EXHIBIT 10.18
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FORM OF
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REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of
________________, by and among Xxx-Xxxx Corporation, a Delaware corporation (the
"Company"), and each of Xxxxxx X. Xxxxxxx, Gelco Corporation, Eastech II Limited
Partnership and Eastech III Limited Partnership (collectively, the "Holders").
This Agreement is contemplated by a certain Agreement and Plan of Merger
dated as of December 22, 1997 (the "Merger Agreement") by and among the Company,
MI Acquisition Corp., a Delaware corporation, Intirion Corporation, a Delaware
corporation, and Xxxxxx X. Xxxxxxx.
The parties hereby agree as follows:
Section 1. Definitions.
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As used in this Agreement, the following terms shall have the following
meanings:
"Business Day" means any day other than a day on which banks are authorized
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or required to be closed in the State of New York.
"Closing Date" has the meaning ascribed thereto in the Merger Agreement.
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"Commission" means the Securities and Exchange Commission.
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"Common Shares" means the ___________ shares of Common Stock held by the
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Holders.
"Common Stock" means the common stock, par value $.01 per share, of the
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Company.
"Company" has the meaning set forth in the preamble and shall include the
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Company's successors by merger, acquisition, reorganization or otherwise.
"Controlling Persons" has the meaning set forth in Section 7(a).
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"Exchange Act" means the Securities Exchange Act of 1934, as amended from
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time to time, or any successor statute, and the rules and regulations of the
Commission promulgated thereunder.
"Lock-up Period" has the meaning set forth in Section 8.
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"Person" means any individual, corporation, partnership, limited liability
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company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof.
"Prospectus" means the prospectus included in any Registration Statement
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(including, without limitation,
a prospectus that discloses information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, including a prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by a
Shelf Registration Statement, and by all other amendments and supplements to the
prospectus, including post-effective amendments, and in each case including all
material incorporated by reference or deemed to be incorporated by reference in
such prospectus.
"Registrable Securities" means the Common Shares except for (i) Common
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Shares the sale of which is covered by a Registration Statement that has been
declared effective under the Securities Act, (ii) Common Shares which may be
transferred immediately pursuant to Rule 144 (or any similar provision then in
force, but not Rule 144A) under the Securities Act, including a sale pursuant to
the provisions of Rule 144(k), and (iii) Common Shares which cease to be
outstanding.
"Registration Expenses" has the meaning set forth in Section 6.
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"Registration Statement" means any registration statement of the Company
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that covers any of the Registrable Securities pursuant to the provisions of this
Agreement (including any Shelf Registration Statement), and all amendments and
supplements to any such registration statement, including post-effective
amendments, in each case including the Prospectus, all exhibits, and all
material incorporated by reference or deemed to be incorporated by reference in
such registration statement.
"Securities Act" means the Securities Act of 1933, as amended from time to
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time, or any successor statute, and the rules and regulations of the Commission
promulgated thereunder.
"Shelf Registration" has the meaning set forth in Section 2.
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"Shelf Registration Statement" has the meaning set forth in Section 2.
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"Sun Services Agreement" means the Stockholders' Agreement dated as of
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April 27, 1997 by and among the Company and certain stockholders of the Company.
"Suspension Period" has the meaning set forth in Section 5.
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"Suspension Notice" has the meaning set forth in Section 5.
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"Target Effective Period" has the meaning set forth in Section 2.
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Section 2. Shelf Registration. The Company shall use its best efforts to
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file and cause to become effective under the Securities Act no later than the
date which is thirty (30) days after the Closing Date a shelf registration
statement (the "Shelf Registration Statement") on the appropriate form for an
offering to be made on a continuous basis pursuant to Rule 415 under the
Securities Act (or such successor rule or similar provision then in effect)
covering all of the Registrable Securities (a "Shelf Registration"). The
parties hereto agree that the Shelf Registration may be included in the
registration statement on Form S-4 to be filed by the Company as contemplated by
the Merger Agreement. Once the Shelf Registration Statement is effective, the
Company shall use commercially reasonable efforts to keep such Shelf
Registration Statement continuously effective for a period (the "Target
Effective Period") ending with the earlier of (a) the sale of all Registrable
Securities and (b) 12 months following the Closing Date.
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Section 3. Piggy-back Registrations.
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(a) If at any time or times after the date hereof the Company shall
determine to register under the Securities Act any shares of Common Stock (other
than in connection with a registration on Form S-4 or S-8 (or then equivalent
forms) or a registration statement filed in connection with an exchange offer or
offering of securities solely to the Company's existing securityholders) and the
form of registration statement to be used permits the registration of
Registrable Securities, then the Company shall promptly give written notice of
such proposed registration to the Holders (but in no event less than thirty (30)
days prior to the anticipated effective date of the registration statement). If
within twenty (20) days after the receipt of such notice the Company receives a
written request from any Holder for the inclusion in such registration of some
or all of the Registrable Securities held by such Holder (which request shall
specify the number of Registrable Securities intended to be disposed of by such
Holder and the intended method of distribution thereof), the Company shall use
commercially reasonable efforts to cause such Registrable Securities to be
included in such registration on the same terms and conditions as any similar
securities of the Company or any other securityholder included therein and to
permit the sale or other disposition of such Registrable Securities in
accordance with the intended method of distribution thereof. The Company may
withdraw a registration under this Section 3 at any time prior to the time it
becomes effective, provided that the Company shall give prompt notice of such
withdrawal to the Holders which requested to be included in such registration.
(b) In connection with any offering under this Section 3 involving
an underwriting, the Company shall not be required to include a Holder's
Registrable Securities in the underwritten offering unless such Holder accepts
the terms of the underwriting as agreed upon between the Company and the
underwriters selected by the Company. If the managing underwriter of an
underwritten offering with respect to which registration has been requested by
any Holder pursuant to this Section 3 has advised the Company that, in such
underwriter's good faith judgment, the number of securities to be sold in such
offering by persons other than the Company (collectively, "Selling
Stockholders") is greater than the number which can be offered without adversely
affecting such offering, then the Company may reduce the number of securities to
be included in such offering for the accounts of Selling Stockholders (including
the Holders) to a number deemed satisfactory by the managing underwriter,
provided, however, that the securities to be excluded shall be determined in the
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following order of priority: first, securities held by any Selling Stockholder
not having contractual, incidental registration rights; second, securities held
by any Selling Stockholder (including the Holders) participating in such
offering pursuant to the exercise of contractual piggyback registration rights
pursuant to an agreement other than the Sun Services Agreement, as determined on
a pro rata basis (based upon the aggregate number of securities held by such
Selling Stockholders) and third, securities held by any Selling Stockholder
participating in such offering pursuant to the exercise of the registration
rights under Section 4.1 of the Sun Services Agreement, as determined on a pro
rata basis (based upon the aggregate number of securities held by such Selling
Stockholders).
(c) Each Holder hereby agrees that such Holder may not participate
in any underwritten offering hereunder unless the Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by persons 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 the underwriting arrangements.
Section 4. Registration Procedures.
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In connection with the obligations of the Company to register Registrable
Securities pursuant to the terms and conditions of this Agreement:
(a) The Company shall prepare and file with the Commission a
Registration Statement on
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the appropriate form under the Securities Act, which form shall comply as
to form in all materials respects with the requirements of the applicable
form and include all financial statements required by the Commission to be
filed therewith.
(b) The Company shall prepare and file with the Commission such
amendments and post-effective amendments to any Registration Statement as
may be necessary to keep such Registration Statement effective for (i) in
the case of the Shelf Registration Statement, the Target Effective Period
and (ii) in the case of any Registration Statement other than the Shelf
Registration Statement, the lesser of (A) one hundred eighty (180) days or
(B) the period necessary to complete the proposed offering of Registrable
Securities; shall cause the Prospectus included in such Registration
Statement to be supplemented by any required Prospectus supplement, and, as
so supplemented, to be filed pursuant to Rule 424 under the Securities Act;
and shall comply with the provisions of the Securities Act applicable to it
with respect to the disposition of all Registrable Securities covered by
such Registration Statement.
(c) The Company shall furnish to any Holder, without charge, such
number of conformed copies of any Registration Statement and any post-
effective amendment thereto and such number of copies of the Prospectus
(including each preliminary Prospectus) and any amendments or supplements
thereto, as such Holder may reasonably request in order to facilitate the
sale of such Holder's Registrable Securities.
(d) The Company shall use commercially reasonable efforts to register
or qualify the Registrable Securities covered by any Registration Statement
under such other securities or "blue sky" laws of such states of the United
States as any Holder reasonably requests; provided, however, that the
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Company shall not be required (i) to qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but
for this Section 4(d), (ii) to file any general consent to service of
process, or (iii) to subject itself to taxation in any jurisdiction where
it would not otherwise be subject to taxation.
(e) The Company shall promptly notify each Holder of the happening of
any event which makes any statement made in any Registration Statement or
related Prospectus untrue or which requires the making of any changes in
such Registration Statement or Prospectus 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 light of the circumstances under which they were made, not misleading,
and promptly following expiration of any Suspension Period (as defined in
Section 5), the Company shall prepare and file with the Commission and
furnish a supplement or amendment to such Prospectus so that, as thereafter
deliverable to the purchasers of Registrable Securities, such Prospectus
will not contain any 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 light of the circumstances under which they were
made, not misleading.
(f) The Company shall use commercially reasonable efforts to prevent
the issuance of any order suspending the effectiveness of any Registration
Statement, and, if one is issued, the Company shall use commercially
reasonable efforts to obtain the withdrawal of such order as promptly as
practicable.
(g) The Company shall cause the Registrable Securities included in any
Registration Statement to be listed on the New York Stock Exchange or such
other securities exchange on which similar securities issued by the Company
are then listed.
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Section 5. Suspension Period.
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Each Holder, upon receipt of any notice (a "Suspension Notice") from the
Company of the happening of any event of the kind described in Section 4(e) or
of any event which, in the Company's reasonable business judgment, could become
such an event, shall immediately discontinue disposition of the Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 4(e) (the period from the date on which such
Holder receives a Suspension Notice to the date on which such Holder receives
copies of the supplemented or amended Prospectus is referred to herein as the
"Suspension Period"). If so directed by the Company, each Holder will deliver
to the Company all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Securities that
is current at the time of receipt of such notice. In the event that the Company
shall give any Suspension Notice, (i) the Company shall use commercially
reasonable efforts and take such actions as are reasonably necessary to end the
Suspension Period as promptly as practicable and (ii) in the event such
Suspension Period relates to the Shelf Registration Statement, the Target
Effective Period shall be extended by the number of days during the Suspension
Period.
Section 6. Registration Expenses.
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Subject to the proviso below, any and all expenses incident to the
Company's performance of or compliance with this Agreement, including without
limitation Commission and securities exchange registration and filing fees,
reasonable fees and expenses of one legal counsel for the Holders, fees and
expenses incurred in connection with compliance with state securities or "blue
sky" laws, printing expenses, fees and expenses incurred in connection with the
listing of the Registrable Securities and fees and disbursements of counsel for
the Company and of the independent certified public accountants of the Company
(all such expenses being herein called "Registration Expenses"), will be borne
by the Company; provided, however, that Registration Expenses shall not include
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(i) underwriting discounts and commissions and transfer taxes, if any, relating
to the sale or disposition of Registrable Securities, (ii) any fees or expenses
of any counsel, accountants or other persons retained or employed by the
Holders, (other than the fees and expenses of one legal counsel as provided
above) or (iii) out-of-pocket expenses of the Holders and their agents,
including, without limitation, any travel costs.
Section 7. Indemnification and Contribution.
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(a) Indemnification by the Company. The Company agrees to indemnify and
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hold harmless, to the full extent permitted by law, each Holder, its officers,
directors, employees and agents and each Person, if any, which controls such
Holder within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, (collectively, "Controlling Persons"), from and against
all losses, claims, damages, liabilities and expenses (including without
limitation any legal or other fees and expenses reasonably incurred by any
Holder or any such Controlling Person in connection with defending or
investigating any action or claim in respect thereof) (collectively, "Damages")
to which any of them may become subject under the Securities Act or otherwise,
insofar as such Damages arise out of or are based upon (i) any untrue or alleged
untrue statement of material fact contained in any Registration Statement
(including any related preliminary or final Prospectus) pursuant to which
Registrable Securities were registered under the Securities Act, or (ii) any
omission or alleged omission to state therein a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, except insofar as such Damages arise out of or are based
upon any such untrue statement or omission or alleged untrue statement or
omission based upon information furnished in writing to the Company by such
Holder expressly for use therein.
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(b) Indemnification by the Holders. Each Holder agrees to indemnify and
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hold harmless, to the full extent permitted by law, the Company, its directors,
officers, employees and agents and each Controlling Person of the Company, from
and against any and all Damages to which any of them may become subject under
the Securities Act or otherwise to the same extent as the foregoing indemnity
from the Company to such Holder, but only to the extent such Damages arise out
or are based upon any untrue statement or omission or alleged untrue statement
or omission based upon information furnished to the Company in writing by such
Holder expressly for use in any Registration Statement. In no event shall the
liability of any Holder for indemnification under this Section 7(b) in its
capacity as such (and not in such Holder's capacity as an officer or director of
the Company) exceed the proceeds received by such Holder from the sale of
Registrable Securities under such Registration Statement.
(c) Indemnification Procedures. In case any proceeding (including any
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governmental investigation) shall be instituted involving any Person in respect
of which indemnity may be sought pursuant to either paragraph (a) or (b) above,
such Person (the "indemnified party") shall promptly notify the Person against
whom such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceedings and shall pay the fees and
disbursements of such counsel relating to such proceeding. The failure or delay
of an indemnified party to notify the indemnifying party with respect to a
particular proceeding shall not relieve the indemnifying party from any
obligation or liability which it may have pursuant to this Agreement if the
indemnifying party is not prejudiced by such failure or delay. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent. No
indemnifying party shall, without the prior written consent of any indemnified
party (which consent shall not be unreasonably withheld), effect any settlement
of any pending or threatened proceeding in respect of which such indemnified
party is a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on all claims that are the subject
matter of such proceeding.
(d) Contribution. To the extent that the indemnification provided for in
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paragraph (a) or (b) of this Section 7 is held by a court of competent
jurisdiction to be unavailable to an indemnified party in respect of any
Damages, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such Damages (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand, and each Holder on the other, from the offering of
the Registrable Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company, on the one hand, and the Holders, on the
other, in connection with the statements or omissions which resulted in such
Damages, as well as any other relevant equitable considerations. The relative
fault of the Company on the one hand and of the Holders on the other hand 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 the Company or by the Holders
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
If indemnification is available under paragraph (a) or (b) of this
Section 7, the indemnifying parties shall indemnify each indemnified party to
the full extent provided in such paragraphs without regard to the relative
benefits to or relative fault of said indemnifying party or indemnified party or
any other equitable consideration provided for in this Section 7(d).
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The Company and each Holder agrees that it would not be just or equitable
if contribution pursuant to this Section 7(d) were determined by pro rata
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allocation or by any other method of allocation that does not take account of
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the Damages referred to in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred (and
not otherwise reimbursed) by such indemnified party in connection with
investigating or defending any such action or claim. In no event shall any
Holder be required to contribute an amount under this Section 7(d) in excess of
the proceeds received by such Holder from the sale of Registrable Securities
under the relevant Registration Statement. 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.
Section 8. Restrictions on Sales by Holders.
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In the event of an underwritten public offering of securities of the
Company, each Holder shall, upon the written request of the managing underwriter
(or underwriters) of such offering, agree not to effect any sale or disposition
of any securities similar to those being registered in such offering, including,
without limitation, sales of Registrable Securities pursuant to the Shelf
Registration Statement, for such period (the "Lock-up Period"), not to exceed
the lock-up period to which the executive officers of the Company agree in
connection with such offering, as such underwriter may specify. Such agreement
shall be in form and substance satisfactory to the Company and such underwriter.
The Target Effective Period shall be extended by the number of days during the
Lock-up Period.
Section 9. Information Furnished by Holders.
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Each Holder shall furnish to the Company such information regarding such
Holder and such Holder's intended method of distribution of the Registrable
Securities as the Company may from time to time reasonably request in writing in
order to comply with the Securities Act and the provisions of this Agreement.
Each Holder agrees (a) to notify the Company as promptly as practicable of any
inaccuracy or change in information previously furnished by the Holder to the
Company or of the occurrence of any event, in either case as a result of which
any Prospectus contains or would contain an untrue statement of a material fact
regarding the Holder or the Holder's intended method of distribution of the
Registrable Securities or omits or would omit to state any material fact
regarding the Holder or the Holder's intended method of distribution of the
Registrable Securities required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and (b) to promptly furnish to the Company any additional information required
to correct and update any previously furnished information or required so that
the Prospectus shall not contain, with respect to the Holder or the Holder's
intended method of distribution of the Registrable Securities, an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing.
Section 10. Miscellaneous.
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(a) Amendments and Waivers. The provisions of this Agreement, including
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the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of the Holders of a
majority in interest of the Registrable Securities then outstanding.
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(b) Notices. All notices and other communications provided for or
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permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally or sent by telecopier, registered or certified
mail (return receipt requested), postage prepaid or courier to the parties at
their respective addresses set forth on the signature pages hereof (or at such
other address for any party as shall be specified by like notice, provided that
notices of a change of address shall be effective only upon receipt thereof).
All such notices and communications shall be deemed to have been received: at
the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged, if telecopied; and on the next Business Day if timely delivered to
a courier guaranteeing overnight delivery.
(c) Successors and Assigns. This Agreement shall inure to the benefit of
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and be binding upon the successors of each of the parties. No Holder may assign
any of its rights hereunder without the prior written consent of the Company.
(d) Counterparts. This Agreement may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the Commonwealth of Massachusetts without regard to
principles of conflicts of law.
(g) Severability. In the event that any one or more of the provisions
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contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the Holders
shall be enforceable to the fullest extent permitted by law.
(h) Entire Agreement. This Agreement is intended by the parties as a final
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expression of their agreement and is intended to be the complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
XXX-XXXX CORPORATION
By:
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Name:
Title:
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Xxxxxx X. Xxxxxxx, individually
GELCO CORPORATION
By:
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Name:
Title:
EASTECH II LIMITED PARTNERSHIP
By:
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its general partner
By:
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Name:
Title:
EASTECH III LIMITED PARTNERSHIP
By:
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its general partner
By:
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Name:
Title:
