LEAR CORPORATION REGISTRATION RIGHTS AGREEMENT
XXXX
CORPORATION
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this
“Agreement”) is made and entered into as of
July 9, 2007, by and among Xxxx Corporation, a Delaware
corporation (the “Company”) and AREP Car
Holding Corp., a Delaware corporation (“AREP”).
WHEREAS, pursuant to an Agreement and Plan of Merger dated
February 9, 2007, as amended as of the date hereof, by and
among the Company, AREP and AREP Car Acquisition Corp., a
Delaware corporation (the “Merger Agreement”),
upon the occurrence of certain events set forth in the Merger
Agreement, the Company may be obligated to issue to AREP
335,570 shares of common stock, par value $0.01 per share,
of the Company (the “Shares”), which have been
valued at $37.25 per share for an aggregate valuation
(“Value”) of $12,500,000;
WHEREAS, the Shares, if issued, will be acquired in a
transaction exempt from the registration requirements of the
Securities Act of 1933, as amended (the “’33
Act”) and the rules and regulations of the United
States Securities and Exchange Commission (the
“SEC”); and
WHEREAS, if the Shares are issued, the Company has agreed to
register the Shares for resale under the ’33 Act, and the
parties wish to agree on the terms and conditions under which
the Shares, if issued, will be registered under the ’33 Act.
NOW, THEREFORE, if the Shares are issued, the parties agree as
follows:
1. Registration Rights.
(a) Within thirty (30) days after the date on which
the Shares are issued (the “Filing Deadline”),
the Company shall prepare and file with the SEC a
“Shelf” Registration Statement (the
“Registration Statement”) covering the resale
of the Shares (“Registrable Securities”) for an
offering to be made on a continuous basis pursuant to
Rule 415. The Registration Statement shall be on
Form S-3
(except if the Company is not then eligible to register for
resale the Shares on
Form S-3,
in which case such registration shall be on another appropriate
form). In the event that the Registration Statement has not been
filed by the Filing Deadline, the Company will pay AREP a fee
equal to 0.5% of the Value.
(b) The Company shall use its best efforts to cause the
Registration Statement to be declared effective upon filing with
the SEC or as promptly as possible after the filing thereof and
shall use its best efforts to keep the Registration Statement
continuously effective under the ’33 Act until such time as
AREP receives an opinion acceptable to AREP from Company counsel
to the effect that the Registrable Securities may be resold in a
transaction exempt from the registration requirements of the
’33 Act without regard to any volume or other restrictions
under the ’33 Act (the “Effectiveness
Period”). In the event that the Registration Statement
is not declared effective within one hundred twenty
(120) days after the date on which the Shares are issued
(the “Effectiveness Deadline”), the Company
will pay AREP a fee equal to 0.5% of the Value. In addition,
every sixty (60) days from the Effectiveness Deadline until
the Registration Statement is declared effective, the Company
shall pay to AREP an amount in cash equal to 0.5% of the Value,
accruing daily and prorated for any partial period;
provided, however, that the aggregate amount of
liquidated damages for which the Company is liable pursuant to
Sections 1(a) and 1(b) shall not exceed five percent (5%)
of the Value. The payment of any of these fees does not relieve
the Company of its registration obligations under this section.
(c) The Company shall notify AREP in writing promptly that
the Registration Statement has become effective.
(d) Notwithstanding anything to the contrary in this
Agreement, the Company may, one time in any twelve
(12) month period, for up to a maximum of seventy-five
(75) days, delay the filing or effectiveness of a
Registration Statement or suspend the effectiveness of a
Registration Statement if the Company shall have determined in
good faith, upon advice of counsel, that it would be required to
disclose any significant corporate development which disclosure
would have a material effect on the Company.
(e) So long as the Company pursues in good faith its
obligations under this Agreement, the fees provided for in these
sections shall be treated as liquidated damages and the Company
shall have no further liability to AREP,
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provided however, that if the Company is not so
pursuing its obligations under this Agreement in good faith,
AREP shall be entitled to claim damages in addition to the fees
owed under these sections.
2. Registration Procedures. In connection
with the Company’s registration obligations hereunder, the
Company shall:
(a) Not less than three business days prior to the filing
of a Registration Statement or any related prospectus or any
amendment or supplement thereto (including any document that
would be incorporated or deemed to be incorporated therein by
reference), the Company shall (i) furnish to AREP copies of
all such documents proposed to be filed, which documents (other
than those incorporated or deemed to be incorporated by
reference) will be subject to the review of AREP (it being
understood that such review must be completed within three
business days of receipt of the applicable documents), and
(ii) cause its officers and directors, counsel and
independent certified public accountants to respond to such
inquiries as shall be necessary, in the reasonable opinion of
respective counsel, to conduct a reasonable investigation within
the meaning of the ’33 Act.
(b) (i) Prepare and file with the SEC such amendments,
including post-effective amendments, to each Registration
Statement and the prospectus used in connection therewith as may
be necessary to keep the Registration Statement continuously
effective as to the Registrable Securities for the Effectiveness
Period and prepare and file with the SEC such additional
Registration Statements in order to register for resale under
the ’33 Act all of the Registrable Securities;
(ii) cause the related prospectus to be amended or
supplemented by any required prospectus supplement, and as so
supplemented or amended to be filed; (iii) respond promptly
to any comments received from the SEC with respect to the
Registration Statement or any amendment thereto; and
(iv) comply in all material respects with the provisions of
the ’33 Act with respect to the disposition of all
Registrable Securities covered by the Registration Statement
during the applicable period in accordance with the intended
methods of disposition by AREP thereof set forth in the
Registration Statement as so amended or in such prospectus as so
supplemented.
(c) Notify AREP promptly of any of the following events:
(i) the SEC notifies the Company whether there will be a
“review” of any Registration Statement; (ii) the
SEC comments in writing on any Registration Statement covering
Registrable Securities; (iii) any Registration Statement or
any post-effective amendment is declared effective;
(iv) the SEC or any other Federal or state governmental
authority requests any amendment or supplement to any
Registration Statement or prospectus or requests additional
information related thereto; (v) the SEC issues any stop
order suspending the effectiveness of any Registration Statement
or initiates any proceedings for that purpose; (vi) the
Company receives notice of any suspension of the qualification
or exemption from qualification of any Registrable Securities
for sale in any jurisdiction, or the initiation or threat of any
proceeding for such purpose; or (vii) the financial
statements included in any Registration Statement become
ineligible for inclusion therein or any statement made in any
Registration Statement or prospectus or any document
incorporated or deemed to be incorporated therein by reference
is untrue in any material respect or any revision to a
Registration Statement, prospectus or other document is required
so that it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(d) Furnish to AREP, without charge, at least one conformed
copy of each Registration Statement and each amendment thereto,
including financial statements and schedules, all documents
incorporated or deemed to be incorporated therein by reference,
and all exhibits to the extent requested by such person
(including those previously furnished or incorporated by
reference) promptly after the filing of such documents with the
SEC.
(e) Promptly deliver to AREP, without charge, as many
copies of the prospectus or prospectuses (including each form of
prospectus) and each amendment or supplement thereto as AREP may
reasonably request.
(f) Prior to any public offering of Registrable Securities,
use its commercially reasonable best efforts to register or
qualify or cooperate with AREP in connection with the
registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities
for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as AREP requests in
writing, to keep each such registration or qualification (or
exemption therefrom) effective during the Effectiveness Period
and to do any and all other acts or
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things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by a
Registration Statement.
(g) Upon the occurrence of any event described in
Section 2(c), promptly prepare a supplement or amendment,
including a post-effective amendment, to the Registration
Statement or a supplement to the related prospectus or any
document incorporated or deemed to be incorporated therein by
reference, and file any other required document so that, as
thereafter delivered, neither the Registration Statement nor
such prospectus will contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(h) Comply with all applicable rules and regulations of the
SEC.
(i) Enter into and perform its obligations under an
underwriting agreement, in usual and customary form, including,
without limitation, by providing customary legal opinions,
comfort letters and indemnification and contribution
obligations, in the event that AREP notifies the Company of its
intent to resell the Registrable Securities pursuant to an
underwritten offering and of the selected underwriter(s) for
such offering.
(j) In connection with the registration of the Registrable
Securities, it shall be a condition precedent to the obligations
of the Company to complete the registration pursuant to this
Agreement with respect to the Registrable Securities that AREP
shall furnish to the Company such information reasonably
requested by it to complete the Registration Statement.
3. Registration Expenses. The Company
shall pay the following expenses incident to the performance of
or compliance with its obligations under Sections 1, 2, 3
and 4 of this Agreement: (i) all registration and filing
fees and expenses, including without limitation those related to
filings with the SEC and in connection with applicable state
securities or Blue Sky laws, (ii) printing expenses
(including without limitation expenses of printing prospectuses
requested by AREP), (iii) fees and expenses of all persons
retained by the Company in connection with the consummation of
the transactions contemplated by this Agreement, and
(D) all listing fees to be paid by the Company to the New
York Stock Exchange and the reasonable fees and expenses of one
counsel for AREP. The Company shall not be obligated to pay, if
applicable, any underwriting discounts and commissions with
respect to the sale of the Shares.
4. Indemnification.
(a) Indemnification by the Company. The
Company shall, notwithstanding any termination of this
Agreement, indemnify and hold harmless AREP, its officers,
directors, partners, members, agents, and employees, each person
who controls AREP (within the meaning of Section 15 of the
’33 Act or Section 20 of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”)) and
the officers, directors, partners, members, agents and employees
of each such controlling person, to the fullest extent permitted
by applicable law, from and against any and all losses, as
incurred, arising out of or relating to any untrue or alleged
untrue statement of a material fact contained in the
Registration Statement, any prospectus or any form of prospectus
or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or
alleged omission of a material fact required to be stated
therein or necessary to make the statements therein (in the case
of any prospectus or form of prospectus or supplement thereto,
in the light of the circumstances under which they were made)
not misleading, except to the extent, but only to the extent,
that (i) such untrue statements, alleged untrue statements,
omissions or alleged omissions are based solely upon information
regarding AREP furnished in writing to the Company by AREP
expressly for use therein, or to the extent that such
information relates to AREP’s proposed method of
distribution of the Shares and was reviewed and approved in
writing by AREP expressly for use in the Registration Statement,
such prospectus or such form of prospectus or in any amendment
or supplement thereto or (ii) in the case of an occurrence
of an event of the type specified in Section 2(c), the use
by AREP of an outdated or defective prospectus after the Company
has notified AREP in writing that the prospectus is outdated or
defective. The Company shall notify AREP promptly of the
institution, threat or assertion of any proceeding of which the
Company is aware in connection with the transactions
contemplated by this Agreement.
(b) Indemnification by AREP. AREP shall
indemnify and hold harmless the Company, its directors,
officers, agents and employees, each person who controls the
Company (within the meaning of Section 15 of the ’33
Act and Section 20 of the Exchange Act), and the directors,
officers, agents or employees of such controlling persons, to
the
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fullest extent permitted by applicable law, from and against all
losses (as determined by a court of competent jurisdiction in a
final judgment not subject to appeal or review) arising solely
out of any untrue statement of a material fact contained in the
Registration Statement, any prospectus, or any form of
prospectus, or in any amendment or supplement thereto, or
arising solely out of any omission of a material fact required
to be stated therein or necessary to make the statements therein
(in the case of any prospectus or form of prospectus or
supplement thereto, in the light of the circumstances under
which they were made) not misleading to the extent, but only to
the extent, that such untrue statement or omission is contained
in any information so furnished in writing by AREP to the
Company specifically for inclusion in such Registration
Statement or such prospectus or to the extent that (i) such
untrue statements or omissions are based solely upon information
regarding AREP furnished in writing to the Company expressly for
use therein, or to the extent that such information relates to
AREP or AREP’s proposed method of distribution of the
Shares and was reviewed and expressly approved in writing by
AREP expressly for use in the Registration Statement, such
prospectus or such form of prospectus or in any amendment or
supplement thereto or (ii) in the case of an occurrence of
an event of the type specified in Section 2(c), the use by
AREP of an outdated or defective prospectus after the Company
has notified AREP in writing that the prospectus is outdated or
defective. In no event shall the liability of AREP hereunder be
greater in amount than the dollar amount of the net proceeds
received by AREP upon the sale of the Shares giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings.
(i) If any proceeding shall be brought or asserted against
any person entitled to indemnity hereunder (an
“Indemnified Party”), such Indemnified Party
shall promptly notify the person from whom indemnity is sought
(the “Indemnifying Party”) in writing, and the
Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the
Indemnified Party and the payment of all fees and expenses
incurred in connection with defense thereof; provided, that the
failure of any Indemnified Party to give such notice shall not
relieve the Indemnifying Party of its obligations or liabilities
pursuant to this Agreement, except (and only) to the extent that
it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have proximately and
materially adversely prejudiced the Indemnifying Party.
(ii) An Indemnified Party shall have the right to employ
separate counsel in any such proceeding and to participate in
the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or Parties
unless: (I) the Indemnifying Party has agreed in writing to
pay such fees and expenses; or (II) the Indemnifying Party
shall have failed promptly to assume the defense of such
proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such proceeding; or (III) the
named parties to any such proceeding (including any impleaded
parties) include both such Indemnified Party and the
Indemnifying Party, and such Indemnified Party shall have been
advised by counsel that a conflict of interest is likely to
exist if the same counsel were to represent such Indemnified
Party and the Indemnifying Party (in which case, if such
Indemnified Party notifies the Indemnifying Party in writing
that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and such counsel shall be at
the expense of the Indemnifying Party). The Indemnifying Party
shall not be liable for any settlement of any such proceeding
effected without its written consent, which consent shall not be
unreasonably withheld. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any
settlement of any pending proceeding in respect of which any
Indemnified Party is a party, unless such settlement includes an
unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such
proceeding.
(iii) All fees and expenses of the Indemnified Party
(including reasonable fees and expenses to the extent incurred
in connection with investigating or preparing to defend such
proceeding in a manner not inconsistent with this Section) shall
be paid to the Indemnified Party, as incurred, within ten
business days of written notice thereof to the Indemnifying
Party (regardless of whether it is ultimately determined that an
Indemnified Party is not entitled to indemnification hereunder;
provided, that the Indemnifying Party may require such
Indemnified Party to undertake to reimburse all such fees and
expenses to the extent it is finally judicially determined that
such Indemnified Party is not entitled to indemnification
hereunder).
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(d) Contribution.
(i) If a claim for indemnification under Sections 4(a)
or 4(b) is unavailable to an Indemnified Party (by reason of
public policy or otherwise), then each Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to
the amount paid or payable by such Indemnified Party as a result
of such losses, in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Party and Indemnified
Party in connection with the actions, statements or omissions
that resulted in such losses as well as any other relevant
equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by
reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission of a material
fact, has been taken or made by, or 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 action,
statement or omission. The amount paid or payable by a party as
a result of any losses shall be deemed to include, subject to
the limitations set forth in Section 4(c), any reasonable
attorneys’ or other reasonable fees or expenses incurred by
such party in connection with any proceeding to the extent such
party would have been indemnified for such fees or expenses if
the indemnification provided for in this Section was available
to such party in accordance with its terms.
(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 4(d)
were determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this
Section 4(d), AREP shall not be required to contribute, in
the aggregate, any amount in excess of the amount by which the
proceeds actually received by AREP from the sale of the Shares
subject to the proceeding exceeds the amount of any damages that
AREP has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the ’33 Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
5. Miscellaneous.
(a) Governing Law. This Agreement shall
be construed in accordance with and governed for all purposes by
the laws of the State of New York applicable to contracts
executed and to be wholly performed within such State without
giving effect to its conflicts of laws principles thereof.
(b) Counterparts. This Agreement may be
executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and
delivered to the other party; provided that a facsimile
signature shall be considered due execution and shall be binding
upon the signatory thereto with the same force and effect as if
the signature were an original, not a facsimile signature.
(c) Headings. The headings of this
Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.
(d) Severability. If any provision of
this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this
Agreement in that jurisdiction or the validity or enforceability
of any provision of this Agreement in any other jurisdiction.
(e) Amendments. No provision of this
Agreement may be amended other than by an instrument in writing
signed by the Company and AREP. No provision hereof may be
waived other than by an instrument in writing signed by the
party against whom enforcement is sought.
(f) Notices. Any notices, consents,
waivers or other communications required or permitted to be
given under the terms of this Agreement must be in writing and
will be deemed to have been delivered: (i) upon receipt,
when delivered personally; (ii) upon receipt, when sent by
facsimile (provided confirmation of transmission is mechanically
or electronically generated and kept on file by the sending
party); or (iii) one business day after deposit with
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an overnight courier service, in each case properly addressed to
the party to receive the same. The addresses and facsimile
numbers for such communications shall be:
If to the Company:
Xxxx Corporation
00000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Executive Vice President and General Counsel
00000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
Executive Vice President and General Counsel
with a copy to (for information purposes only):
Winston & Xxxxxx LLP
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxx, Esq.
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxxx X. Xxxx, Esq.
If to AREP:
c/o Icahn
Associates Corp.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxxx Xxxxxxxx, and
Xxxxx Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxxx Xxxxxxxx, and
Xxxxx Xxxxxxx
with a copy to (for information purposes only):
c/o Icahn
Associates Corp.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxx Xxxxxxx, Esq.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: 000-000-0000
Attn: Xxxx Xxxxxxx, Esq.
or to such other address
and/or
facsimile number
and/or to
the attention of such other person as the recipient party has
specified by written notice given to each other party five
(5) days prior to the effectiveness of such change. Written
confirmation of receipt (i) given by the recipient of such
notice, consent, waiver or other communication,
(ii) mechanically or electronically generated by the
sender’s facsimile machine containing the time, date,
recipient facsimile number and an image of the first page of
such transmission or (iii) provided by an overnight courier
service shall be evidence of personal service, receipt by
facsimile or receipt from an overnight courier service in
accordance with clause (i), (ii) or (iii) above,
respectively.
(g) Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns. The Company
and AREP shall not assign this Agreement or any rights or
obligations hereunder without the prior written consent of the
other party, provided however that AREP may assign all or
any portion of its rights and obligations hereunder to no more
than ten (10) other parties, although such assignment shall
not relieve AREP of its obligations under this Agreement.
(h) No Third Party Beneficiaries. This
Agreement is intended for the benefit of the parties hereto and
their respective permitted successors and assigns, and is not
for the benefit of, nor may any provision hereof be enforced by,
any other person.
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(i) Further Assurances. Each party shall
do and perform, or cause to be done and performed, all such
further acts, and shall execute and deliver all such other
agreements, certificates, instruments and documents, as any
other party may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
(j) Termination. This Agreement shall
terminate if the Company no longer has any obligation to issue
the Shares pursuant to the Merger Agreement.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this
Registration Agreement as of the date first written above.
XXXX CORPORATION
| By: |
/s/ Xxxxxx
X. Xxxxxxxxx
|
Name: Xxxxxx X. Xxxxxxxxx
| Title: | Executive Vice President, General Counsel and Chief Administrative Officer |
AREP CAR HOLDING CORP.
| By: |
/s/ Xxxxxx
Xxxxx
|
Name: Xxxxxx Xxxxx
| Title: | Chief Financial Officer |
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