
the ordinary course of business and securing obligations that are
not overdue by more than 60 days;
(iii) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and
other social security laws or regulations and Liens thereon;
(iv) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the
ordinary course of business;
(v) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business
of the Company or any Subsidiary;
(vi) deposits in connection with the prosecution or defense of any
claim in any court or before any administrative commission or
agency; and
(vii) Liens arising out of judgments or awards with respect to which
the Company or any Subsidiary at the time shall in good faith be
diligently prosecuting an appeal or proceedings for review and with
respect to which the Company or any of its Subsidiaries shall have
secured a stay of execution pending such appeal or proceedings for
review.
"Person" shall mean a corporation, an association, a limited
liability company, a partnership, a joint venture, an organization, a business,
an individual or a Government Authority.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Plan" means any employee benefit plan, program, arrangement,
practice or contract, maintained by or on behalf of the Company or an ERISA
Affiliate, which provides benefits or compensation to or on behalf of employees
or former employees, whether formal or informal, whether or not written,
including, but not limited to, the following types of plans:
(i) Executive Arrangements. Any bonus, incentive compensation, stock
option, deferred compensation, commission, severance, "golden parachute",
"rabbi trust", or other executive compensation plan, program, contract
arrangement or practice;
(ii) ERISA Plans. Any "employee benefit plan" as defined in ERISA,
including, but not limited to, any defined benefit pension plan, profit
sharing plan, money purchase pension plan, savings or thrift plan, stock
bonus plan, employee stock ownership plan, Multiemployer Plan, or any
plan, fund, program, arrangement or practice providing for
6
medical (including post-retirement medical), hospitalization, accident,
sickness, disability, or life insurance benefits; and
(iii) Other Employee Fringe Benefits. Any stock purchase, vacation,
scholarship, day care, prepaid legal services, severance pay or fringe
benefit plan, program, arrangement, contract or practice.
"Preferred Shares" shall mean the 8% cumulative, convertible
preferred stock, no par value, of the Company.
"Preferred Stock" shall mean, as to any Person, any capital stock of
such Person which is preferred as to dividends or assets over any other class of
any other stock of such Person.
"Projections" shall have the meaning assigned to such term in
Section 3.10 hereof.
"Purchased Shares" shall have the meaning assigned to such term in
Section 2.02(a).
"Purchaser" shall have the meaning assigned to such term in the
first paragraph of this Agreement.
"Regulation Y" shall mean Regulation Y promulgated by the Board of
Governors of the Federal Reserve System (12 C.F.R. 225) or any successor
regulation.
"Representative" shall have the meaning assigned to such term in
Section 9.04 of this Agreement.
"Restricted Certificate" shall mean a certificate for Common Stock,
Preferred Stock or Other Securities bearing the restrictive legend set forth in
Section 4.04 hereof.
"Restricted Preferred Shares" shall mean Preferred Shares evidenced
by a Restricted Certificate.
"Restricted Securities" shall mean Restricted Stock and Restricted
Preferred Shares.
"Restricted Stock" shall mean Common Stock evidenced by a Restricted
Certificate.
"Rule 144" shall mean Rule 144 as promulgated by the Commission
under the Securities Act and any successor provision thereto, all as the same
shall be in effect at the time.
"SEC Documents" shall have the meaning assigned to such term in
Section 3.09 hereof.
7
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the time or any replacement act.
"Seller" shall have the meaning assigned to such term in Section
10.01 hereof.
"Seller Notice" shall have the meaning assigned to such term in
Section 10.01 hereof.
"Shareholder" shall mean any Person who directly or indirectly owns
any shares of Common Stock of the Company.
"Stock Option Plans" shall mean the Company's 1995 Stock Option Plan
and the Company's Directors' Stock Option Plan.
"Stock Unit" shall mean one share of Common Stock, as such Common
Stock is constituted on the date hereof, and thereafter shall mean such number
of shares (including any fractional shares) of Common Stock and Other
Securities, cash or other property as shall result from the adjustments
specified in Section 6.
"Subsidiary" shall mean, for any Person, any corporation or other
entity of which at least a majority of the securities or other ownership
interests having by the terms thereof ordinary voting power to elect a majority
of the board of directors or other persons performing similar functions of such
corporation or other entity is at the time directly or indirectly owned or
controlled by such Person and/or one or more Subsidiaries of such Person.
"Tax" means, with respect to any Person, any Federal, state or
foreign tax, assessment, customs duties or other governmental charge, levy or
assessment (including any withholding tax) upon such Person or upon such
Person's assets, revenues, income or profits.
"transfer" shall mean any disposition of any Restricted Securities,
or of any interest in any thereof, which would constitute a sale thereof within
the meaning of the Securities Act.
"Transferred Purchased Share" shall have the meaning assigned to
such term in Section 5.03 hereof.
"Underlying Common Stock" shall mean the shares of Common Stock of
the Company issuable or issued upon the conversion of the Preferred Stock issued
by the Company, including any such Common Stock into which such Common Stock may
thereafter be changed.
"Warrant Agreement" shall mean the Warrant Agreement dated as of
October 31, 1997, as amended, by and among the Company and each of the investors
signatory thereto.
"Warrants" shall mean any warrant certificates issued by the Company
under the Warrant Agreement.
8
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
1.01 Accounting Terms and Determinations. Except as otherwise may be
expressly provided herein, all accounting terms used herein shall be
interpreted, and all certificates and reports as to financial matters required
to be delivered to the Holders hereunder and under the Preferred Shares shall be
prepared, in accordance with GAAP. All calculations made for purposes of
determining compliance with the terms of this Agreement and the Preferred Shares
shall (except as may be expressly provided herein) be made by application of
GAAP.
Section 2. Purchase and Sale of Preferred Stock.
2.01 Authorization and Issuance of Preferred Shares and Common
Stock. The Company has authorized: (a) the issue of the Preferred Shares for
issuance to Purchaser pursuant to this Agreement; and (b) the reservation for
issuance of such number of shares of its Common Stock as shall be issuable upon
conversion of the Preferred Shares.
2.02 Sale of Preferred Shares; The Closing.
(a) The Closing shall take place on the date hereof at the offices
of Milbank, Tweed, Xxxxxx & XxXxxx LLP at 10:00 a.m. local time. On the basis of
the representations, warranties, covenants and agreements, the Company agrees to
authorize, issue and sell to Purchaser on the date hereof, and Purchaser agrees
to subscribe for and purchase from the Company on the date hereof, 5,000
Preferred Shares (the "Purchased Shares") at the purchase price of $5,000,000.
(b) On the date hereof, the Company shall deliver to Purchaser:
(i) a single certificate for the Purchased Shares,
registered in the name of Purchaser;
(ii) evidence of filing the Certificate of Designations in
the state of Florida;
(iii) a legal opinion from counsel to the Company in form and
substance reasonably satisfactory to Purchaser;
(iv) a certificate, dated the date hereof and executed by
the Secretary of the Company, in form and substance
reasonably satisfactory to Purchaser; and
(v) a regulatory sideletter in form and substance
reasonably satisfactory to Purchaser.
9
The Company shall also pay on the date hereof any legal fees
and expenses of Milbank, Tweed, Xxxxxx & XxXxxx LLP that are
due and remain outstanding or that relate to this Agreement
and the transactions contemplated hereby by wire transfer of
immediately available funds to an account designated by such
firm.
(c) On the date hereof, Purchaser shall deliver to the Company
$5,000,000 by wire transfer of immediately available funds to an account
designated by the Company.
2.03 Initial Holder Representations, Warranties and Agreements.
Purchaser represents and warrants to, and agrees with the Company that (a)
Purchaser is purchasing for its own account, and not with a view to the resale
or distribution of the Purchased Shares or the Underlying Common Stock or any
part thereof, and Purchaser is prepared to bear the economic risk of retaining
the Purchased Shares and the Underlying Common Stock for an indefinite period,
all without prejudice, however, to the right of Purchaser at any time lawfully
to sell or otherwise to dispose of all or any part of the Purchased Shares or
the Underlying Common Stock held by it, (b) Purchaser is an "accredited
investor" (as defined in Rule 501 of Regulation D promulgated under the
Securities Act), (c) Purchaser is experienced in evaluating and investing in
securities, and understands that the Purchased Shares and the Underlying Common
Stock will be restricted securities, and that a legend to that effect shall be
placed on the Restricted Securities, and no public market shall exist for the
disposition or transfer of such Restricted Securities, and (d) the acquisition,
holding and any transfer of any Restricted Securities by Purchaser shall be in
compliance with all laws applicable to Purchaser.
2.04 Securities Act Compliance. Purchaser understands that the
Company has not registered or qualified the Purchased Shares or the Underlying
Common Stock under the Securities Act or any applicable state securities laws
and Purchaser agrees that the Purchased Shares and the Underlying Common Stock
shall not be sold or offered for sale without registration under the Securities
Act or the availability of an exemption therefrom, all as more fully provided in
Section 4 hereof.
2.05 Use of Proceeds. The Company shall use the proceeds from the
issuance of the Purchased Shares in connection with this Agreement for general
corporate purposes.
Section 3. Representations and Warranties of the Company. The
Company represents and warrants to Purchaser that:
10
3.01 Existence. The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida and has all
requisite corporate power and authority to own its properties and assets and to
carry on its business as it is now being conducted and as proposed to be
conducted. Each of the Company and its material domestic Subsidiaries is duly
qualified to transact business as a foreign corporation and is in good standing
in each jurisdiction in which the character of the properties owned or leased by
it or the nature of its business makes such qualification necessary, except for
any such failures to so qualify or be in good standing that would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect..
3.02 No Breach. None of the execution and delivery of this Agreement
and the Purchased Shares, the consummation of the transactions herein and
therein contemplated and compliance with the terms and provisions hereof and
thereof will conflict with or result in a breach of, or require any consent
under, the charter or by-laws of the Company or any applicable law or
regulation, or any order, writ, injunction or decree of any court or
Governmental Authority, or any agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which any of them is bound or to which
any of them is subject, or constitute a default under any such agreement or
instrument, which conflict, breach, failure to obtain consent or default would
have a Material Adverse Effect.
3.03 Corporate Action. The Company has all necessary corporate power
and authority to execute, deliver and perform its obligations under this
Agreement and the Purchased Shares; the execution, delivery and performance by
the Company of this Agreement and the Purchased Shares have been duly authorized
by all necessary corporate action (including all required shareholder action) on
the part of the Company; this Agreement has been duly executed and delivered by
the Company and constitutes, and the Purchased Shares when executed, issued and
delivered pursuant to this Agreement will be duly and validly issued, fully paid
and nonassessable and will constitute, valid and legally binding obligations of
the Company entitled to the benefits provided therein, and the Underlying Common
Stock initially covered by the Purchased Shares shall, when issued and delivered
in accordance with the terms of Purchased Shares, be duly and validly issued,
fully paid and nonassessable; and the Purchased Shares when executed and
delivered by the Company will constitute, its legal, valid and binding
obligations, enforceable against it in accordance with the terms thereof, except
as enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting creditors' rights generally, and by general principles of equity
(regardless of whether enforcement is sought at equity or in law).
3.04 Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any Governmental Authority are necessary for the
execution, delivery or performance by the Company of this Agreement or of the
Purchased Shares or for the validity or enforceability hereof or thereof. Any
such action required to be taken as a condition to the execution and delivery of
this Agreement and the Purchased Shares, or the issuance of the Purchased
Shares, has been duly taken by all such Governmental Authorities or other
Persons, as the case may be.
11
3.05 Investment Company Act. Neither the Company nor any of its
Subsidiaries is an "investment company", or a company "controlled by" an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
3.06 Public Utility Holding Company Act. Neither the Company nor any
of its Subsidiaries is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
3.07 Capitalization.
(a) Upon the issuance of the Purchased Shares under this Agreement,
the total number of shares of capital stock which the Company has authority to
issue and the outstanding shares of the Company will be as set forth in Schedule
1 hereto. Upon the issuance of the Purchased Shares under this Agreement, the
Company shall not have outstanding any stock or securities convertible into or
exchangeable for any shares of capital stock nor shall it have outstanding any
rights to subscribe for or to purchase, or any Options for the purchase of, or
any agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to, any capital stock or
stock or securities convertible into or exchangeable for any capital stock other
than (i) the Purchased Shares to be issued pursuant to this Agreement, and (ii)
the Warrants, Option Stock and Options listed on Schedule 2.
(b) There is not in effect on the date hereof any agreement by the
Company pursuant to which any holders of securities of the Company have a right
to cause the Company to register such securities under the Securities Act other
than (i) this Agreement, (ii) the Warrant Agreement, (iii) the BOC Warrant and
(iv) the IPO Warrants.
(c) The Underlying Common Stock has been duly authorized and
adequately reserved in contemplation of the conversion of the Preferred Shares
and, when issued and delivered in accordance with the terms of the Certificate
of Designations, will have been validly issued and will be fully paid and
nonassessable, and the issuance thereof will not have been subject to any
preemptive rights or made in violation of any applicable law.
(d) The holders of the Preferred Shares will, upon issuance thereof,
have the rights set forth in the Certificate of Designations (subject to the
limitations and qualifications set forth therein).
3.08 Private Offering. The Company agrees that neither it nor anyone
acting on its behalf has offered or will offer the Purchased Shares or the
Underlying Common Stock, or any part thereof, or any similar securities for
issue or sale to, or has solicited or will solicit any offer to acquire any of
the same from, anyone so as to bring the issuance and sale of the Purchased
Shares within the provisions of Section 5 of the Securities Act.
3.09 SEC Documents; Financial Statements. The Company has filed in a
timely manner all documents that the Company was required to file with the
Commission under Sections 13, 14(a) and 15(d) of the Exchange Act, since its
initial public offering. As of their
12
respective filing dates, all documents filed by the Company with the Commission
("SEC Documents") complied in all material respects with the requirements of the
Exchange Act or the Securities Act, as applicable. None of the SEC Documents as
of their respective dates contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under which they
were made, not misleading. The financial statements of the Company included in
the SEC Documents (the "Financial Statements") comply as to form in all material
respects with applicable accounting requirements and with the published rules
and regulations of the Commission with respect thereto. The Financial Statements
have been prepared in accordance with GAAP and fairly present the consolidated
financial position of the Company and any Subsidiaries at the dates thereof and
the consolidated results of their operations and consolidated cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal,
recurring adjustments). Except as set forth or reflected in the SEC Documents
filed prior to the date hereof, the Company does not have any liabilities or
obligations of any nature (whether accrued, absolute, contingent, unasserted or
otherwise) that individually or in the aggregate would be expected to have a
Material Adverse Effect.
3.10 Provided Information. To the knowledge of the Company, all
written information (excluding information of a general economic nature and
financial projections) concerning the Company and the transactions contemplated
hereby (the "Information") that has been or will be prepared by or on behalf of
the Company or any of the Company's authorized representatives and that has been
made or will be made available to Purchaser or any of its authorized
representatives in connection with the Purchased Shares, when taken as a whole,
was or will be, at the time made available, correct in all material respects and
did not or will not, at the time made available, contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements contained therein not misleading in light of the circumstances under
which such statements are made. All financial projections concerning the Company
and the Purchased Shares (the "Projections") that have been prepared by or on
behalf of the Company or any of the Company's authorized representatives and
that have been or will be made available to Purchaser or any of its authorized
representatives in connection with the Purchased Shares have been, and at the
time made available will be, reasonably prepared on a basis reflecting the best
currently available estimates and judgments of the Company's management as to
the future financial performance of the Company and the individual business
segments thereof.
3.11 Material Adverse Change. Except as disclosed in the SEC
Documents and as set forth in Schedule 3.11, since June 30, 1999, there has not
been any event, occurrence or development of a state of circumstances or facts
that has had, or could have reasonable been expected to have, (i) a Material
Adverse Effect or (ii) a material adverse effect on the ability of the Company
to perform its obligations under this Agreement.
3.12 Litigation. There are not any (a) outstanding judgments against
or affecting the Company or any of its Subsidiaries, (b) proceedings pending or,
to the knowledge of the Company, threatened against or affecting the Company or
any of its Subsidiaries or (c) investigations by any Governmental Authority that
are, to the knowledge of the Company, pending or threatened against of affecting
the Company or any of its Subsidiaries that (i) in any
13
manner challenge or seek to prevent, enjoin, alter or materially delay the
issuance of the Purchased Shares or (ii) if resolved adversely to the Company or
any Subsidiary, would have, individually or in the aggregate, a Material Adverse
Effect.
3.13 Permits and Licenses. The Company and its Subsidiaries have
obtained all governmental permits, licenses, franchises and authorizations
required for the Company and its Subsidiaries to conduct their respective
businesses as currently conducted, except for those of which the failure to
obtain would not have a Material Adverse Effect.
3.14 Properties. (a) Each of the Company and its Subsidiaries has
good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for (i) Permitted Encumbrances and
(ii) minor defects in title that do not interfere with its ability to conduct
its business as currently conducted or to utilize such properties for their
intended purposes.
(b) Each of the Company and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Company and its
Subsidiaries, to the best of the Company's knowledge, does not infringe upon the
rights of any other Person, except for any such infringements that, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
3.15 Environmental Matters. Except with respect to any matters that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, neither the Company nor any of its Subsidiaries (i)
has failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability.
3.16 Compliance with Laws and Agreements. Each of the Company and
its Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
3.17 Taxes. Each of the Company and its Subsidiaries has timely
filed or caused to be filed all tax returns and reports required to have been
filed and has paid or caused to be paid all Taxes required to have been paid by
it, except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which the Company or such Subsidiary, as applicable, has set
aside on its books adequate reserves or (b) to the extent that the failure to do
so could not reasonably be expected to result in a Material Adverse Effect.
3.18 ERISA. (a) (i) Neither the Company nor any ERISA Affiliate
maintains or contributes to, or has maintained or contributed to, any Plan that
is an ERISA Plan and (ii) neither the Company nor any of its Subsidiaries
maintains or contributes to, or has maintained or
14
contributed to, any Plan that is an "Executive Arrangement" (as that term is
used in the definition of "Plan");
(b) Each Plan has at all times been maintained, by its terms and in
operation, in accordance with all applicable laws, except where such
noncompliance (when taken as a whole) would not have a Material Adverse Effect;
(c) Neither the Company nor any of its Subsidiaries is currently
making, nor has in the last 6 years been obligated to make, contributions
(directly or indirectly) to a Multiemployer Plan, nor is it currently nor will
it become subject to any liability (including withdrawal liability), tax or
penalty whatsoever to any Person whomsoever with respect to any Plan including,
but not limited to, any tax, penalty or liability arising under Title I or Title
IV or ERISA or Chapter 43 of the Code, except where such liabilities (when taken
as a whole) would not have a Material Adverse Effect; and
(d) The Company and each ERISA Affiliate has made full and timely
payment of all amounts (i) required to be contributed under the terms of each
Plan and applicable law and (ii) required to be paid as expenses of each Plan.
No Plan has an "amount of unfunded benefit liabilities" (as defined in Section
4001(a)(18) of ERISA).
3.19 Subsidiaries. Set forth in Schedule 3.19 is a complete and
correct list of all of the Subsidiaries of the Company as of the date hereof
together with, for each such Subsidiary, (i) the jurisdiction of organization of
such Subsidiary, (ii) each Person holding ownership interests in such Subsidiary
and (iii) the nature of the ownership interests held by each such Person and the
percentage of ownership of such Subsidiary represented by such ownership
interests. Each of the Company and its Subsidiaries owns, free and clear of
Liens, and has the unencumbered right to vote, all outstanding ownership
interests in each Person shown to be held by it in Schedule 3.19, all of the
issued and outstanding capital stock of each such Person organized as a
corporation is validly issued, fully paid and nonassessable and there are no
outstanding Equity Rights with respect to such Person.
3.20 No Burdensome Restrictions. Neither the Company nor any of its
Subsidiaries is party to any contract or agreement that would result in any
burdensome restrictions that might reasonably be expected have a Material
Adverse Effect, including, but not limited to, any collective bargaining
agreements.
Section 4. Transfers Generally; Securities Act Compliance.
15
4.01 Transfers Generally. Except as otherwise permitted by Section 5
hereof, the Restricted Securities shall only be transferable upon the conditions
specified in this Section 4, which conditions are intended, among other things,
to insure compliance with the provisions of Regulation Y and the Securities Act
in respect of the transfer of any Restricted Securities. Any Holder shall, by
its acceptance of any Purchased Shares hereunder, be deemed to have made the
representations, warranties and agreements set forth in Section 2.03 hereof on
the date of such acceptance.
4.02 Transfers of Restricted Securities Pursuant to Registration
Statements and Rule 144, Etc. The Restricted Securities may be offered or sold
by the Holder thereof pursuant to (a) an effective registration statement under
the Securities Act, (b) to the extent applicable, Rule 144 or (c) subject to
Section 4.03 hereof, any other applicable exemption from the Securities Act.
4.03 Notice of Certain Transfers. If any Holder of any Restricted
Security desires to transfer such Restricted Security other than pursuant to an
effective registration statement, Rule 144 under the Securities Act or in
accordance with Section 5.01(a) hereof, such Holder shall deliver to the Company
at least 7 Business Days' prior written notice with respect to the proposed
transfer, together with an opinion (at such Holder's expense) of Milbank, Tweed,
Xxxxxx & XxXxxx LLP, or such other counsel reasonably satisfactory to the
Company, to the effect that an exemption from registration under the Securities
Act is available and specifying the applicable exemption.
4.04 Restrictive Legend. Unless and until otherwise permitted by
this Section 4, each certificate for the Purchased Shares issued under this
Agreement, each certificate for any Purchased Shares issued to any subsequent
transferee of any such certificate, each certificate for any Underlying Common
Stock issued upon conversion of any Purchased Share, each certificate for any
Underlying Common Stock issued to any subsequent transferee of any such
certificate, each certificate for any Other Securities issued in connection with
the conversion of any Purchased Share and each certificate for any Other
Securities issued to any subsequent transferee of any such certificate in
respect thereof, shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS, AND ACCORDINGLY, SUCH SECURITIES
MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT IN
COMPLIANCE WITH THE REGISTRATION OR QUALIFICATION PROVISIONS OF
APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR APPLICABLE
EXEMPTIONS THEREFROM."
"THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS SPECIFIED IN THAT CERTAIN PREFERRED
STOCK PURCHASE AGREEMENT DATED AS OF MAY __, 2000, BETWEEN NUCO2
INC., A FLORIDA
16
CORPORATION, AND CHASE CAPITAL INVESTMENTS, L.P., A DELAWARE LIMITED
PARTNERSHIP, AS SUCH PREFERRED STOCK PURCHASE AGREEMENT MAY BE
MODIFIED AND SUPPLEMENTED AND IN EFFECT FROM TIME TO TIME, AND NO
TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE SHALL BE
VALID OR EFFECTIVE UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED. A COPY
OF THE PREFERRED STOCK PURCHASE AGREEMENT IS ON FILE AND MAY BE
INSPECTED AT THE PRINCIPAL EXECUTIVE OFFICE OF THE AFORESAID
CORPORATION. THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS
CERTIFICATE, AGREES TO BE BOUND BY THE PROVISIONS OF SUCH PREFERRED
STOCK PURCHASE AGREEMENT."
4.05 Termination of Restrictions. The restrictions imposed by this
Section 4 upon the transferability of the Restricted Securities shall cease and
terminate as to any particular Restricted Security when such Restricted Security
shall have been effectively registered under the Securities Act and sold by the
Holder thereof in accordance with such registration or sold under and pursuant
to Rule 144 or is eligible to be sold pursuant to paragraph (k) of Rule 144.
Whenever the restrictions imposed by this Section 4 shall terminate as to any
Restricted Security as hereinabove provided, the Holder thereof shall, upon
written request, be entitled to receive from the Company, without expense, a new
certificate evidencing such Restricted Security not bearing the restrictive
legend otherwise required to be borne by a certificate evidencing such
Restricted Security.
Section 5. Additional Provisions Relating to Transfers.
5.01 Disposition of Securities. Subject to compliance with all of
the provisions of Section 4 hereof, any Holder shall have the right to transfer
any Restricted Securities to any Person.
(a) Subject to compliance with the provisions of Section 4 hereof,
except with respect to the requirement for an opinion of counsel to the Holder,
which shall not be required under this Section 5.01(a), any Holder shall have
the right to transfer any Restricted Securities:
(i) to any Person who at the time owns (directly or
indirectly) at least a majority of the voting capital stock or
other equity interests of such Holder; or
(ii) to any Person at least a majority of whose voting
capital stock shall at the time be owned (directly or indirectly)
by such Holder or by any Person who owns (directly or indirectly)
at least a majority of the voting capital stock or other equity
interests of such Holder.
(b) In the event of any underwritten public offering of Restricted
Securities in which a Holder which is subject to the provisions of Regulation Y
is participating, the Company shall use its reasonable efforts to assist the
underwriter in ensuring that any Purchased Shares or
00
Xxxxxxxxxx Xxxxxx Stock issued by the Company and sold by such Holder are widely
disseminated.
5.02 Repurchase of Common Stock. The Company shall give 30 days
prior written notice to each Holder before purchasing, redeeming, retiring or
otherwise acquiring any shares of Common Stock of the Company.
5.03 Transfer, Division and Combination. Subject to Sections 4 and 5
hereof, transfer of Purchased Shares and all rights thereunder, in whole or in
part (the "Transferred Purchased Share"), shall be registered on the books of
the Company to be maintained for such purpose, upon surrender of such
Transferred Purchased Shares at the office of the Company maintained for such
purpose pursuant to Section 11.03 hereof, together with a written power or
assignment, duly executed by the relevant Holder and payment of funds sufficient
to pay any transfer taxes payable upon the making of such transfer. Upon such
surrender and, if required, such payment, the Company shall, subject to Sections
4 and 5 hereof and the immediately following sentence, (a) execute and deliver
new Preferred Shares in the name of the assignee or assignees and in the
denominations specified in such instrument of assignment, (b) issue to the
assignor new Preferred Shares evidencing the portion of such Transferred
Purchased Shares not so assigned or transferred and (c) promptly cancel such
Transferred Purchased Shares. Preferred Shares, if properly assigned in
compliance with Sections 4 and 5 hereof, may be converted by an assignee for
shares of Common Stock without having new Preferred Shares issued.
Notwithstanding any provision herein to the contrary, the Company shall not be
required to register the transfer of Preferred Shares or Underlying Common
Shares in the name of any Person who acquired such Preferred Shares (or part
thereof) or any Underlying Common Stock otherwise than in accordance with this
Agreement.
The Company shall maintain with its transfer agent or at its
aforesaid office, books for the registration and transfer of the Preferred
Shares.
Section 6. Notice to Holders of Preferred Shares. In case the
Company shall propose (a) to pay any dividend (other than a regular periodic
dividend payable in cash out of earned surplus) to the holders of its Common
Stock or to make any other distribution to the holders of its Common Stock, or
(b) to offer to the holders of its Common Stock rights to subscribe for or to
purchase any Additional Shares of Common Stock or Other Securities, rights or
options, or (c) to effect any reclassification of its Common Stock (other than a
reclassification involving only the subdivision, or combination, of outstanding
shares of Common Stock), or (d) to effect any capital reorganization, or (e) to
effect any consolidation, merger or share exchange in which the Company is not
the surviving entity, or is the surviving entity but its Common Stock shall be
changed into securities or other property of another Person, or sale, lease,
transfer or other disposition of all or a majority of its property, assets or
business, or (f) to effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give to each Holder, in
accordance with Section 11.02 hereof, a notice of such proposed action, which
shall specify the date on which a record is to be taken for the purposes of such
stock dividend, distribution or offering of rights, or the date on which such
reclassification, reorganization, consolidation, merger, share exchange, sale,
lease, transfer, disposition, liquidation, dissolution or winding up is to take
place and the date of participation therein by the
18
holders of Common Stock, if any such date is to be fixed and shall also set
forth such facts with respect thereto as shall be reasonably necessary to
indicate the effect of such action on the Common Stock, if any, and the number
and kind of any other shares of stock which will comprise a Stock Unit, and the
purchase price or prices thereof, after giving effect to any adjustment, if any,
which will be required as a result of such action. Such notice shall be so given
in the case of any action covered by clause (a) or (b) above at least 20 days
prior to the record date for determining holders of the Common Stock for
purposes of such action, and in the case of any other such action, at least 20
days prior to the date of the taking of such proposed action or the date of
participation therein by the holders of Common Stock, whichever shall be the
earlier.
Section 7. Reservation and Authorization of Common Stock. The
Company shall at all times reserve and keep available for issue upon the
conversion of the Preferred Shares such number of its authorized but unissued
shares of Common Stock as will be sufficient to permit the conversion in full of
all the outstanding Preferred Shares from time to time. All shares of Common
Stock which shall be so issuable, when issued upon conversion of any Preferred
Shares in accordance with the terms thereof, shall be duly and validly issued by
the Company, fully paid and nonassessable and free and clear of all Liens.
The Company will list on each trading market, including any
automated quotation system and any securities exchange, on which any Common
Stock may at any time be listed or admitted to trading, subject to official
notice of issuance upon conversion of the Preferred Shares, and will maintain
such listing of or admission to, all shares of Common Stock from time to time
issuable upon the conversion of the Preferred Shares. The Company will also so
list on such trading market, and will maintain such listing of, any Other
Securities if at the time any securities of the same class shall be listed on
such trading market by the Company.
Section 8. Stock and Preferred Shares Transfer Books.
The Company shall not close its stock transfer books or Preferred
Shares transfer books for the purpose of preventing or delaying the exercise,
conversion or transfer of any Preferred Shares.
Section 9. Holders' Special Rights.
9.01 Replacement of Instruments. Upon receipt by the Company of
evidence reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any certificate or instrument evidencing any
Preferred Shares issued by the Company, and
(a) in the case of loss, theft or destruction, of an indemnity
reasonably satisfactory to it, provided that, if the owner of the same is
Purchaser, its own agreement of indemnity shall be deemed to be
satisfactory, or if the owner of the same is a Holder the Company may
require a bond, or
(b) in the case of mutilation, upon surrender or cancellation
thereof,
19
the Company, at its expense, shall execute, register and deliver, in lieu
thereof, a new certificate or instrument for such Preferred Shares.
9.02 Restrictions on Certain Action.
(a) The Company shall not at any time enter into an agreement or
other instrument limiting in any manner (other than in a de minimis manner) its
ability to perform its obligations under this Agreement or making such
performance or the issuance of shares of Common Stock upon the conversion of any
Preferred Shares issued by it a default under any such agreement or instrument.
(b) So long as at least 50% of all of the Purchased Shares issued to
Purchaser hereunder shall remain outstanding, neither the Company nor any of its
Subsidiaries shall (i) issue any Participating Security or Options for or
Convertible Securities convertible into a Participating Security, (ii) issue any
class of equity other than Common Stock outstanding on the date hereof and any
Preferred Stock of the Company or (iii) make or agree to make payments to any
Person, such as any "phantom" stock payments, where the amount thereof is
calculated with reference to fair market or equity value of the Company or any
of its Subsidiaries.
9.03 Inspection Rights. As and when requested, the Company shall
provide to Purchaser or any transferee who is a Holder of more than 15% of the
total outstanding Preferred Shares or the agents or representatives of such
holder all information and/or access to all information in respect of the
Company and its Subsidiaries as the Company provides to members of the Board at
the same time or times and/or subject to the same conditions to which such
information or access thereto is provided to such members of the Board.
9.04 Board Attendance. So long as Purchaser owns 50% or more of the
Purchased Shares or the Underlying Common Stock, one representative (the
"Representative") appointed by Purchaser shall be entitled to attend all
meetings of (i) the Board, (ii) the board of directors of any Subsidiary of the
Company and (iii) any committee of (i) and (ii) above provided, however, that
the Representative shall not be entitled to vote at any such meeting. The
Company shall reimburse, by Company check mailed within 30 Business Days of
receipt by the Company of proper documentation thereof, the reasonable
out-of-pocket expenses incurred by the Representative in connection with
attendance at any meetings pursuant to this Section 9.04; provided, however, the
Representative shall not be entitled to reimbursement for first-class travel.
Section 10. Registration.
10.01 Notice. (a) On and after the date of this Agreement (i) upon
receipt of notice (a "Demand Notice") from the Majority Holders requesting that
the Company effect the registration of the Preferred Shares or shares of
Underlying Common Stock held by any Holder or Holders or (ii) whenever the
Company otherwise proposes to effect the registration of any Common Stock under
the Securities Act, the Company shall promptly, and in any event at least 20
days prior to the anticipated filing date of the proposed registration
statement, give written notice of such proposed registration to all Holders.
Each Holder that wishes to register its
20
Preferred Shares or shares of Underlying Common Stock (each, a "Seller") shall,
within 15 days after receipt of such notice from the Company, deliver to the
Company a notice (a "Seller Notice") stating that such Seller wishes to
participate in such offering and setting forth the number of Preferred Shares or
Underlying Common Stock, as the case may be, that such Seller desires to include
in such offering. The Company thereupon shall, subject to Section 10.01(b) as
expeditiously as possible, use its best efforts to effect the registration under
the Securities Act of such Preferred Shares or Underlying Common Stock (any such
registration effected or undertaken pursuant to a Demand Notice being herein
referred to as a "Demand Registration"); provided, however, that the Company
shall not be required to effect more than (x) one Demand Registration on Form
S-1 or other "long-form" registration as may be available and (y) two Demand
Registrations on Form S-3 or other "short-form" registration as may be
available; provided, further that the Company's obligation to effect
registration of Preferred Shares or Underlying Common Stock under Section
10.01(a)(ii) shall be unlimited in number. In the event that (i) the amount of
securities proposed to be sold by Sellers pursuant to a Demand Notice shall be
reduced pursuant to Section 10.02(a) hereof to an amount which is less than 75%
of the amount of securities originally proposed to be sold by Sellers or if any
securities of the Company other than those proposed to be sold by Sellers are
included in such Demand Registration on a pari passu basis with Seller's
securities, or (ii) any Demand Notice shall be withdrawn by the Holder or
Holders originally giving such Demand Notice at any time prior to the filing by
the Company of a preliminary registration statement in connection with such
Demand Notice, then, in such event, no right to a Demand Registration shall be
deemed to have been exercised or forfeited and such Demand Notice shall not
operate to reduce the Company's obligation to effect the number of Demand
Registrations pursuant to a Demand Notice as specified in this Section 10.01;
provided, however, if the Demand Notice is withdrawn by the Holder or Holders
originally giving such Demand Notice as provided in subparagraph (ii) above, the
right to a Demand Registration shall be deemed to have been exercised if such
Holder or Holders does not reimburse the Company for all costs and expenses of
such withdrawn registration.
(b) Deferral of Filing. The Company may defer the filing (but not
the preparation) of a registration statement required by Section 10.01(a)(i)
until a date not later than 60 days in the case of clause (i) below and, in the
case of clause (ii) below, 180 days (or, if longer, 90 days after the effective
date of the registration statement contemplated by clause (ii) below), after the
date of the Demand Notice if (i) at the time the Company receives the Demand
Notice, the Company or any of its Subsidiaries is engaged in confidential
negotiations or other confidential business activities, disclosure of which
would be required in such registration statement (but would not be required if
such registration statement were not filed), and the Board determines in good
faith that such disclosure would be materially detrimental to the Company and
its shareholders or would have a material adverse effect on any such
confidential negotiations or other confidential business activities, or (ii)
prior to receiving the Demand Notice, the Board had determined to effect a
registered underwritten public offering of the Company's securities for the
Company's account and the Company had taken substantial steps (including, but
not limited to, selecting a managing underwriter for such offering) and is
proceeding with reasonable diligence to effect such offering. A deferral of the
filing of a registration statement pursuant to this Section 10.01(b) shall be
lifted, and the requested registration statement shall be filed forthwith, if,
in the case of a deferral pursuant to clause (i) of the preceding sentence, the
negotiations or other activities are disclosed or terminated, or, in the
21
case of a deferral pursuant to clause (ii) of the preceding sentence, the
proposed registration for the Company's account is abandoned. In order to defer
the filing of a registration statement pursuant to this Section 10.01(b), the
Company shall promptly (but in any event within 10 days), upon determining to
seek such deferral, deliver to each Seller a certificate signed by an executive
officer of the Company pursuant to this Section 10.01(b) and a general statement
of the reason for such deferral and an approximation of the anticipated delay.
Within 15 days after receiving such certificate, Seller's holding a majority in
interest of the Underlying Common Stock for which registration was previously
requested may withdraw such request by giving notice to the Company; if
withdrawn, the Demand Notice shall be deemed not to have been made for all
purposes of this Agreement. The Company may not invoke its right to defer the
filing of a registration statement under this Section 10.01(b) more than once in
any eighteen month period.
(c) If the Majority Holders so elect, the offering of the Preferred
Shares, the Underlying Common Stock and/or the Other Securities pursuant to a
Demand Registration shall be in the form of an underwritten offering. If any
Demand Registration is in the form of an underwritten offering, the Majority
Holders will select and obtain the investment banker or investment bankers that
will administer the offering; provided, that such investment banker shall be
reasonably satisfactory to the Company.
10.02 Proration.
(a) In the case of a Demand Registration, if the underwriter (or, if
the offering is not underwritten, an independent financial advisor to the
Sellers) determines that marketing factors require a limitation on the number of
securities to be offered and sold, there shall be included in such registration
only that number of securities that the underwriter, or financial advisor, as
the case may be, reasonably believes will not jeopardize the success of the
offering. Any reduction in the number of securities to be so offered shall first
be pro-rata among all Persons (other than the Company) proposing to sell
securities pursuant to such offering who are not Sellers, based on the number of
securities originally proposed to be sold by each of them, and then, if
necessary, pro-rata among all Sellers and the Company based on the number of
securities originally proposed to be sold by each of them.
(b) In the case of a registration to be effected pursuant to Section
10.01(a)(ii) hereof, if the underwriter (or, if the offering is not
underwritten, an independent financial advisor to the Company) determines that
marketing factors require a limitation on the number of securities to be offered
and sold in the offering, including securities requested to be offered and sold
by Sellers, there shall be included in the offering only that number of
securities that the underwriter, or financial advisor, as the case may be,
reasonably believes will not jeopardize the success of the offering. Any
reduction in the number of securities to be so offered shall be pro-rata among
the Shareholders, the Sellers and all other Persons, proposing to sell
securities pursuant to such offering, based on the number of securities
originally proposed to be sold by each such Person.
Nothing contained herein shall be construed to limit in any way the Company's
right, in its sole discretion, to withdraw any registration statement (other
than a registration statement filed
22
pursuant to a Demand Notice) before such registration statement becomes
effective, or to postpone the offering of securities contemplated by any such
registration statement.
10.03 Registration Procedures. If and whenever the Company is
required by the provisions of Section 10.01(a)(i) hereof or, with respect to
subsections (iii), (vi), (vii), (viii), (ix), (x) and (xiii) of this Section
10.03, by the provisions of Sections 10.01(a)(i) or (ii) hereof, to use its best
efforts to effect the registration of any of its securities under the Securities
Act, the Company shall, as expeditiously as possible,
(i) prepare and file with the Commission a registration statement
on Form S-1 (or such other "long-form") or Form S-3 (or such other
"short-form") as may be available, as the case may be, with respect
to such securities and use its best efforts to cause such
registration statement to become and remain effective for a period
of not less than 90 days to permit the sale of such securities in
accordance with the plan of distribution chosen by the Seller or
Sellers and the underwriter;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions
of the Securities Act with respect to the sale or other disposition
of all securities covered by such registration statement;
(iii) furnish to each Seller such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with
the requirements of the Securities Act, and such other documents, as
such Seller may reasonably request in order to facilitate the public
sale or other disposition of the securities owned by such Seller;
(iv) use its best efforts to register or qualify the securities
covered by such registration statement under such other securities
or blue sky laws of such jurisdictions within the United States as
each Seller shall reasonably request, and do such other reasonable
acts and things as may be requested of it to enable such Seller to
consummate the public sale or other disposition in such
jurisdictions of the securities owned by such Seller, except that
the Company shall not for any such purpose be required to qualify to
do business as a foreign corporation in any jurisdiction wherein it
is not so qualified;
(v) use its best efforts to cause the securities covered by such
registration statement to be registered with or approved by such
other U.S. or state governmental agencies or authorities as may be
necessary to enable the Seller or Sellers thereof to consummate the
disposition of such securities;
(vi) notify each Seller of any securities covered by such
registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
Company's becoming aware that the prospectus included in such
registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the
23
statements therein not misleading in the light of the circumstances
then existing (upon receipt of which each Seller agrees to forthwith
cease making offers and sales of such securities pursuant to such
prospectus and to deliver to the Company any copies of such
prospectus then in the possession of such Seller), and at the
request of any such Seller promptly prepare and furnish to such
Seller a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include 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 not
misleading in the light of the circumstances then existing;
(vii) make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of
at least twelve months, but not more than eighteen months, beginning
with one of the first three months after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act;
(viii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission;
(ix) use its best efforts to list such securities on automatic
quotation system or any securities exchange on which the Common
Stock of the Company is then listed, or, if not so listed, on a
national securities exchange, if the listing of such securities is
then permitted under the rules of such exchange;
(x) provide a transfer agent and registrar for all the securities
covered by such registration statement not later than the effective
date of such registration statement;
(xi) enter into such agreements (including an underwriting
agreement in customary form containing without limitation customary
indemnity and contribution provisions for the benefit of the
underwriter or underwriters and the Seller or Sellers) and take such
other actions as the Seller or Sellers shall reasonably request in
order to expedite or facilitate the disposition of such securities;
(xii) obtain an opinion from the Company's counsel and a "cold
comfort" letter from the Company's independent public accountants in
customary form and covering such matters as the Seller or Sellers
shall reasonably request;
(xiii) make available for inspection by any Seller of securities
covered by such registration statement, by any underwriter
participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant or other
agent retained by any such Seller or any such underwriter, all
pertinent financial and other records, pertinent corporate documents
and properties of the Company, and cause all of the Company's
officers, directors and employees to supply all information
reasonably requested by any such Seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
and
24
(xiv) permit any Seller of securities covered by such
registration statement to require the insertion therein of material,
furnished to the Company in writing, which in the reasonable
judgment of such Seller should be included.
If any such registration or comparable statement refers to any Seller by name or
otherwise as the holder of any securities of the Company, then such Seller shall
have the right to require (A) the insertion therein of language, in form and
substance satisfactory to such Seller, to the effect that the holding by such
Seller of such securities is not to be construed as a recommendation by such
Seller of the investment quality of the Company's securities covered thereby and
that such holding does not imply that such Seller will assist in meeting any
future financial requirements of the Company, or (B) in the event that such
reference to such Seller by name or otherwise is not required by the Securities
Act, the deletion of the reference to such Seller.
The Company may require each Holder of securities to, and each such
Holder, as a condition to including securities in such registration, shall,
furnish the Company with such information and affidavits regarding such holder
and the distribution of such securities as the Company may from time to time
reasonably request in writing in connection with such registration. No Seller
may participate in any underwritten registration hereunder unless such Seller
(a) agrees to sell such Seller'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, lock-ups, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements and these
registration rights.
Each Seller of securities agrees that upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
10.03(vi), such Seller will forthwith discontinue such Seller's disposition of
securities pursuant to the registration statement relating to such securities
until such Seller's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 10.03(vi) and, if so directed by the Company,
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Seller's possession of any prospectus
relating to such securities at the time of receipt of such notice.
10.04 Holdback on Sales. The Company and the Holders hereby agree
not to effect any public sale or distribution of any securities similar to those
registered in accordance with Section 10.03 hereof during the 14 day period
prior to, and during the 45 day period beginning on, the effective date of any
registration statement (except as part of such registration statement).
10.05 Expenses. Subject to Section 10.01, all reasonable expenses
incurred in complying with this Section, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, the reasonable fees and disbursements of one counsel
for the Seller or the Sellers (to be chosen by the Seller or by the Sellers
holding a majority of the securities to be included by Sellers in a registration
statement), expenses of any special audits incident to or required by any such
registration and expenses of complying with the securities or blue sky laws of
any jurisdictions (provided, however, the
25
Company may delay such registration for up to 30 days, if such delay will
eliminate the need for such special audit), shall be paid by the Company;
provided, that in no event shall the Company be required to pay any underwriting
discounts, commissions or fees attributable to the sale of shares of Preferred
Stock by a Seller hereunder.
10.06 Indemnification.
(a) In the event of any registration of any of its securities under
the Securities Act pursuant to this Section 10, the Company shall, and hereby
agrees to, indemnify and hold harmless each Seller of such securities, its
directors and officers, partners, and each other Person, if any, who controls
such Seller within the meaning of Section 15 of the Securities Act, against any
losses to which such Seller or any such director, officer, partner or Person may
become subject under the Securities Act or any other statute or at common law,
insofar as such losses (or actions in respect thereof) arise out of or are based
upon any alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act, any preliminary prospectus or final prospectus with respect
thereto, or any amendment or supplement thereto, or any alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse such Seller or such
director, officer, partner or participating Person or controlling Person for any
legal or any other expenses reasonably incurred by such Seller or such director,
officer, partner or participating Person or controlling Person in connection
with investigating or defending any such loss; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss
arises out of or is based upon any alleged untrue statement or alleged omission
made in such registration statement, preliminary prospectus, prospectus, or
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company for inclusion therein through an instrument
duly executed by such Seller; provided further, however that with respect to any
untrue statement or omission or alleged untrue statement or omission made in any
preliminary prospectus, the indemnity agreement contained in this paragraph
shall not apply to the extent that any such loss, claim, damage, liability or
expense results from the fact that a current copy of the prospectus was not sent
or given to the Person asserting any such loss, claim, damage, liability or
expense at or prior to the written confirmation of the sale of the securities
concerned to such Person if the Company had prior thereto given such Seller the
notice referred to in Section 10.03(vi) hereof and provided to such Seller a
supplemented or amended prospectus as contemplated by Section 10.03(vi), and
such current copy of the prospectus would have cured the defect giving rise to
such loss, claim, damage, liability or expense. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
such Seller or such director, officer or participating Person or controlling
Person, and shall survive the transfer of such securities by such Seller.
(b) Each Seller of securities which are included in a registration
statement hereunder, as a condition to including securities in such registration
statement, shall, to the full extent permitted by law, indemnify and hold
harmless the Company, its directors and officers and each other Person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act,
against any losses to which the Company or any such director, officer or Person
may become subject under the Securities Act or otherwise, insofar as such losses
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue
26
statement of any material fact contained in such registration statement, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a prospectus, in the
light of the circumstances under which they were made) not misleading, if such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Seller specifically for use in the preparation thereof;
provided, however, that if the obligation to provide indemnification pursuant to
this Section 10.06(b) is applicable in more than one Seller, such obligation
shall be several, and not joint and several, among such Sellers on the basis of
the number of securities included by each in such registration statement and the
aggregate amount which may be recovered from any holder of securities pursuant
to the indemnification provided for in this Section 10.06(b) in connection with
any sale of securities shall be limited to the total proceeds received by such
holder from the sale of such securities. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of the
Company or any such other Person and shall survive the transfer of such
securities by such Seller.
(c) Promptly after receipt by any Person under this Section of
notice of the commencement of any action, such Person (an "Indemnified Party")
shall, if a claim in respect thereof is to be made against any other Person (an
"Indemnifying Party") for indemnity under this Section, notify the Indemnifying
Party in writing of the commencement thereof; but the omission so to notify the
Indemnifying Party shall not relieve it from any liability which it may have to
any Indemnified Party, except to the extent that the Indemnifying Party is
prejudiced thereby. The Indemnifying Party may, upon being notified of such
action, assume the defense thereof, with counsel satisfactory to such
Indemnified Party, and, after such assumption, the Indemnifying Party shall not
be liable to such Indemnified Party under this Section for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
Indemnified Party, in connection with the defense thereof; provided, however,
that the Indemnifying Party may not assume the defense of the action, and shall
remain liable to the Indemnified Party for its legal expenses of counsel and
other expenses, in the event that the Indemnified Party has been advised in
writing by counsel who, in good faith determines that a conflict of interest may
exist between the Indemnified Party and the Indemnifying Party.
(d) If the indemnification provided for in this Section is
unenforceable although available, or insufficient to hold harmless an
Indemnified Party hereunder for any losses (or actions in respect thereof) in
respect of which the provisions of Sections 10.06(a) or (b) would otherwise
apply by their terms, then the Indemnifying Party shall contribute to the amount
paid or payable by such Indemnified Party as a result of such losses (or actions
in respect thereof) in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and the Indemnified Party on the
other hand in connection with the statements or omissions which resulted in such
losses (or actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
relates to information supplied by the Indemnifying Party on the one hand or
such Indemnified Party on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties agree that it would not be just and equitable
if contribution pursuant to this subsection were determined by pro rata
allocation or by any other
27
method of allocation which does not take account of the equitable considerations
referred to in this subsection. The amount paid or payable as a result of the
losses (or actions in respect thereof) referred to above in this subsection
shall be deemed to include any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating or defending any such
action or claim. In no event shall any Seller be required to contribute in the
aggregate an amount exceeding the amount of proceeds received by such Seller in
connection with any offering. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
10.07 No Other Registration Rights. The Company shall not grant any
registration rights to any holder of securities of the Company in respect of
such securities if such registration rights would rank senior to, or otherwise
adversely affect in any material respect, the registration rights granted in
this Section 10.
10.08 Rule 144. The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act so long
as the Company is registered under the Exchange Act. Upon the request of any
Holders, the Company will deliver to such Holder a written statement as to
whether it has complied with such requirements.
Section 11. Miscellaneous.
11.01 Waiver. No failure on the part of any Holder to exercise and
no delay in exercising, and no course of dealing with respect to, any right,
power or privilege under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law.
11.02 Notices. All notices and other communications provided for
herein and the Preferred Shares (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telecopy), if to (a) any
party hereto, delivered to the intended recipient at the "Address for Notices"
specified below its name on the signature pages hereof; or, as to any party, at
such other address as shall be designated by such party in a written notice to
each other party, or (b) any other Person who is the registered Holder of any
Preferred Shares or Underlying Common Stock, to the address for such Holder as
it appears in the stock or Preferred Shares ledger of the Company. Except as
otherwise provided in this Agreement, all such communications shall be deemed to
have been duly given when transmitted by telecopier or personally delivered, or,
in the case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid. The Company agrees to deliver to each Holder in the manner prescribed
by this Section 11.02 any notices or other communications delivered to the
Shareholders.
11.03 Office of the Company. So long as any of the Preferred Shares
remain outstanding, the Company shall maintain an office in the continental
United States of America where the Preferred Shares may be presented for
conversion, transfer, division or combination provided in the Certificate of
Designations. Such office shall be at 0000 Xxxxxxxxx Xxxxxx Xxxxx,
00
Xxxxxx, Xxxxxxx 00000 unless and until the Company shall designate and maintain
some other office for such purposes and give notice thereof to all Holders.
11.04 Expenses, Transfer Taxes and Other Charges.
(a) Expenses, Etc. The Company agrees to pay or reimburse Purchaser
for paying: (i) all reasonable out-of-pocket costs and expenses of Purchaser
(including, without limitation, the reasonable fees and expenses of Milbank,
Tweed, Xxxxxx & XxXxxx LLP, special counsel to Purchaser), in connection with
(x) the negotiation, preparation, execution and delivery of this Agreement and
the issuance of the Preferred Shares hereunder and (y) any amendment,
modification or waiver of any of the terms of this Agreement or the Preferred
Shares; and (ii) all reasonable fees, costs and expenses of Purchaser (including
reasonable fees of a single counsel for the Holders) in connection with any
default by the Company hereunder or under the Certificate of Designations or in
connection with any enforcement action or other proceedings relating hereto or
thereto (including, without limitation, the enforcement of this Section 11.04).
(b) Certain Taxes, Etc. Except as otherwise provided in Section
11.04(c), the Company shall pay all taxes (other than Federal, state or local
income taxes) which may be payable in connection with the execution and delivery
of this Agreement or the issuance and sale of the Preferred Shares hereunder or
in connection with any modification of this Agreement or the Certificate of
Designations and shall hold each Holder harmless without limitation as to time
against any and all liabilities with respect to all such taxes. The obligations
of the Company under this Section 11.04(b) shall survive any redemption,
repurchase or acquisition of the Preferred Shares by the Company and the
termination of this Agreement.
(c) Transfer Taxes, Etc. The Company shall pay any and all expenses,
transfer taxes and other charges, including all costs associated with the
preparation, issue and delivery of stock certificates, that are incurred in
respect of the issuance or delivery of shares of Common Stock upon conversion of
the Preferred Shares or in connection with any transfer, division or combination
of the Preferred Shares pursuant to Section of the Certificate of Designations.
The Company shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of shares of
Common Stock in a name other than that in which the relevant Preferred Shares
are is registered, and no such issue or delivery shall be made unless and until
the Person requesting such issue has paid to the Company the amount of any such
tax, or has established, to the satisfaction of the Company, that such tax has
been paid.
11.05 Amendments, Etc. Except as otherwise expressly provided in
this Agreement, any provision of this Agreement may be amended or modified only
by an instrument in writing signed by the Company and the Holders of at least
66-2/3% of the Restricted Preferred Shares; provided that (a) the consent of the
Holders of Restricted Preferred Shares shall not be required with respect to any
amendment or waiver which does not affect the rights or benefits of such Holders
under this Agreement, (b) the consent of the Holders of Restricted Stock shall
be required with respect to any amendment or waiver of Section 10, and (c) no
such amendment or waiver shall, without the written consent of all Holders of
Restricted Stock and Restricted Preferred Shares at the time outstanding, amend
this Section 11.05.
29
11.06 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
11.07 Survival. All representations and warranties made by the
Company herein or in any certificate or other instrument delivered by it or on
its behalf under this Agreement shall be considered to have been relied upon by
Purchaser and shall survive the execution and delivery of this Agreement and the
issuance of the Preferred Shares or the Underlying Common Stock regardless of
any investigation made by or on behalf of Purchaser. All representations and
warranties made by Purchaser herein shall be considered to have been relied upon
by the Company and shall survive the execution and delivery of this Agreement
and the issuance to Purchaser of the Preferred Shares, the Underlying Common
Stock and any Other Securities regardless of any investigation made by or on
behalf of the Company.
11.08 Captions. The captions and section headings appearing herein
are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
11.09 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
11.10 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) The Company hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that Purchaser may otherwise have to bring any action or
proceeding relating to this Agreement against the Company or its properties in
the courts of any jurisdiction.
(c) The Company hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in Section 11.10(b). Each of the parties hereto hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
30
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 11.02. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
11.11 Severability. In the event that 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.
11.12 Entire Agreement. This Agreement supersedes all prior
discussions and agreements between the parties with respect to the subject
matter hereof, and (together with the Warrants) contains the sole and entire
agreement among the parties hereto with respect to the subject matter hereof.
11.13 No Third Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto, their
respective successors and permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights upon any other Person.
11.14 Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.14.
31
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
NUCO2 INC.
By: /s/ Xxxx X. Xxxxxxxx
------------------------
Name: Xxxx X. Xxxxxxxx
Title: General Counsel and Secretary
Address for Notices:
NUCO2 INC.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
NUCO2 INC.
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
32
CHASE CAPITAL INVESTMENTS, L.P.
By Chase Capital Partners,
its general partner
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: General Partner - Mezzanine
Address for Notices:
CHASE CAPITAL PARTNERS
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq. and
Xxxx X. X'Xxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
33
