EXHIBIT 10.3
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (the "Agreement") is
entered into as of September 27, 1999 among Spinnaker Exploration Company
(formerly Spinco Exploration Company), a Delaware corporation (the
"Corporation"), and the Persons (as defined herein), other than the Corporation,
listed on the signature pages attached hereto, and their permitted successors
and assigns, and each owner of Common Stock or Preferred Stock, as defined
herein, who may hereafter execute in accordance with this Agreement a separate
agreement to be bound by the terms hereof. This Agreement shall be effective as
provided in Section 5.13.
W I T N E S S E T H:
WHEREAS, in connection with the conversion of the Corporation from a
limited liability company into a corporation, the parties hereto entered into
that certain Stockholders Agreement dated January 6, 1998 (the "Stockholders
Agreement"); and
WHEREAS, the parties hereto now desire, pursuant to Section 7.1 of the
Stockholders Agreement, to amend and restate the Stockholders Agreement to (i)
eliminate all provisions of the Stockholders Agreement, effective on the
completion of the initial public offering of the Corporation, except those
provisions relating to registration rights and miscellaneous matters and (ii)
waive the piggyback registration rights in connection with the Corporation's
initial public offering;
NOW, THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth, the parties hereto, intending to be legally bound, hereby
agree as follows:
ARTICLE I
GENERAL PROVISIONS;
REPRESENTATIONS AND WARRANTIES
1.1 CERTAIN TERMS. In addition to the terms defined elsewhere herein, when
used herein the following terms shall have the meanings indicated:
"Affiliate" of a Person means, any Person Controlling, Controlled by, or
Under Common Control with such Person.
"Board" means the Board of Directors of the Corporation.
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"Business Day" means any day other than a Saturday, a Sunday, or a holiday
on which national banking associations in the State of Texas are authorized by
Law to close.
"Certificate of Designation" means the Certificate of Designations,
Preferences and Rights of Series A Convertible Preferred Stock dated January 6,
1998.
"Common Stock" means shares of the common stock, par value $.01 per share,
of the Corporation.
"Common Stock Equivalents" means (without duplication with any other Common
Stock or Common Stock Equivalents) rights, warrants, options, convertible
securities (including Preferred Stock), or exchangeable securities or
indebtedness, or other rights, exercisable for or convertible or exchangeable
into, directly or indirectly, Common Stock or securities convertible or
exchangeable into Common Stock, whether at the time of issuance or upon the
passage of time or the occurrence of some future event.
"Contribution Agreement" means the Contribution Agreement by and among the
Corporation, WPV, XXXX, Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxxxxx, PGS, Spinnaker LLC
and certain unit holders of Spinnaker LLC dated January 6, 1998 and providing
for issuance of Common Stock and Preferred Stock.
"Control," including the correlative terms "Controlling", "Controlled by"
and "Under Common Control with" means possession, directly or indirectly, of the
power to direct or cause the direction of management or policies (whether
through ownership of securities or any partnership or other ownership interest,
by contract or otherwise) of a Person. For the purposes of the preceding
sentence, control shall be deemed to exist when a Person possesses, directly or
indirectly, through one or more intermediaries (i) in the case of a corporation,
more than 50% of the outstanding voting securities thereof; (ii) in the case of
a limited liability company, partnership, limited partnership or venture, the
right to more than 50% of the distributions therefrom (including liquidating
distributions); or (iii) in the case of any other Person, more than 50% of the
economic or beneficial interest therein.
"Corporation" means Spinnaker Exploration Company (formerly Spinco
Exploration Company), a Delaware corporation.
"Director" means a member of the Board.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Securities and Exchange Commission
thereunder.
"Fully-Diluted Common Stock" means, at any time, the then outstanding
Common Stock plus (without duplication) (i) all shares of Common Stock issuable
upon the conversion of the then outstanding Preferred Stock, (ii) all shares of
Common Stock issuable upon the conversion of the Preferred Stock
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that could be issued under the Contribution Agreement (assuming that the maximum
number of shares of Preferred Stock subject to the Contribution Agreement are
issued), (iii) all shares of Common Stock issuable upon exercise of options
issued under the Stock Option Plan (whether vested or unvested) and (iv) all
shares of Common Stock issuable to XXXX pursuant to Section 3(a) of the
Contribution Agreement.
"Group A Holders" means WPV and each transferee of Common Stock or
Preferred Stock directly or indirectly (in a chain of title) from WPV; provided
that, once a Person is designated a Group A Holder, such Group A Holder and each
of its Affiliates shall, as long as it owns any Shares, at all times be a Group
A Holder and shall not be a Group B Holder or Group C Holder even if such Group
A Holder or its Affiliates acquire Shares from a Group B Holder or from a Group
C Holder.
"Group B Holders" means XXXX and each transferee of Common Stock or
Preferred Stock directly or indirectly (in a chain of title) from XXXX; provided
that, once a Person is designated a Group B Holder, such Group B Holder and each
of its Affiliates shall, as long as it owns any Shares, at all times be a Group
B Holder and shall not be a Group A Holder or Group C Holder even if such Group
B Holder or its Affiliates acquire Shares from a Group A Holder or from a Group
C Holder.
"Group C Holders" means (a) the Management Group and each transferee of
Common Stock or Preferred Stock directly or indirectly (in a chain of title)
from the Management Group and (b) each Person that acquired Shares upon the
exercise of options under the Stock Option Plan and each transferee of Common
Stock or Preferred directly or indirectly (in a chain of title) from any such
Person provided that, once a Person is designated a Group C Holder, such Group C
Holder and each of its Affiliates shall, as long as it owns any Shares, at all
times be a Group C Holder and shall not be a Group A Holder or Group B Holder
even if such Group C Holder or its Affiliates acquire Shares from a Group A
Holder or from a Group B Holder.
"Initial Parties" means those parties, other than the Corporation, listed
on the signature pages hereto.
"Management Group" means Xxxxx X. Xxxxxx and Xxxxx Xxxxxxxxx and any other
key employees of the Corporation approved as members of the Management Group by
the Compensation Committee of the Board.
"PGS" means Petroleum Geo Services ASA, a Norwegian joint stock company.
"Party" means each Initial Party, but shall not mean (i) the Corporation or
(ii) any Person who executes this Agreement or a separate agreement to be bound
by the terms hereof solely in his or her capacity as a spouse of a Party;
provided, however, that if any Party ceases to own any Common Stock or Preferred
Stock, then such Party shall cease to be a Party hereunder and shall not
thereafter be subject to this Agreement even if such former Party thereafter
acquires Common Stock or Preferred Stock.
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"Person" means any natural person, corporation, limited partnership,
general partnership, joint stock company, joint venture, association, company,
trust, bank trust company, land trust, business trust, or other organization,
whether or not a legal entity, and any government or agency or political
subdivision thereof.
"Piggyback Registration" has the meaning set forth in Section 3(b) of
Exhibit A.
"Preferred Stock" means shares of the Series A Convertible Preferred Stock,
par value $.01 per share, of the Corporation.
"Qualified Public Offering" means the first closing of one or more
underwritten public offerings pursuant to effective registration statements
under the Securities Act, covering the offer and sale of common stock for the
account of the Corporation to the public generally, for which the aggregate net
proceeds to the Corporation are not less than Twenty Million Dollars
($20,000,000), and pursuant to which such shares of common stock are authorized
and approved for listing on a national securities exchange or admitted to
trading and quoted in the Nasdaq National Market or comparable system.
"Required Holders" means (i) Group A Holders who collectively own at least
a majority of the Fully-Diluted Common Stock then owned by all Group A Holders
and (ii) Group B Holders who collectively own at least a majority of the Fully-
Diluted Common Stock then owned by all Group B Holders.
"SEC" means the Securities and Exchange Commission or any successor
governmental agency.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"XXXX" means Seismic Energy Holdings, Inc., a Delaware corporation and an
indirect wholly-owned subsidiary of PGS.
"Shares" means the Common Stock and Preferred Stock, collectively, and any
"Share" shall refer to any one of the foregoing.
"Spinnaker LLC" means Spinnaker Exploration Company, L.L.C., a Delaware
limited liability company.
"Stock Option Plan" means the Spinnaker Exploration Company Amended and
Restated 1998 Stock Option Plan.
"Stockholder" means each Party.
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"Subsidiary" means (i) any corporation or other entity a majority of the
Capital Stock of which having ordinary voting power to elect a majority of the
Board or other Persons performing similar functions is at the time owned,
directly or indirectly, with power to vote, by the Corporation or any direct or
indirect Subsidiary of the Corporation (ii) a partnership in which the
Corporation or any direct or indirect Subsidiary is a general partner, and
includes in any event, WPV Sub and Spinnaker LLC.
"Transfer," including the correlative terms "Transferring" or
"Transferred", means any direct or indirect, transfer, assignment, sale, gift,
pledge, hypothecation or other encumbrance, or any other disposition (whether
voluntary or involuntary or by operation of law), of Common Stock (or any
interest (pecuniary or otherwise) therein or right thereto) or Preferred Stock,
including without limitation derivative or similar transactions or arrangements
whereby a portion or all of the economic interest in, or risk of loss or
opportunity for gain with respect to, Common Stock or Preferred Stock is
transferred or shifted to another Person; provided, however, that (i) an
exchange, merger, recapitalization, consolidation or reorganization involving
the Corporation in which securities of the Corporation or any other Person are
issued in respect of shares of the common stock of the Corporation if all shares
of Common Stock are treated identically in such transaction, (ii) a conversion
of outstanding shares of Preferred Stock into shares of Common Stock, in
accordance with the terms thereof and (iii) the exercise of options in
accordance with the terms of the Corporation's Stock Option Plan, shall not be
deemed a Transfer.
"WPV" means Warburg, Xxxxxx Ventures, L.P.
"WPV Sub" means WP Spinnaker Holdings, Inc., a Delaware corporation.
ARTICLE II
TRANSFER OF SECURITIES
2.1 TRANSFERS SUBJECT TO COMPLAINCE WITH SECURITIES ACT. No Common Stock
acquired on or prior to the date hereof may be Transferred by a Party (other
than pursuant to an effective registration statement under the Securities Act)
unless such Party first delivers to the Corporation an opinion of counsel, which
opinion counsel shall be reasonably satisfactory to the Corporation, to the
effect that such Transfer is not required to be registered under the Securities
Act.
ARTICLE III
REGISTRATION OF STOCK
3.1 REGISTRATION RIGHTS. The Corporation hereby grants to each Party the
applicable registration rights with respect to Common Stock set forth in Exhibit
A hereto (and such Exhibit A is incorporated herein by reference); provided
however, that certain Piggyback Registration rights
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are waived in accordance with Section 3.2 hereof in connection with the initial
Qualified Public Offering of the Company.
3.2 WAIVER OF PIGGYBACK REGISTRATION RIGHTS IN CONNECTION WITH IPO. The
Piggyback Registration rights granted to each Stockholder pursuant to
Section 3 of the registration rights in Exhibit A are hereby waived in
connection with the initial Qualified Public Offering of the Corporation, and no
Stockholder shall have any such Piggyback Registration rights in connection with
such initial Qualified Public Offering. Such Piggyback Registration rights
shall apply to any subsequent Qualified Public Offering.
ARTICLE IV
TERMINATION
4.1 TERMINATION. The provisions of this Agreement shall terminate in
respect of all Parties upon (i) the written consent of the Required Holders or
(ii) upon the dissolution, liquidation, or winding-up of the Corporation.
ARTICLE V
MISCELLANEOUS
5.1 AMENDMENT. This Agreement may only be altered, supplemented, amended
or waived by the written consent of the Required Holders: provided, however,
that in no event shall any amendment impose any additional material obligation
on any Party without such Party's written consent; provided further, however,
(i) any Party may (without the consent of any other Person) waive, in writing,
any obligation owed to it hereunder by any other Party or the Corporation, and
(ii) any Party may (without the consent of any other Person) waive, in writing,
any right it has hereunder.
5.2 SPECIFIC PERFORMANCE. The Parties and the Corporation recognize that
the obligations imposed on them in this Agreement are special, unique, and of
extraordinary character, and that in the event of breach by any party, damages
will be an insufficient remedy; consequently, it is agreed that the Parties and
the Corporation may have specific performance and injunctive relief (in addition
to damages) as a remedy for the enforcement hereof, without proving damages.
5.3 ASSIGNMENT. Except as otherwise expressly provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the Parties and the Corporation.
No such assignment shall relieve the assignor from any liability hereunder.
Any purported assignment made in violation of this Section 5.3 shall be void and
of no force and effect.
5.4 NOTICES. Any and all notices, designations, consents, offers,
acceptances, or other communications provided for herein (each a "Notice") shall
be given in writing by overnight courier,
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telegram, or telecopy which shall be addressed, or sent, to the respective
addresses as follows (or such other address as the Corporation or any Party may
specify to the Corporation and all other Parties by Notice):
The Corporation: Spinnaker Exploration Company
0000 Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
with a copy to:
Xxxxxx & Xxxxxx, LLP
0000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Each Party: To such address or telecopy number of such Party as such
Party provides by notice to the Corporation and all other
Parties or, if such address is not so provided, to such
Party's address as is reflected on the stock transfer
records of the Corporation at such time.
All notices shall be deemed effective and received (a) if given by telecopy,
when such telecopy is transmitted to the telecopy number specified above and
receipt therof is confirmed; (b) if given by overnight courier, on the Business
Day immediately following the day on which such notice is delivered to a
reputable overnight courier service; or (c) if given by telegram, when such
notice is delivered at the address specified above. In order to effectuate the
purposes of this Agreement, the Corporation agrees that (i) it will maintain a
record of the names and addresses of the Parties and the number of shares of
Common Stock and Preferred Stock owned by the Parties and by Group A Holders,
Group B Holders and Group C Holders, (ii) at the request of any party, it will
provide such Party with a copy of the record, (iii) it will promptly notify the
Parties in the event the Corporation receives notice that any shares of Common
Stock or Preferred Stock have been (or have purported to be) Transferred by or
to any Party (including the name of the transferor and transferee or purported
transferor or transferee and the number of shares transferred or purported to be
transferred) and (iv) it will not register, in the name of any Person, any
shares subject to this Agreement unless the transferor and transferee have
complied with the terms of this Agreement.
5.5 COUNTERPARTS. This Agreement may be executed in one or more
counterparts and each counterpart shall be deemed to be an original and which
counterparts together shall constitute one and the same agreement of the parties
hereto. This Agreement shall be effective as provided in Section 5.13 upon
execution by the Required Holders even if all the Initial Parties have not
executed counterparts.
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5.6 SECTION HEADING. Headings contained in this Agreement are inserted
only as a matter of convenience and in no way define, limit, or extend the scope
or intent of this Agreement or any provisions hereof.
5.7 CHOICE OF LAW. This Agreement shall be governed by the internal laws
of the State of Delaware without regard to the principles of conflicts of laws
thereof.
5.8 ENTIRE AGREEMENT. This Agreement, and the agreements referred to
herein, contain the entire understanding of the parties hereto respecting the
subject matter hereof and supersedes all prior agreements, discussions and
understandings with respect thereto.
5.9 CUMULATIVE RIGHTS. The rights of the Parties and the Corporation
under this Agreement are cumulative and in addition to all similar and other
rights of the parties under other agreements.
5.10 SEVERABILITY. If any term, provision, covenant, or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
void, or unenforceable, the remainder of the terms, provisions, covenants, and
restrictions of this Agreement shall remain in full force and effect an shall in
no way be effected, impaired, or invalidated.
5.11 BINDING EFFECT. Subject to the restrictions on Transfers set forth in
this Agreement, this Agreement is binding on and inures to the benefit of the
Parties and their respective heirs, legal representatives, successors, and
assigns.
5.12 FURTHER ASSURANCES. In connection with this Agreement and the
transactions comtemplated hereby, each Party shall execute and deliver any
additional documents and instruments and perform any additional acts that may be
necessary or appropriate to effectuate and perform the provisions of this
Agreement and those transactions.
5.13 EFFECTIVENESS. This Agreement shall become effective upon the
consummation of a Qualified Public Offering.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
SPINNAKER EXPLORATION COMPANY
/s/ XXXXX X. XXXXXX
By:________________________________
Xxxxx X. Xxxxxx
President
WARBURG, XXXXXX VENTURES, L.P.
By: Warburg Pincus & Co., Inc., its
general partner
/s/ XXXXXXX X. XXXXXX
By:________________________________
Xxxxxxx X. Xxxxxx
Managing Director
SEISMIC ENERGY HOLDINGS, INC.
/s/ XXXX X. XXXX
By:________________________________
Xxxx X. Xxxx
Title: VP, Finance
/s/ XXXXX X. XXXXXX
-----------------------------------
Xxxxx X. Xxxxxx
/s/ XXXXX X. XXXXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxxxx
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EXHIBIT A
TO
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
(THE "AGREEMENT")
DATED AS OF SEPTEMBER 27, 1999
BY AND AMONG
SPINNAKER EXPLORATION CORP.
AND
THE OTHER PARTIES THERETO
REGISTRATION RIGHTS
Except as otherwise set forth below, terms defined in the Agreement
are used herein as therein defined.
1. Definitions.
"Demand Holder" means any Group A Demand Holder or Group B Demand Holder.
"Demand Registration" has the meaning set forth in Section 2(a) below.
"Demand Request" has the meaning set forth in Section 2(a) below.
"Demand Shelf Registration" has the meaning set forth in Section 2(a)
below.
"Group A Demand Holder" means a Group A Holder or group of Group A Holders
that own a majority of the Fully-Diluted Common Stock owned by all Group A
Holders, based solely on Registrable Securities owned by all Group A Holders.
"Group B Demand Holder" means a Group B Holder or group of Group B Holders
that own a majority of the Fully-Diluted Common Stock owned by all Group B
Holders, based solely on Registrable Securities owned by all Group B Holders.
"Holder" means a Group A Holder, a Group B Holder or a Group C Holder who
holds Registrable Securities; provided, however, that a Person shall cease to be
a Holder if and when such Person owns Common Stock and Common Stock Equivalents
representing less than one percent of the Fully-Diluted Common Stock and an
opinion of counsel, reasonably satisfactory to the Corporation and such Person,
shall have been delivered to the Corporation and such Person to the effect that
such Person may dispose of all Registrable Securities then owned by such Person
pursuant to Rule 144(k) (or any successor rule) under the Securities Act, and in
such case the Registrable Securities owned by such Person shall cease to be
Registrable Securities.
"Indemnified Party" has the meaning set forth in Section 7(c) below.
EXHIBIT A
REGISTRATION RIGHTS
PAGE 1
"Indemnifying Party" has the meaning set forth in Section 7(c) below.
"Initial Public Offering" means a consummated public offering of Common
Stock which is underwritten on a firm commitment basis by one or more
Underwriters.
"Inspectors" has the meaning set forth in Section 5(j) below.
"Material Adverse Effect" has the meaning set forth in Section 2(d) below.
"Records" has the meaning set forth in Section 5(j) below.
"Registrable Securities" means all shares of Common Stock of the
Corporation and any other securities issued or issuable with respect to such
securities by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or
reorganization; provided that any Registrable Security will cease to be a
Registrable Security when (a) a registration statement covering such Registrable
Security has been declared effective by the SEC and they have been disposed of
pursuant to such effective registration statement, (b) it is sold under
circumstances in which all of the applicable conditions of Rule 144 (or any
similar provisions then in force) under the Securities Act are met, (c) (i) it
has been otherwise transferred and (ii) it may be resold without subsequent
registration under the Securities Act, or (d) it has ceased to be a Registrable
Security in accordance with the proviso to the definition of Holder provided for
herein.
"Registration Expenses" has the meaning set forth in Section 6 below.
"Requesting Holders" means the Group A Demand Holder or the Group B Demand
Holder, as applicable.
"Selling Holder" means a Holder who is selling Registrable Securities
pursuant to a registration statement under the Securities Act.
"Underwriter" means a securities dealers which purchases any Registrable
Securities as principal and not as part of such dealer's market-making
activities.
2. Demand Registration.
a. Request for Registration.
i. From and after the expiration of the lock-up period agreed to by
the Corporation in connection with the consummation of an Initial
Public Offering or the first date that the Common Stock shall be
registered under the Exchange Act if there is no such lock-up
period in connection with an Initial Public Offering, any Demand
Holder may make a written request of the Corporation (a "Demand
Request") for (A) registration under the Securities Act (a "Demand
Registration") of the sale of all or part of its Registrable
Securities; provided that the Registrable Securities proposed to be
sold by the Requesting Holders must have an estimated aggregate
gross
EXHIBIT A
REGISTRATION RIGHTS
PAGE 2
offering price of at least $20,000,000 and (B) registration under
the Securities Act covering the resale (including a distribution by
WPV to its partners) of all or part of its Registrable Securities
pursuant to a continuous or "shelf" registration statement (a
"Demand Shelf Registration").
ii. Each Demand Request shall specify the type and number of shares of
Registrable Securities proposed to be sold. Subject to Section
4(c), the Corporation shall file the Demand Registration or Demand
Shelf Registration, as requested, as soon as reasonably practicable
but in any event within 60 days after receiving a Demand Request
(the "Required Filing Date") and shall use all commercially
reasonable efforts to cause the same to be declared effective by
the SEC as promptly as practicable after such filing. Subject to
Section 2(b), if the Corporation has effected two Demand
Registrations and one Demand Shelf Registration in response to the
request of a Group A Demand Holder, then the Corporation shall not
be obligated to respond to further Demand Registrations in respect
of Group A Holders pursuant to this Section unless the Corporation
is then eligible to register such sale on Form S-3 (or a successor
form). Subject to Section 2(b), if the Corporation has effected two
Demand Registrations and one Demand Shelf Registration in response
to the request of a Group B Demand Holder, then the Corporation
shall not be obligated to respond to further Demand Registrations
in respect of Group B Holders pursuant to this Section unless the
Corporation is then eligible to register such sale on Form S-3 (or
a successor form). The Corporation shall not be obligated to effect
more than one Demand Registration in any six month period.
b. Effective Registration and Expenses. A registration will not count as a
Demand Registration or a Demand Shelf Registration until it has become
effective unless (i) prior to such effective time the Requesting Holders
withdraw all their Registrable Securities for any reason other than (A)
the inability or unreasonable delay of the Corporation in having such
registration statement become effective or (B) the disclosure of
material adverse information regarding the Corporation that was not
known by such Requesting Holders at the time the request for such Demand
Registration or Demand Shelf Registration was made and (ii) the
Requesting Holders elect not to pay all the Corporation's out-of-pocket
Registration Expenses in connection with such withdrawn registration.
If, after such registration has become effective but prior to the sale
of all Registrable Securities covered thereby, an offering of
Registrable Securities pursuant to a registration is interfered with by
any stop order, injunction or other order or requirement of the SEC or
other governmental agency or court, such registration will not count as
a Demand Registration or Demand Shelf Registration. Notwithstanding the
foregoing if Registrable Securities requested to be registered by a
Group A Demand Holder or Group B Demand Holder, as the case may be, are
excluded from such Demand Registration as a result of the application of
Section 2(d) below, the Group A Holders or Group B Holders, as the
EXHIBIT A
REGISTRATION RIGHTS
PAGE 3
case may be, shall have the right to one additiona Demand Registration
with respect to their Registrable Securities.
c. Selection of Underwriters. The offering of Registrable Securities
pursuant to a Demand Registration may be in the form of a "firm
commitment" underwritten offering. If the Requesting Holder so
indicates, the Requesting Holder shall select the book-running managing
Underwriter and such additional Underwriters to be used in connection
with the offering; provided that such selections shall be subject to the
consent of the Corporation, which consent shall not be unreasonably
withheld.
d. Priority on Demand Registrations. No securities to be sold for the
account of any Person (including the Corporation) other than Group A
Holders or Group B Holders shall be included in a Demand Registration if
the managing Underwriter or Underwriters shall advise the Requesting
Holder that, in its or their judgment, the inclusion of such securities
may adversely affect the price or success of the offering in any
significant or material respect (a "Material Adverse Effect").
Furthermore, in the event the managing Underwriter or Underwriters shall
advise the Requesting Holder that even after exclusion of all securities
of other Persons pursuant to the immediately preceding sentence, the
amount of Registrable Securities proposed to be included in such Demand
Registration by Group A Holders and Group B Holders electing to
participate is sufficiently large to cause a Material Adverse Effect,
the Registrable Securities of such Holders to be included in such Demand
Registration shall be allocated pro rata among such Holders on the basis
of the number of shares of Fully-Diluted Common Stock requested to be
included in such registration by each such Requesting Holder; provided,
however, if at the time of such allocation the market price of Common
Stock is less than the then conversion price of the Preferred Stock,
then for purposes of such allocation the conversion price of the
Preferred Stock shall be assumed to be the then market price of the
Common Stock.
3. Piggy-Back Registration.
a. Subject to the provisions of the Agreement, if the Corporation proposes
to file a registration statement under the Securities Act, including a
Demand Registration or a Demand Shelf Registration, with respect to an
offering of any equity securities by the Corporation for its own account
or for the account of any of its equity holders (other than a
registration statement on Form S-4 or S-8 or any substitute form that
may be adopted by the SEC or any registration statement filed in
connection with an exchange offer or offering of securities solely to
the Corporation's existing security holders), then the Corporation shall
give written notice of such proposed filing to the Holders of the
Registrable Securities as soon as practicable (but in no event less than
10 days before the anticipated initial filing date of such registration
statement), and such notice shall offer the Holders the opportunity to
register such number of Registrable Securities as each Holder may
request (a "Piggyback Registration"). Subject to Section 3(b) hereof,
the Corporation shall include in each such Piggyback Registration all
Registrable Securities requested to be included in the registration for
EXHIBIT A
REGISTRATION RIGHTS
PAGE 4
such offering; provided, however, that the Corporation may at any time
withdraw or cease proceeding with such registration. Each Holder of
Registrable Securities shall be permitted to withdraw all or part of
such Holder's Registrable Securities from a Piggyback Registration at
any time prior to the effective date thereof.
b. The Corporation shall use all commercially reasonable efforts to cause
the managing Underwriter or Underwriters of a proposed underwritten
offering to permit the Registrable Securities requested to be included
in the registration statement for such offering under Section 3(a) or
pursuant to other piggyback registration rights granted by the
Corporation not in contravention of Section 9 hereof and that are on a
parity with the registration rights granted hereunder ("Piggyback
Securities"), to be included on the same terms and conditions as any
similar securities included therein. Notwithstanding the foregoing, the
Corporation shall not be required to include any holder's Piggyback
Securities in such offering unless such holder accepts the terms of the
underwriting agreement between the Corporation and the managing
Underwriter or Underwriters and otherwise complies with the provisions
of Section 8 below. If such offering is a Demand Registration pursuant
to Section 2(a), then the provisions of Section 2(d) shall apply with
respect to any reduction in the amount of securities being registered.
In all other offerings that are underwritten, if the managing
Underwriter or Underwriters of such proposed underwritten offering
advise the Corporation in writing that in their opinion the total amount
of securities, including Piggyback Securities, to be included in such
offering is sufficiently large to cause a Material Adverse Effect, then
in such event the securities to be included in such offering shall be
allocated first to the Corporation, and then, to the extent that any
additional securities can, in the opinion of such managing Underwriter
or Underwriters, be sold without any such Material Adverse Effect, pro
rata among the holders of Piggyback Securities on the basis of the
number of shares of Fully-Diluted Common Stock requested to be included
in such registration by each such holder; provided, however, if at the
time of such allocation the market price of Common Stock is less than
the then conversion price of the Preferred Stock, then for purposes of
such allocation the conversion price of the Preferred Stock shall be
assumed to be the then market price of the Common Stock.
4. Holdback Agreements.
a. Restrictions on Public Sale by Holder of Registrable Securities. Each
Holder of Registrable Securities (whether or not such Registrable
Securities are included in a registration statement pursuant hereto)
agrees not to effect any public sale or distribution of the issue being
registered or of any securities convertible into or exchangeable or
exercisable for such securities, including a sale pursuant to Rule 144
under the Securities Act, during the 14 days prior to, and during the
180 day period beginning on the effective date of a registration
statement filed pursuant hereto except as part of such registration if
and to the extent requested by the Corporation in the case of
a non-underwritten public offering or if and to the extent requested by
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the managing Underwriter or Underwriters in the case of an underwritten
public offering.
b. Restrictions on Public Sale by the Corporation and Others. The
Corporation agrees (i) not to effect any public sale or distribution of
any securities similar to those being registered, or any securities
convertible into or exchangeable or exercisable for such securities,
during the 14 days prior to, and during a period of up to 180 days if
requested by the managing underwriters, beginning on the effective date
of any registration statement which includes Registrable Securities
(unless such sale or distribution is pursuant to such registration
statement) and (ii) that any agreement entered into after the date of
the Agreement pursuant to which the Corporation issues or agrees to
issue any privately placed securities shall contain a provision under
which holders of such securities agree not to effect any public sale or
distribution of any such securities during the period described in (i)
above, including a sale pursuant to Rule 144 under the Securities Act
(except as part of any such registration, if permitted); provided,
however, that the provisions of this paragraph (b) shall not prevent the
conversion or exchange of any securities pursuant to their terms into or
for other securities.
c. Deferral of Filing. The Corporation may defer the filing (but not the
preparation) of a registration statement required by Section 2 until a
date not later than 45 days after the Required Filing Date if (i) at the
time the Corporation receives the Demand Request, the Corporation or 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 Corporation determines in good faith that such disclosure would be
materially detrimental to the Corporation and its stockholders, or (ii)
prior to receiving the Demand Request, the Board of Directors had
determined to effect a registered underwritten public offering of the
Corporation's equity securities for the Corporation's account and the
Corporation had taken substantial steps (including, but not limited to,
selecting the 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 4(c) shall
be lifted, and the requested registration statement shall be filed
forthwith, if, in the case of a deferral pursuant to clause (i) of the
preceding sentence, the negotiations or other activities are disclosed
or terminated, or, in the case of a deferral pursuant to clause (ii) of
the preceding sentence, the proposed registration for the Corporation's
account is abandoned. In order to defer the filing of a registration
statement pursuant to this Section 4(c), the Corporation shall promptly,
upon determining to seek such deferral, notify each Requesting Holder
that the Corporation is deferring such filing pursuant to this Section
4(c). Within twenty days after receiving such notice, the Requesting
Holder may withdraw such request by giving notice to the Corporation; if
withdrawn, the Demand Request shall be deemed not to have been made for
all purposes of this Agreement. The Corporation
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may defer the filing of a particular registration statement pursuant to
this Section 4(c) no more than twice during any twelve month period.
5. Registration Procedures. Whenever the Holders have requested that any
Registrable Securities be registered pursuant to Section 2 hereof, the
Corporation will, at its expense, use all commercially reasonable efforts
to effect the registration and the sale of such Registrable Securities
under the Securities Act in accordance with the intended method of
disposition thereof as quickly as practicable, and in connection with any
such request, the Corporation will as expeditiously as practicable:
a. prepare and file with the SEC a registration statement on any form for
which the Corporation then qualifies or which counsel for the
Corporation shall deem appropriate and which form shall be available for
the sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and use all
commercially reasonable efforts and proceed diligently and in good faith
to cause such filed registration statement to become effective under the
Securities Act; provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Corporation
will furnish to all Selling Holders and to one counsel reasonably
acceptable to the Corporation selected by the Selling Holders, copies of
all such documents proposed to be filed, which documents will be subject
to the review of such counsel; provided that in connection with a Demand
Registration or a Demand Shelf Registration, the Corporation shall not
file any registration statement or prospectus, or any amendments or
supplements thereto, if the Requesting Holder, its counsel, or the
managing Underwriters shall reasonably object, in writing, on a timely
basis.
b. 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
pursuant to Section 2 for a period (except as provided in the last
paragraph of this Section 5) of not less than 270 consecutive days in
the case of a Demand Registration, or three years or such shorter period
of time that Holders must hold any Registrable Securities before they
are eligible to dispose of them pursuant to the provisions of Rule
144(k) promulgated under the Securities Act in the case of a Demand
Shelf Registration, or, if shorter, the period terminating when all
Registrable Securities covered by such registration statement have been
sold (but not before the expiration of the applicable period referred to
in Section 4(3) of the Securities Act and Rule 174 thereunder, if
applicable) 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 Selling Holders thereof set forth
in such registration statement;
c. furnish to each such Selling Holder such number of copies of such
registration statement, each amendment and supplement thereto (including
access for review of all exhibits thereto), the prospectus included in
such registration statement (including
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each preliminary prospectus) and such other documents as such Selling
Holder may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such Selling Holder;
d. notify the Selling Holders promptly, 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 under the Securities Act,
(ii) of any request by the SEC or any other federal governmental
authority for amendments or supplements to a registration statement or
related prospectus or for additional information, (iii) of the issuance
by the SEC of any stop order suspending the effectiveness of a
registration statement or the initiation of any proceedings for that
purpose, (iv) if at any time the representations or warranties of the
Corporation or any Subsidiary contained in any agreement (including any
underwriting agreement) contemplated by Section 5(i) below cease to be
true and correct in any material respect, (v) of the receipt by the
Corporation of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, (vi) of the happening of any event
which makes any statement made in such registration statement or related
prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires the
making of any changes in such registration statement, prospectus or
documents so that, in the case of the registration statement, 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 not misleading, and that in the case of the
prospectus, 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 light of the circumstances
under which they were made, not misleading and (vii) of the
Corporation's reasonable determination that a post-effective amendment
to a registration statement would be appropriate;
e. use all commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a registration statement, or the
lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment;
f. cooperate with the Selling Holders and the managing Underwriter or
Underwriters to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a
form eligible for deposit with The Depositary Trust Corporation; and
enable such Registrable Securities to be registered in such names as the
managing Underwriter or Underwriters may request prior to any sale of
Registrable Securities;
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g. use all commercially reasonable efforts to register or qualify such
Registrable Securities as promptly as practicable under such other
securities or blue sky laws of such United States jurisdictions as any
Selling Holder or managing Underwriter reasonably (in light of the
intended plan of distribution) requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such
Selling Holder or managing Underwriter to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such Selling
Holder; provided that the Corporation 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 paragraph (g), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction;
h. cooperate and assist in any filing required to be made with the National
Association of Securities Dealers, Inc. and in the performance of any
due diligence investigation by any underwriter, including any "qualified
independent underwriter":
i. enter into customary agreements (including an underwriting agreement in
customary form) and take such other actions as are reasonably required
in order to expedite or facilitate the disposition of such Registrable
Securities;
j. make available for inspection by any Selling Holder of such Registrable
Securities, any Underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or other
professional retained by any such Selling Holder or Underwriter
(collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Corporation
(collectively, the "Records") as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause the
Corporation's officers, directors and employees to supply all
information reasonably requested by any such Inspectors in connection
with such registration statement. As a condition to providing any such
information, each Selling Holder of such Registrable Securities and each
such Inspector shall agree that information obtained by it as a result
of such inspections shall be deemed confidential and shall not be used
by it as the basis for any market transactions in the securities of the
Corporation or its Affiliates unless and until such information is made
generally available to the public.
k. use all commercially reasonable efforts to obtain a comfort letter or
comfort letters from the Corporation's independent public accountants in
customary form and covering such matters of the type customarily covered
by comfort letters as the Selling Holders of a majority of the shares of
Registrable Securities being sold or the managing Underwriter or
Underwriters reasonably requests;
l. otherwise use all commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering a period of twelve months, beginning within three
months after the effective date of the registration statement,
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which earnings statement shall satisfy the provisions of Section 11(a)
of the Securities Act;
m. use all commercially reasonable efforts to cause all such Registrable
Securities to be listed on each securities exchange on which similar
securities issued by the Corporation are then listed or quoted on any
inter-dealer quotation system on which similar securities issued by the
Corporation are then quoted; and
n. if any event contemplated by Section 5(d)(vi) above shall occur, as
promptly as practicable prepare a supplement or amendment or post-
effective amendment to such registration statement or the related
prospectus or any document incorporated therein by reference or promptly
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, the prospectus will not
contain an 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 light of the circumstances under which they were
made, not misleading.
The Corporation may require each Selling Holder to promptly furnish in
writing to the Corporation such information regarding the distribution of
the Registrable Securities as it may from time to time reasonably request
and such other information as may be legally required in connection with
such registration. Notwithstanding anything herein to the contrary, the
Corporation shall have the right to exclude from any offering the
Registrable Securities of any Selling Holder who does not comply with the
provisions of the immediately preceding sentence.
Each Selling Holder agrees that, upon receipt of any notice from the
Corporation of the happening of any event of the kind described in Section
5(d)(vi) hereof, such Selling Holder will forthwith discontinue disposition
of Registrable Securities pursuant to the registration statement covering
such Registrable Securities until such Selling Holder's receipt of the
copies of the supplemented or amended prospectus contemplated by Section
(n) hereof, and, if so directed by the Corporation, such Selling Holder
will deliver to the Corporation all copies, other than permanent file
copies, then in such Selling Holder's possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of
such notice. In the event the Corporation shall give such notice, the
Corporation shall extend the period during which such registration
statement shall be maintained effective (including the period referred to
in Section 5(b) hereof) by the number of days during the period from and
including the date of the giving of notice pursuant to Section 5(d)(vi)
hereof to the date when the Corporation shall make available to the Selling
Holders of Registrable Securities covered by such registration statement a
prospectus supplemented or amended to conform with the requirements of
Section 5(n) hereof.
6. Registration Expenses. Subject to the provisions in Section 2(b), the
Corporation (i) shall pay all Registration Expenses (as defined below) with
respect to the first two Demand Registrations for Group A Holders and will
pay the Registration Expenses with respect to a third Demand Registration
for the Group A Holders if such registration is made on
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Form S-3 (or any successor form) and (ii) shall pay all Registration
Expenses with respect to the first two Demand Registrations for Group B
Holders and will pay the Registration Expenses with respect to a third
Demand Registration for the Group B Holders if such registration is made on
Form S-3 (or any successor form). With respect to any Demand Shelf
Registration and all Demand Registrations not subject to the immediately
preceding sentence, the Holders participating on such registration shall
pay the Registration Expenses, other than those expenses referred to in
clause (d) of the definition of Registration Expenses, on a pro rata basis.
The Corporation shall pay all Registration Expenses in connection with any
Piggyback Registration. "Registration Expenses" shall mean: (a) all
registration and filing fees (including, without limitation, with respect
to filings to be made with the National Association of Securities Dealers,
Inc.), (b) 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 Securities), (c) printing
expenses, (d) internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), (e) the fees and expenses incurred in connection with
the listing of the Registrable Securities on an exchange or the quotation
of the Registrable Securities on an inter-dealer quotation system, (f)
reasonable fees and disbursements of counsel for the Corporation and
customary fees and expenses for independent certified public accountants
retained by the Corporation (including the expenses of any comfort letters
requested pursuant to Section 5(k) hereof), and (g) the reasonable fees and
expenses of any special experts retained by the Corporation in connection
with such registration. The Corporation shall not have any obligation to
pay any underwriting fees, discounts, or commissions attributable to the
sale of Registrable Securities or, except as provided by clause (b) above,
any out-of-pocket expenses of the Holders (or the agents who manage their
accounts) or the fees and disbursements of counsel for any Underwriter.
7. Indemnification; Contribution.
a. Indemnification by the Corporation. The Corporation agrees to indemnify
and hold harmless each Selling Holder, each Person, if any, who controls
such Selling Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, and the officers, directors,
agents, general and limited partners, and employees of each Selling
Holder and each such controlling person from and against any and all
losses, claims, damages, liabilities, and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in
any registration statement or prospectus relating to the Registrable
Securities or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, labilities or expenses
arise out of, or are based upon, any such untrue statement or omission
or allegation thereof based upon information furnished in writing to the
Corporation by such Selling Holder or on such Selling Holder's behalf
expressly for use therein. The Corporation also agrees to indemnify any
Underwriters of the Registrable Securities, their officers and directors
and
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each Person who controls such Underwriters on substantially the same
basis as that of the indemnification of the Selling Holders provided in
this Section 7(a).
b. Indemnification by Holder of Registrable Securities. Each Selling
Holder, severally and not jointly, agrees to indemnify and hold harmless
the Corporation, and each Person, if any, who controls the Corporation
within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act and the officers, directors, agents and employees
of the Corporation and each such controlling Person to the same extent
as the foregoing indemnity from the Corporation to such Selling Holder,
but only with respect to information furnished in writing by such
Selling Holder or on such Selling Holder's behalf expressly for use in
any registration statement or prospectus relating to the Registrable
Securities. The liability of any Selling Holder under this Section 7(b)
shall be limited to the aggregate cash and property received by such
Selling Holder pursuant to the sale of Registrable Securities covered by
such registration statement or prospectus.
c. Conduct of Indemnification Proceedings. If any action or proceeding
(including any governmental investigation) shall be brought or asserted
against any Person entitled to indemnification under Section 7(a) or
7(b) above (an "Indemnified Party") in respect of which indemnity may be
sought from any party who has agreed to provide such indemnification
under Section 7(a) or 7(b) above (an "Indemnifying Party"), the
Indemnified Party shall give prompt notice to the Indemnifying Party and
the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such Indemnified Party,
and shall assume the payment of all reasonable expenses of such defense.
Such Indemnified Party shall have the right to employ separate counsel
in any such action or 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 unless (i) the Indemnifying Party has
agreed to pay such fees and expenses or (ii) the Indemnifying Party
fails promptly to assume the defense of such action or proceeding or
fails to employ counsel reasonably satisfactory to such Indemnified
Party or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both such Indemnified Party
and Indemnifying Party (or an Affiliate of the Indemnifying Party), and
such Indemnified Party shall have been advised by counsel that there is
a conflict of interest on the part of counsel employed by the
Indemnifying Party to represent such Indemnified 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 of such action or proceeding on behalf of such
Indemnified Party). Notwithstanding the foregoing, the Indemnifying
Party shall not, in connection with any one such action or proceeding or
separate but substantially similar related actions or proceedings in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable at any time for the fees and expenses of more
than one separate firm of attorneys (together in each case with
appropriate local counsel). The Indemnifying Party shall not be liable
for any settlement of any such action or
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proceeding effected without its written consent (which consent will not
be unreasonably withheld), but if settled with its written consent, or
if there be a final judgment for the plaintiff in any such action of
proceeding, the Indemnifying Party shall indemnify and hold harmless
such Indemnified Party from and against any loss or liability (to the
extent stated above) by reason of such settlement or judgment. The
Indemnifying Party shall not consent to entry of any judgment or enter
into any settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified
Party of a release, in form and substance reasonably satisfactory to the
Indemnified Party, from all liability in respect of such action or
proceeding for which such Indemnified Party would be entitled to
indemnification hereunder.
d. Contribution. If the indemnification provided for in this Section 7 is
unavailable to the Indemnified Parties in respect of any losses, claims,
damages, liabilities or judgments referred to herein, then each such
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, claims, damages, liabilities and judgments
as between the Corporation on the one hand and each Selling Holder on
the other, in such proportion as is appropriate to reflect the relative
fault of the Corporation and of each Selling Holder in connection with
the statements or omissions which resulted in such losses, claims,
damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Corporation on the
one hand and of each Selling Holder on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by such party, and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Corporation and the Selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined
by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in the
first two sentences of this Section 7(d). The amount paid or payable by
an Indemnified Party as a result of the losses, claims, damages,
liabilities or judgments referred to in Sections 7(a) and (b) hereof
shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7(d), no Selling
Holder shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities of
such Selling Holder were offered to the public exceeds the amount of any
damages which such Selling Holder 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 Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
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8. Participation in Underwritten Registrations. No Holder may participate in
any underwritten registration hereunder unless such Holder (a) agrees to
sell such Holder's Registrable Securities on the basis provided in any
underwriting arrangements approved by the Person entitled hereunder to
approve such arrangements, and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such
underwriting arrangements and this Agreement.
9. Future Registration Rights. After the date of this Agreement, the
Corporation will not grant to any Person (including the Holders of
Registrable Securities) any registration rights ("new rights") with respect
to any securities of the Corporation without the written consent of the
Holders of a majority of the then outstanding Registrable Securities
(calculated on a Fully-Diluted Common Stock basis) unless such new rights
(i) are subordinate to and of a lesser priority than the registration
rights granted by the Corporation under this Agreement and (ii) are not
inconsistent with the terms of this Agreement. Additionally, unless
otherwise consented to in writing by the Holders of a majority of the then
outstanding Registrable Securities (calculated on a Fully-Diluted Common
Stock basis), new rights may not be granted without expressly providing
that, with respect to demand registration rights granted to such other
Persons, the Holders of Registrable Securities have a piggyback right upon
the exercise of such new rights and shall be included in any related
registration statement on the same terms and conditions as the holders of
the new rights, subject to possible reduction at the initiative of the
managing underwriter or underwriters, on terms substantially equivalent to
those set forth in the last sentence of Section 3(b).
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