REGISTRATION RIGHTS AGREEMENT
Exhibit 4.7
This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”),
dated as of April 28, 2006, is
entered into by and between Xxxxx & Xxxxx Company, a Delaware corporation (including its
successors, the “Company”), and Kojaian Ventures L.L.C., a Michigan limited liability
company (“KV”) and Kojaian Holdings, LLC, a Michigan limited liability company (“KH”)
RECITALS
WHEREAS, simultaneously herewith the Company and KV are entering into that certain Series A
Preferred Stock Exchange Agreement dated as of April ___, 2006 (the “Exchange Agreement”) pursuant
to which and subject to the terms and conditions therein, 11,725 shares of Series A-1 Preferred
Stock, par value $.01 per share of the Company held by KV is to be exchanged for 11,173,925 shares
of Common Stock, par value $.01 per share of the Company (the “Common Stock”) and other
consideration;
WHEREAS, the Company is contemplating selling shares of Common Stock in an underwritten public
offering (the “Secondary Offering”), which Secondary Offering is to include shares of Common Stock
issuable to KV in the exchange contemplated by the Exchange Agreement;
WHEREAS, the Company has agreed to provide the Kojaian Investors with the registration rights
specified in this Agreement with respect to any shares of Common Stock held by the Kojaian
Investors or any other Holder on the terms and subject to the conditions set forth herein, which
rights shall apply to the shares of Common Stock to be sold by KV in the Secondary Offering.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
DEFINITIONS
1.1 Definitions. The following terms shall have the meanings set forth in this
Section 1.1:
“Affiliate” means, with respect to any Person, any other Person, directly or
indirectly, controlling, controlled by, or under common control with, such Person. For
purposes of this definition, the term “control” (including the correlative terms
“controlling”, “controlled by” and “under common control with”) means the possession,
directly or indirectly, of the power (a) to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise or (b) to obtain or possess 25% or more of the voting rights of a
Person or 25% or more of the economic ownership of a Person. For the avoidance of any
doubt, current, former and prospective employees, officers, directors, members, managers and
general partners of a Person and such individuals’ spouse, children, parents or any trust
created for the benefit of such spouse, children or parents, shall be deemed to be an
Affiliate of such Person.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any
similar federal statute, and the rules and regulations promulgated by the SEC thereunder.
“Excluded Registration” means a registration under the Securities Act of (i)
securities pursuant to one or more Demand Registrations pursuant to Section 2
hereof, (ii) securities registered on Form S-8 or any similar successor form, and (iii)
securities registered to effect the acquisition of, or combination with, another Person.
“Holder” means (i) the Kojaian Investors and (ii) any direct or indirect
transferee of Kojaian Investors who shall become a party to this Agreement in accordance
with Section 2.9 and has agreed in writing to be bound by the terms of this
Agreement.
“Kojaian Investors” means KV and KH and their respective Affiliates.
“Person” or “persons” means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or other agency or political subdivision thereof.
“Register,” “registered” and “registration” refer to a
registration effected by preparing and filing a registration statement in compliance with
the Securities Act, and the declaration or ordering of the effectiveness of such
registration statement.
“Registrable Shares” means the Common Stock owned by the Holders, whether owned
on the date hereof or acquired hereafter.
“Requesting Holders” shall mean the Kojaian Investors or any Holder(s)
requesting to have its (their) Registrable Shares included in any Demand Registration or
Shelf Registration.
“SEC” means the Securities and Exchange Commission or any other federal agency
at the time administering the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended, or any similar
federal statute, and the rules and regulations promulgated by the SEC thereunder.
1.2 Other Terms. For purposes of this Agreement, the following terms have the
meanings set forth in the section or agreement indicated.
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| Term | Section | |
Adverse Effect |
Section 2.1.5 | |
Advice |
Section 2.6 | |
Agreement |
Introductory Paragraph | |
CCU |
Introductory Paragraph | |
Common Stock |
Recitals | |
Company |
Introductory Paragraph | |
Demand Registration |
Section 2.1.1(a) | |
Demanding Shareholders |
Section 2.1.1(a) | |
Demand Request |
Section 2.1.1(a) | |
Inspectors |
Section 2.5(xiii) | |
NASD |
Section 2.5(q) | |
Piggyback Registration |
Section 2.2.1 | |
Records |
Section 2.5(xiii) | |
Registration Statement |
Recitals | |
Required Filing Date |
Section 2.1.1(b) | |
Seller Affiliates |
Section 2.8.1 | |
Shelf Registration |
Section 2.1.2 | |
Suspension Notice |
Section 2.6 |
1.3 Rules of Construction. Unless the context otherwise requires
(1) a term has the meaning assigned to it;
(2) “or” is not exclusive;
(3) words in the singular include the plural, and words in the plural include the
singular;
(4) provisions apply to successive events and transactions; and
(5) “herein,” “hereof” and other words of similar import refer to this Agreement as a
whole and not to any particular Article, Section or other subdivision.
ARTICLE 2
REGISTRATION RIGHTS
REGISTRATION RIGHTS
2.1 Demand Registration.
2.1.1 Request for Registration.
(a) Commencing on the date hereof, any Holder or Holders of Registrable Shares shall have the
right to require the Company to file a registration statement on Form X-0, X-0 or S-3 or any
similar or successor to such forms under the Securities Act for a public offering of all
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or part of its or their Registrable Shares (a “Demand Registration”), by delivering to
the Company written notice stating that such right is being exercised, naming, if applicable, the
Holders whose Registrable Shares are to be included in such registration (collectively, the
“Demanding Shareholders”), specifying the number of each such Demanding Shareholder’s
Registrable Shares to be included in such registration and, subject to Section 2.1.3
hereof, describing the intended method of distribution thereof (a “Demand Request”).
(b) Each Demand Request shall specify the aggregate number of Registrable Shares proposed to
be sold. Subject to Section 2.1.6, the Company shall file the registration statement in
respect of a Demand Registration as soon as practicable and, in any event, within forty-five (45)
days after receiving a Demand Request (the “Required Filing Date”) and shall use reasonable
best efforts to cause the same to be declared effective by the SEC as promptly as practicable after
such filing; provided, however, that:
(i) the Company shall not be obligated to effect a Demand Registration pursuant
to Section 2.1.1(a) within 60 days after the effective date of a previous
Demand Registration, other than a Shelf Registration pursuant to this Article
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(ii) the Company shall not be obligated to effect pursuant to Section
2.1.1(a) more than three Demand Registrations during any 12-month period.
2.1.2 Shelf Registration. With respect to any Demand Registration, the Requesting
Holders may request the Company to effect a registration of the Common Stock under a registration
statement pursuant to Rule 415 under the Securities Act (or any successor rule) (a “Shelf
Registration”).
2.1.3 Selection of Underwriters. At the request of a majority of the Requesting
Holders, the offering of Registrable Shares pursuant to a Demand Registration shall be in the form
of a “firm commitment” underwritten offering. The Holders of a majority of the Registrable Shares
to be registered in a Demand Registration shall select the investment banking firm or firms to
manage the underwritten offering, provided that such selection shall be subject to the consent of
the Company, which consent shall not be unreasonably withheld or delayed. No Holder may
participate in any registration pursuant to Section 2.1.1 unless such Holder (x) agrees to
sell such Holder’s Registrable Shares on the basis provided in any underwriting arrangements
described above and (y) completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms of such
underwriting arrangements; provided, however, that no such Holder shall be required to make any
representations or warranties in connection with any such registration other than representations
and warranties as to (a) such Holder’s ownership of his or its Registrable Shares to be transferred
free and clear of all liens, claims, and encumbrances, (b) such Holder’s power and authority to
effect such transfer, and (c) such matters pertaining to compliance with securities laws as may be
reasonably requested; provided, further, however, that the obligation of such Holder to indemnify
pursuant to any such underwriting arrangements shall be several, not joint and several, among such
Holders selling Registrable Shares, and the
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liability of each such Holder will be in proportion
thereto, and provided, further, that such
liability will be limited to the net amount received by such Holder from the sale of his or
its Registrable Shares pursuant to such registration.
2.1.4 Rights of Nonrequesting Holders. Upon receipt of any Demand Request, the
Company shall promptly (but in any event within ten (10) days) give written notice of such proposed
Demand Registration to all other Holders, who shall have the right, exercisable by written notice
to the Company within twenty (20) days of their receipt of the Company’s notice, to elect to
include in such Demand Registration such portion of their Registrable Shares as they may request.
All Holders requesting to have their Registrable Shares included in a Demand Registration in
accordance with the preceding sentence shall be deemed to be “Requesting Holders” for
purposes of this Section 2.1.
2.1.5 Priority on Demand Registrations. No securities to be sold for the account of
any Person (including the Company) other than a Requesting Holder shall be included in a Demand
Registration unless the managing underwriter or underwriters shall advise the Requesting Holders in
writing that the inclusion of such securities will not adversely affect the price, timing or
distribution of the offering or otherwise adversely affect its success (an “Adverse
Effect”).
2.1.6 Deferral of Filing. The Company may defer the filing (but not the preparation)
of a registration statement required by Section 2.1 until a date not later than sixty (60)
days after the Required Filing Date if (i) at the time the Company receives the Demand Request, the
Company or any of its Subsidiaries are 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 of directors of
the Company or a committee of the board of directors of the Company determines in good faith that
such disclosure would be materially detrimental to the Company and its shareholders, or (ii) prior
to receiving the Demand Request, the Company 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 2.1.6 shall be lifted, and the
requested registration statement shall be filed immediately, 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 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 2.1.6, the Company shall promptly (but in
any event within ten (10) days), upon determining to seek such deferral, deliver to each Requesting
Holder a certificate signed by an executive officer of the Company stating that the Company is
deferring such filing pursuant to this Section 2.1.6 and a general statement of the reason
for such deferral and an approximation of the anticipated delay. Within twenty (20) days after
receiving such certificate, the holders of a majority of the Registrable Shares held by the
Requesting Holders and for which registration was previously requested may withdraw such Demand
Request by giving notice to the Company; if withdrawn, the Demand Request shall be deemed not to
have been made for all purposes of this Agreement.
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The Company may defer the filing of a
particular registration statement pursuant to this Section
2.1.6(a) only once and may not defer the filing of more than one (1) registration
statement in any twelve (12) month period.
2.1.7 Initial Demand Registration. The registration statement on Form S-1 in respect
of the Secondary Offering shall hereby constitute the initial Demand Registration under this
Agreement (the “Initial Demand”). The Kojaian Investors shall specify the number of Registrable
Shares to be sold by it in the Secondary Offering in the manner specified in the Exchange
Agreement. The Company shall file the registration statement in respect of the Initial Demand as
soon as practicable and, in any event, within ten (10) days of the date hereof and shall use
reasonable best efforts to cause the same to be declared effective by the SEC as promptly as
practicable. The Kojaian Investors shall have the right to select the investment banking firms to
manage or participate in the Secondary Offering and to direct the replacement of such firms. It is
hereby acknowledged and agreed that there shall not be any Requesting Holders in the Secondary
Offering and that there shall not be any deferral of filing as provided by Section 2.1.6 hereof.
Except to the extent modified in this Section 2.1.7, the Initial Demand shall be subject to all of
the terms and provisions of this Agreement and shall constitute and be deemed to be a Demand
Registration.
2.2 Piggyback Registrations.
2.2.1 Right to Piggyback. Each time the Company proposes to register any of its
equity securities (other than pursuant to an Excluded Registration) under the Securities Act for
sale to the public (whether for the account of the Company or the account of any security holder of
the Company) (a “Piggyback Registration”), the Company shall give prompt written notice to
each Holder of Registrable Shares (which notice shall be given not less than twenty (20) days prior
to the anticipated filing date of the Company’s registration statement), which notice shall offer
each such Holder the opportunity to include any or all of its Registrable Shares in such
registration statement, subject to the limitations contained in Section 2.2.2 hereof. Each
Holder who desires to have its Registrable Shares included in such registration statement shall so
advise the Company in writing (stating the number of shares desired to be registered) within ten
(10) days after the date of such notice from the Company. Any Holder shall have the right to
withdraw such Holder’s request for inclusion of such Holder’s Registrable Shares in any
registration statement pursuant to this Section 2.2.1 by giving written notice to the
Company of such withdrawal. Subject to Section 2.2.2 below, the Company shall include in
such registration statement all such Registrable Shares so requested to be included therein;
provided, however, that the Company may at any time withdraw or cease proceeding with any such
registration if it shall at the same time withdraw or cease proceeding with the registration of all
other equity securities originally proposed to be registered.
2.2.2 Priority on Piggyback Registrations.
(a) If a Piggyback Registration is an underwritten offering and was initiated by the Company,
and if the managing underwriter advises the Company that the inclusion of Registrable Shares
requested to be included in the Registration Statement would cause an Adverse Effect, the Company
shall include in such registration statement (i) first, the securities
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the Company proposes to
sell, (ii) second, the Registrable Shares requested to be included in
such registration, pro rata among the Holders of such Registrable Shares on the basis of the
number of Registrable Shares owned by each such Holder, and (iii) third, any other securities
requested to be included in such registration. If as a result of the provisions of this
Section 2.2.2(a) any Holder shall not be entitled to include all Registrable Shares in a
registration that such Holder has requested to be so included, such Holder may withdraw such
Holder’s request to include Registrable Shares in such registration statement.
(b) If a Piggyback Registration is an underwritten offering and was initiated by a security
holder of the Company, and if the managing underwriter advises the Company that the inclusion of
Registrable Shares requested to be included in the Registration Statement would cause an Adverse
Effect, the Company shall include in such registration statement (i) first, the securities
requested to be included therein by the security holders requesting such registration and the
Registrable Shares requested to be included in such registration, pro rata among the holders of
such securities on the basis of the number of securities owned by each such holder, and (ii)
second, any other securities requested to be included in such registration (including securities to
be sold for the account of the Company). If as a result of the provisions of this Section
2.2.2(b) any Holder shall not be entitled to include all Registrable Shares in a registration
that such Holder has requested to be so included, such Holder may withdraw such Holder’s request to
include Registrable Shares in such registration statement.
(c) No Holder may participate in any registration statement in respect of a Piggyback
Registration hereunder unless such Holder (x) agrees to sell such Holder’s Registrable Shares on
the basis provided in any underwriting arrangements approved by the Company and (y) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other
documents, each in customary form, reasonably required under the terms of such underwriting
arrangements; provided, however, that no such Holder shall be required to make any representations
or warranties in connection with any such registration other than representations and warranties as
to (i) such Holder’s ownership of his or its Registrable Shares to be sold or transferred free and
clear of all liens, claims, and encumbrances, (ii) such Holder’s power and authority to effect such
transfer, and (iii) such matters pertaining to compliance with securities laws as may be reasonably
requested; provided, further, however, that the obligation of such Holder to indemnify pursuant to
any such underwriting arrangements shall be several, not joint and several, among such Holders
selling Registrable Shares, and the liability of each such Holder will be in proportion to, and
provided, further, that such liability will be limited to, the net amount received by such Holder
from the sale of his or its Registrable Shares pursuant to such registration.
2.2.3 Selection of Underwriters. If any Piggyback Registration is an underwritten
offering, any such investment banking firm selected to manage the offering shall not do so if the
Holders of a majority of the Registrable Shares included in such Piggyback Registration are Kojaian
Investors and such Holders reasonably object thereto.
2.3 SEC Form S-3. The Company shall use its commercially reasonable best efforts to
cause Demand Registrations to be registered on Form S-3 (or any successor form) once the Company
becomes eligible to use Form S-3, and if the Company is not then eligible under the
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Securities Act
to use Form S-3, Demand Registrations shall be registered on the form for which the Company then qualifies. The Company shall use its commercially reasonable best efforts to
become eligible to use Form S-3 and, after becoming eligible to use Form S-3, shall use its
commercially reasonable best efforts to remain so eligible.
2.4 Holdback Agreements.
2.4.1 The Company shall not effect any public sale or distribution of its equity securities,
or any securities convertible into or exchangeable or exercisable for such securities, during the
seven days prior to and during the 90-day period beginning on the effective date of any
registration statement in connection with a Demand Registration (other than a Shelf Registration)
or a Piggyback Registration, except pursuant to registrations on Form S-4 or Form S-8 or any
successor form or unless the underwriters managing any such public offering otherwise agree.
2.4.2 If any Holders of Registrable Shares notify the Company in writing that they intend to
effect an underwritten sale of Common Stock registered pursuant to a Shelf Registration pursuant
to Article 2 hereof, the Company shall not effect any public sale or distribution of its
equity securities, or any securities convertible into or exchangeable or exercisable for its equity
securities, during the seven days prior to and during the 90-day period beginning on the date such
notice is received, except pursuant to registrations on Form S-4 or Form S-8 or any successor form
or unless the underwriters managing any such public offering otherwise agree.
2.5 Registration Procedures. Whenever any Holder has requested that any Registrable
Shares be registered pursuant to this Agreement, the Company will use its commercially reasonable
best efforts to effect the registration and the sale of such Registrable Shares in accordance with
the intended method of disposition thereof as promptly as is practicable, and pursuant thereto the
Company will as expeditiously as possible:
(a) prepare and file with the SEC, pursuant to Section 2.1.1(b) with respect to any
Demand Registration, a registration statement on any appropriate form under the Securities Act with
respect to such Registrable Shares and use its commercially reasonable best efforts to cause such
registration statement to become effective, provided that as far in advance as practicable before
filing such registration statement or any amendment thereto, the Company will furnish to the
selling Holders copies of reasonably complete drafts of all such documents prepared to be filed
(including exhibits), and any such Holder shall have the opportunity to object to any information
contained therein and the Company will make corrections reasonably requested by such Holder with
respect to such information prior to filing any such registration statement or amendment;
(b) except in the case of a Shelf Registration, prepare and file with the SEC such amendments,
post-effective amendments, and supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such registration statement effective for a
period of not less than one hundred eighty (180) days (or such lesser period as is necessary for
the underwriters in an underwritten offering to sell unsold allotments)
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and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in such registration statement;
(c) in the case of a Shelf Registration, prepare and file with the SEC 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 disposition of all Registrable Shares subject thereto for a
period ending on the earlier of (x) 24 months after the effective date of such registration
statement and (y) the date on which all the Registrable Shares subject thereto have been sold
pursuant to such registration statement;
(d) furnish to each seller of Registrable Shares and the underwriters of the securities being
registered such number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including each preliminary
prospectus), any documents incorporated by reference therein and such other documents as such
seller or underwriters may reasonably request in order to facilitate the disposition of the
Registrable Shares owned by such seller or the sale of such securities by such underwriters (it
being understood that, subject to Section 2.6 and the requirements of the Securities Act
and applicable state securities laws, the Company consents to the use of the prospectus and any
amendment or supplement thereto by each seller and the underwriters in connection with the offering
and sale of the Registrable Shares covered by the registration statement of which such prospectus,
amendment or supplement is a part);
(e) use its commercially reasonable best efforts to register or qualify such Registrable
Shares under such other securities or blue sky laws of such jurisdictions as the managing
underwriter reasonably requests (or, in the event the registration statement does not relate to an
underwritten offering, as the holders of a majority of such Registrable Shares may reasonably
request); use its commercially reasonable best efforts to keep each such registration or
qualification (or exemption therefrom) effective during the period in which such registration
statement is required to be kept effective; and do any and all other acts and things which may be
reasonably necessary or advisable to enable each seller to consummate the disposition of the
Registrable Shares owned by such seller in such jurisdictions (provided, however, that the Company
will not be required to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph or (ii) consent to general service of
process in any such jurisdiction);
(f) promptly notify each seller and each underwriter and (if requested by any such Person)
confirm such notice in writing (i) when a prospectus or any prospectus supplement or post-effective
amendment has been filed and, with respect to a registration statement or any post-effective
amendment, when the same has become effective, (ii) of the issuance by any state securities or
other regulatory authority of any order suspending the qualification or exemption from
qualification of any of the Registrable Shares under state securities or “blue sky” laws or the
initiation of any proceedings for that purpose, and (iii) of the happening of any event which makes
any statement made in a registration statement or related prospectus untrue or which requires the
making of any changes in such registration statement, prospectus or documents so
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that they will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein not misleading,
and, as promptly as practicable thereafter, prepare and file with the SEC and furnish a supplement
or amendment to such prospectus so that, as thereafter deliverable to the purchasers of such
Registrable Shares, such prospectus will not contain any untrue statement of a material fact or
omit a material fact necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading;
(g) permit any selling Holder, which in such Holder’s sole and exclusive judgment, might
reasonably be deemed to be an underwriter or a controlling person of the Company, to participate in
the preparation of such registration or comparable statement and to require the insertion therein
of material, furnished to the Company in writing, which in the reasonable judgment of such Holder
and its counsel should be included;
(h) make reasonably available members of management of the Company, as selected by the Holders
of a majority of the Registrable Shares included in such registration, for assistance in the
selling effort relating to the Registrable Shares covered by such registration, including, but not
limited to, the participation of such members of the Company’s management in road show
presentations;
(i) otherwise use its commercially reasonable best efforts to comply with all applicable rules
and regulations of the SEC, including the Securities Act and the Exchange Act and the rules and
regulations promulgated thereunder and timely file complete and accurate information on Forms 10-Q,
10-K and 8-K under the Exchange Act and file with the SEC and make available an earnings statement
which complies with Rule 158 under the Securities Act at the earliest reasonable date;
(j) if requested by the managing underwriter or any seller, promptly incorporate in a
prospectus supplement or post-effective amendment such information as the managing underwriter or
any seller reasonably requests to be included therein, including, without limitation, with respect
to the Registrable Shares being sold by such seller, the purchase price being paid therefor by the
underwriters and with respect to any other terms of the underwritten offering of the Registrable
Shares to be sold in such offering, and promptly make all required filings of such prospectus
supplement or post-effective amendment;
(k) as promptly as practicable after filing with the SEC of any document which is
incorporated by reference into a registration statement (in the form in which it was
incorporated), deliver a copy of each such document to each seller;
(l) cooperate with the sellers and the managing underwriter to facilitate the timely preparation
and delivery of certificates (which shall not bear any restrictive legends unless required under
applicable law) representing securities sold under any registration statement, and enable such
securities to be in such denominations and registered in such names as the managing underwriter or
such sellers may request and keep available and make available to the Company’s transfer agent
prior to the effectiveness of such registration statement a supply of such certificates;
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(m) promptly make available for inspection by any seller, any underwriter
participating in any disposition pursuant to any registration statement, and any attorney,
accountant or other agent or representative retained by any such seller or underwriter
(collectively, the “Inspectors”), all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the “Records”), as shall be
reasonably necessary to enable them to exercise their due diligence responsibility, and cause the
Company’s officers, directors and employees to supply all information requested by any such
Inspector in connection with such registration statement; provided, however, that, unless the
disclosure of such Records is necessary to avoid or correct a misstatement or omission in the
registration statement or the release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, the Company shall not be required to provide any
information under this subparagraph if (i) the Company believes, after consultation with counsel
for the Company, that to do so would cause the Company to forfeit an attorney-client privilege
that was applicable to such information or (ii) if either (A) the Company has requested and been
granted from the SEC confidential treatment of such information contained in any filing with the
SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in
good faith that such Records are confidential and so notifies the Inspectors in writing, unless
prior to furnishing any such information with respect to clause (ii) such Holder of Registrable
Shares requesting such information agrees to enter into a confidentiality agreement in customary
form and subject to customary exceptions; and provided, further, that each Holder of Registrable
Shares agrees that it will, upon learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the Company, at its expense, to
undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(n) furnish to each seller and underwriter a signed counterpart of (i) an opinion or opinions
of counsel to the Company, and (ii) a comfort letter or comfort letters from the Company’s
independent public accountants, each in customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the case may be, as the sellers or managing
underwriter reasonably requests;
(o) cause the Registrable Shares included in any registration statement to be (i) listed on
each securities exchange, if any, on which similar securities issued by the Company are then
listed, or (ii) quoted on the National Association of Securities Dealers, Inc. Automated
Quotation System or the NASDAQ National Market if similar securities issued by the Company are
quoted thereon;
(p) provide a transfer agent and registrar for all Registrable Securities registered
hereunder;
(q) cooperate with each seller and each underwriter participating in the disposition of such
Registrable Shares and their respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. (“NASD”);
(r) during the period when the prospectus is required to be delivered under the Securities
Act, promptly file all documents required to be filed with the SEC pursuant to
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Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act;
(s) notify each seller of Registrable Shares promptly of any request by the SEC for the
amending or supplementing of such registration statement or prospectus or for additional
information;
(t) enter into such agreements (including underwriting agreements in the managing
underwriter’s customary form) as are customary in connection with an underwritten registration;
and
(u) advise each seller of such Registrable Shares, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the SEC suspending the
effectiveness of such registration statement or the initiation or threatening of any proceeding
for such purpose and promptly use its commercially reasonable best efforts to prevent the issuance
of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order
should be issued.
2.6 Suspension of Dispositions. Each Holder agrees by acquisition of any Registrable
Shares that, upon receipt of any notice (a “Suspension Notice”) from the Company of the
happening of any event of the kind described in Section 2.5(f)(iii) such Holder will
forthwith discontinue disposition of Registrable Shares until such Holder’s receipt of the copies
of the supplemented or amended prospectus, or until it is advised in writing (the “Advice”)
by the Company that the use of the prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the prospectus, and, if
so directed by the Company, such Holder will deliver to the Company all copies, other than
permanent file copies then in such Holder’s possession, of the prospectus covering such Registrable
Shares current at the time of receipt of such notice. In the event the Company shall give any such
notice, the time period regarding the effectiveness of registration statements set forth in
Sections 2.5(b) and 2.5(c) hereof shall be extended by the number of days during the period
from and including the date of the giving of the Suspension Notice to and including the date when
each seller of Registrable Shares covered by such registration statement shall have received the
copies of the supplemented or amended prospectus or the Advice. The Company shall use its
commercially reasonable best efforts and take such actions as are reasonably necessary to render
the Advice as promptly as practicable.
2.7 Registration Expenses.
2.7.1 Demand Registrations. All reasonable, out-of-pocket fees and expenses incident
to any Demand Registration including, without limitation, the Company’s performance of or
compliance with this Article 2, all registration and filing fees, all fees and expenses
associated with filings required to be made with the NASD (including, if applicable, the reasonable
fees and expenses of any “qualified independent underwriter” as such term is defined in Schedule E
of the Bylaws of the NASD, and of its counsel), as may be required by the rules and regulations of
the NASD, fees and expenses of compliance with securities or “blue sky” laws (including reasonable
fees and disbursements of counsel in connection with “blue sky” qualifications of the Registrable
Shares), rating agency fees, printing expenses (including
12
expenses of printing certificates for the
Registrable Shares in a form eligible for deposit with
Depository Trust Company and of printing prospectuses if the printing of prospectuses is
requested by a Holder of Registrable Shares), messenger and delivery expenses, the fees and
expenses incurred in connection with any listing or quotation of the Registrable Shares, fees and
expenses of counsel for the Company and its independent certified public accountants (including the
expenses of any special audit or “cold comfort” letters required by or incident to such
performance), the fees and expenses of any special experts retained by the Company in connection
with such registration and the fees and disbursements of a single counsel for a majority of the
Registrable Shares covered by any registration statement, will be borne by the Company whether or
not any registration statement becomes effective, and any underwriting discounts, commissions, or
fees attributable to the sale of the Registrable Shares, will be borne by the Holders pro rata on
the basis of the number of shares so registered.
2.7.2 Piggyback Registrations. All fees and expenses incident to any Piggyback
Registration including, without limitation, the Company’s performance of or compliance with
this Article 2, all registration and filing fees, all fees and expenses associated with
filings required to be made with the NASD (including, if applicable, the reasonable fees and
expenses of any “qualified independent underwriter” as such term is defined in Schedule E of the
Bylaws of the NASD, and of its counsel), as may be required by the rules and regulations of the
NASD, fees and expenses of compliance with securities or “blue sky” laws (including reasonable fees
and disbursements of counsel in connection with “blue sky” qualifications of the Registrable
Shares), rating agency fees, printing expenses (including expenses of printing certificates for the
Registrable Shares in a form eligible for deposit with Depository Trust Company and of printing
prospectuses), messenger and delivery expenses, the fees and expenses incurred in connection with
any listing or quotation of the Registrable Shares, fees and expenses of counsel for the Company
and its independent certified public accountants (including the expenses of any special audit or
“cold comfort” letters required by or incident to such performance), the fees and expenses of any
special experts retained by the Company in connection with such registration, the fees and expenses
of other persons retained by the Company and the fees and disbursements of a single counsel for a
majority of the Registrable Shares covered by any registration statement, will be borne by the
Company whether or not any registration statement becomes effective; provided, however, that any
underwriting discounts, commissions, or fees attributable to the sale of the Registrable Shares
will be borne by the Holders pro rata on the basis of the number of shares so registered.
2.8 Indemnification.
2.8.1 The Company agrees to indemnify and reimburse, to the fullest extent permitted by law,
each seller of Registrable Shares, and each of its employees, advisors, agents, representatives,
partners, members, managers, officers, and directors and each Person who controls such seller
(within the meaning of the Securities Act or the Exchange Act) and any agent or investment advisor
thereof (collectively, the “Seller Affiliates”) (a) against any and all losses, claims,
damages, liabilities, and expenses, joint or several (including, without limitation, attorneys’
fees and disbursements except as limited by Section 2.8.3) based upon, arising out of,
related to or resulting from (i) any untrue or alleged untrue statement of a material fact
contained in any registration statement, preliminary prospectus, final prospectus or summary
prospectuses
13
related thereto, or any amendment or supplement thereto, or any document incorporated
by reference therein (collectively, “Offering Documents”), or any omission or alleged omission of
a material fact required to be stated therein or necessary to make the statements therein not
misleading, or (ii) any violation or alleged violation of the Securities Act, the Exchange Act or
any other federal securities laws or any “blue sky” or state securities laws, (b) against any and
all loss, liability, claim, damage, and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever based upon,
arising out of, related to or resulting from (i) any such untrue statement or omission or alleged
untrue statement or omission, or (ii) any violations or alleged violations of the Securities Act,
the Exchange Act or other federal securities laws or “blue sky” or state securities laws, and (c)
against any and all costs and expenses (including reasonable fees and disbursements of counsel) as
may be reasonably incurred in investigating, preparing, or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon, arising out of, related to or resulting from (i) any such untrue
statement or omission or alleged untrue statement or omission, or (ii) any violation of the
Securities Act or Exchange Act or other federal securities laws or any “blue sky” or state
securities laws, to the extent that any such expense or cost is not paid under subparagraph (a) or
(b) above; except insofar as any such statements are made in reliance upon and in strict conformity
with information furnished in writing to the Company by such seller or any Seller Affiliate. The
reimbursements required by this Section 2.8.1 will be made by periodic payments during the
course of the investigation or defense, as and when bills are received or expenses incurred.
2.8.2 In connection with any registration statement in which a seller of Registrable Shares is
participating, each such seller will furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with any such registration
statement or prospectus and, to the fullest extent permitted by law, each such seller will
indemnify the Company and each of its employees, advisors, agents, representatives, partners,
officers and directors and each Person who controls the Company (within the meaning of the
Securities Act or the Exchange Act) and any agent or investment advisor thereof against any and all
losses, claims, damages, liabilities, and expenses (including, without limitation, reasonable
attorneys’ fees and disbursements except as limited by Section 2.8.3) resulting from any
untrue statement or alleged untrue statement of a material fact contained in the Offering Documents
or any omission or alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission is contained in any information or
affidavit so furnished in writing by such seller or any of its Seller Affiliates specifically for
inclusion in the registration statement; provided that the obligation to indemnify will be several,
not joint and several, among such sellers of Registrable Shares, and the liability of each such
seller of Registrable Shares will be in proportion to, and will be limited to, the net amount
received by such seller from the sale of Registrable Shares pursuant to such registration
statement.
2.8.3 Any Person entitled to indemnification hereunder will (a) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks indemnification (provided that
the failure to give such notice shall not limit the rights of such
14
Person) and (b) unless in such
indemnified party’s reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist with respect to such claim, permit
such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to
the indemnified party; provided, however, that any person entitled to indemnification hereunder
shall have the right to employ separate counsel and to participate in the defense of such claim,
but the fees and expenses of such counsel shall be at the expense of such person unless (x) the
indemnifying party has agreed to pay such fees or expenses, or (y) the indemnifying party shall
have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such
person, or (z) in the reasonable judgment of any such Person, based on the advice of its counsel,
as conflict of interest may exist between such Person and the indemnifying party with respect to
such claims (in which case, if the Person notifies the indemnifying party in writing that such
Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such claim on behalf of such Person). If
such defense is not assumed by the indemnifying party as permitted hereunder, the indemnifying
party will not be subject to any liability for any settlement made by the indemnified party without
its consent (but such consent will not be unreasonably withheld). If such defense is assumed by
the indemnifying party pursuant to the provisions hereof, such indemnifying party shall not settle
or otherwise compromise the applicable claim unless (1) such settlement or compromise contains a
full and unconditional release of the indemnified party or (2) the indemnified party otherwise
consents in writing. An indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for
all parties indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party, a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such claim, in which
event the indemnifying party shall be obligated to pay the reasonable fees and disbursements of
such additional counsel or counsels.
2.8.4 Each party hereto agrees that, if for any reason the indemnification provisions
contemplated by Section 2.8.1 or Section 2.8.2 are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities, or
expenses (or actions in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result of such losses,
claims, liabilities, or expenses (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the indemnified party in
connection with the actions which resulted in the losses, claims, damages, liabilities or expenses
as well as any other relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying party or indemnified party, and
the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 2.8.4 were determined by pro rata
allocation (even if the Holders or any underwriters or all of them were treated as one entity for
such purpose) or by any other method of allocation which does not take account of the equitable
considerations referred to in this Section 2.8.4. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities, or expenses (or actions
in respect thereof) referred to above
15
shall be deemed to include any legal or other fees or
expenses reasonably incurred by such
indemnified party in connection with investigating or, except as provided in Section
2.8.3, defending any such action or claim. Notwithstanding the provisions of this Section
2.8.4, no Holder shall be required to contribute an amount greater than the dollar amount by
which the net proceeds received by such Holder with respect to the sale of any Registrable Shares
exceeds the amount of damages which such Holder has otherwise been required to pay by reason of any
and all untrue or alleged untrue statements of material fact or omissions or alleged omissions of
material fact made in any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto related to such sale of Registrable Shares. 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. The Holders’ obligations in this Section 2.8.4 to contribute shall be
several in proportion to the amount of Registrable Shares registered by them and not joint.
If indemnification is available under this Section 2.8, the indemnifying parties shall
indemnify each indemnified party to the full extent provided in Section 2.8.1 and
Section 2.8.2 without regard to the relative fault of said indemnifying party or indemnified
party or any other equitable consideration provided for in this Section 2.8.4 subject, in
the case of the Holders, to the limited dollar amounts set forth in Section 2.8.2.
2.8.5 The indemnification and contribution provided for under this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf of the indemnified party
or any officer, director, or controlling Person of such indemnified party and will survive the
transfer of securities.
2.9 Transfer of Registration Rights. The rights of each Holder under this Agreement
may be assigned to any direct or indirect transferee of a Holder who agrees in writing to be
subject to and bound by all the terms and conditions of this Agreement.
2.10 Rule 144. The Company will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder
(or, if the Company is not required to file such reports, will, upon the request of the Holders,
make publicly available other information) and will take such further action as the Holders may
reasonably request, all to the extent required from time to time to enable the Holders to sell
Common Stock without registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such rule may be amended from time to time or
(ii) any similar rule or regulation hereafter adopted by the SEC. Upon the reasonable request of
any Holder, the Company will (1) deliver to such parties a written statement as to whether it has
complied with such requirements and will, at its expense, immediately upon the request of any such
Holder, deliver to such Holder a certificate, signed by the Company’s principal financial officer,
stating (a) the Company’s name, address and telephone number (including area code), (b) the
Company’s Internal Revenue Service identification number, (c) the Company’s SEC file number, (d)
the number of shares of each class of capital stock outstanding as shown by the most recent report
or statement published by the Company, and (e) whether the Company has filed the reports required
to be filed under the Exchange Act for a period of at least ninety (90) days prior to the date of
such certificate and in
16
addition has filed the most recent annual report required to be filed
thereunder and (2) remove
any restrictive legends on stock certificates, list such shares on the exchanges on which such
shares trade, and take such other action reasonably requested.
2.11 Reservation of Rights. The Company will not (a) grant any registration rights to
third parties which are more favorable than or inconsistent with the rights granted hereunder or
(b) enter into any agreement, take any action, or permit any change to occur, with respect to its
securities that violates or subordinates the rights expressly granted to the Holders in this
Agreement.
ARTICLE 3
TERMINATION
TERMINATION
3.1 Termination. The Holders may exercise the registration rights granted hereunder
in such manner and proportions as they shall agree among themselves. The registration rights
hereunder shall cease to apply to any particular Registrable Share when: (a) a registration
statement with respect to the sale of such shares of Common Stock shall have become effective under
the Securities Act and such shares of Common Stock shall have been disposed of in accordance with
such registration statement; (b) such shares of Common Stock shall have been sold to the public
pursuant to Rule 144 under the Securities Act (or any successor provision); (c) such shares shall
have ceased to be outstanding or (d) in the case of Registrable Shares held by a Holder that is not
a Kojaian Investor, such Holder holds less than three percent (3%) of the then outstanding
Registrable Shares and such Registrable Shares are eligible for sale pursuant to Rule 144(k) under
the Securities Act (or any successor provision). The Company shall promptly upon the request of
any Holder furnish to such Holder evidence of the number of Registrable Shares then outstanding.
ARTICLE 4
MISCELLANEOUS
MISCELLANEOUS
4.1 Governing Law. The interpretation and construction of this Agreement, and all
matters relating hereto, shall be governed by the laws of the State of Delaware applicable to
agreements executed and to be performed solely within such State, and each of the parties hereto
irrevocably consents to the venue and jurisdiction of the federal and state courts located in the
State of Delaware, County of Kent.
4.2 Headings. The Section headings used herein are for reference purposes only, and
shall not in any way affect the meaning or interpretation of this Agreement.
4.3 Publicity. Except as otherwise required by applicable federal securities laws, or
as otherwise agreed to by the parties, none of the parties hereto shall issue any press release or
make any other public statement, filing or disclosure relating to, in connection with or arising
out of this Agreement or the transactions contemplated herein. Any public statement, filing or
disclosure so issued or made by either party shall require the prior approval, not to be
unreasonably withheld, delayed or conditioned, of the other party hereto as to the contents and the
manner of presentation and publication thereof.
17
4.4 Notices. All notices, requests, demands, other communications and deliveries
required or desired to be given hereunder shall only be effective if given in writing by hand, by
certified or registered mail, return receipt requested, postage prepaid, or by U.S. express mail
service, or by private overnight mail service (e.g. Federal Express), or by facsimile transmission.
Any such notice, request, demand, other communication or delivery shall be deemed to have been
received (a) on the business day actually received if given by hand or facsimile transmission, (b)
on the business day immediately subsequent to mailing, if sent by U.S. express mail service or
private overnight mail service, or (c) three (3) business days following the mailing thereof, if
mailed by certified or registered mail, postage prepaid, return receipt requested, and all such
notices shall be sent to the following addresses (or to such other address or addresses as a party
may have advised the other in the manner provided herein):
| if to KV or KH, to: | ||||
| 00000 Xxxxxxxx Xxxxxx | ||||
| Xxxxx 000 | ||||
| Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000 | ||||
| Telephone No. | (000) 000-0000 | |||
| Facsimile No. | (000) 000-0000 | |||
| with a copy simultaneously by like means to: | ||||
| Xxxxxx Xxxxxxx, P.L.C. | ||||
| Third Floor | ||||
| 000 Xxxx Xxxxx Xxxx | ||||
| Xxxxxxxxxx, Xxxxxxxx 00000 | ||||
| Telephone No. | (000) 000-0000 | |||
| Facsimile No. | (000) 000-0000 | |||
| Attn: Xxxxxx X. Xxxxxx, Esq. | ||||
| if to the Company to: | ||||
| Xxxxx & Xxxxx Company | ||||
| 000 Xxxx Xxxxxx Xxxxxx | ||||
| Xxxxx 0000 | ||||
| Xxxxxxx, Xxxxxxxx 00000 | ||||
| Telephone No. | (000) 000-0000 | |||
| Facsimile No.
(000) 000-0000 |
||||
| Attn: Chief Executive Officer | ||||
| with a copy simultaneously by like means: | ||||
| Xxxxxxxx Xxxx & Brandeis, LLP | ||||
| 000 Xxxxx Xxxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
18
| Telephone No. | (000) 000-0000 | |||
| Facsimile No. | (000) 000-0000 |
|||
| Attention: | Xxxxxxxx X. Xxxxxxxx, Esq. |
If to any other Holder at the address indicated for such Holder in the Company’s stock transfer
records with copies, so long as any Kojaian Investor owns any Registrable Shares, to KV and KH as
provided above.
4.5 Authority. Each of the parties hereto represents to the other that (a) it has the
corporate power and authority to execute, deliver and perform this Agreement, (b) the execution,
delivery and performance of this Agreement by it has been duly authorized by all necessary
corporate action and no such further action is required, (c) it has duly and validly executed and
delivered this Agreement, and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’ rights generally and general
equity principles. This Agreement hereby replaces in its entirety the registration rights provided
to any Kojaian Investors pursuant to that certain Registration Rights Agreement dated as of
December 11, 1996 among the Company, certain Kojaian Investors and the other parties thereto.
4.6 Successors and Assigns. Except as otherwise expressly provided herein, this
Agreement shall be binding upon and benefit the Company, each Holder, and their respective
successors and assigns.
4.7 Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced under any Law or as a matter of public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full force and effect.
Upon such determination that any term or other provision is invalid, illegal or incapable of being
enforced, the parties to this Agreement shall negotiate in good faith to modify this Agreement so
as to effect the original intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated by this Agreement be consummated as originally
contemplated to the greatest extent possible.
4.8 Waivers. The observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively) by the party
entitled to enforce such term, but such waiver shall be effective only if it is in a writing signed
by the party against whom the existence of such waiver is asserted. Unless otherwise expressly
provided in this Agreement, no delay or omission on the part of any party in exercising any right
or privilege under this Agreement shall operate as a waiver thereof, nor shall any waiver on the
part of any party of any right or privilege under this Agreement operate as a waiver of any other
right or privilege under this Agreement nor shall any single or partial exercise of any right or
privilege preclude any other or further exercise thereof or the exercise of any other right or
privilege under this Agreement. No failure by either party to take any action or assert any right
or privilege hereunder shall be deemed to be a waiver of such right or privilege in the event of
the continuation or repetition of the circumstances giving rise to such right unless expressly
waived in writing by the party against whom the existence of such waiver is asserted.
19
4.9 Amendment. This Agreement may not be amended or modified in any respect
except by a written agreement signed by the Company, the Kojaian Investors (so long as the
Kojaian Investors owns any Common Stock) and the Holders of a majority of the then outstanding
Registrable Shares.
4.10 Counterparts. This Agreement may be executed in one or more counterparts, and by
the different parties to each such agreement in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile
or electronic mail shall be as effective as delivery of a manually executed counterpart of any such
Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
20
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights Agreement to be
duly executed as of the date first written above.
| COMPANY: | ||||||
| XXXXX & XXXXX COMPANY | ||||||
| By: | /s/ Xxxx X. Xxxx | |||||
| Name: Title: |
Xxxx X. Xxxx Chief Executive Officer |
|||||
| KOJAIAN VENTURES, L.L.C. | ||||||
| a Michigan limited liability company | ||||||
| By: | KOJAIAN VENTURES-MM, Inc. | |||||
| a Michigan Corporation, | ||||||
| Managing Member | ||||||
| By: | /s/ C. Xxxxxxx Xxxxxxx | |||||
| Name: Title: |
C. Xxxxxxx Xxxxxxx President |
|||||
| KOJAIAN HOLDINGS, LLC | ||||||
| By: | KOJAIAN MANAGEMENT | |||||
| CORPORATION, its Sole Member | ||||||
| By: | /s/ C. Xxxxxxx Xxxxxxx | |||||
| Name: Title: |
C. Xxxxxxx Xxxxxxx Executive Vice President |
|||||
21
