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EXECUTION COPY
Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of June 30, 1998, by
and among AMERICAN COMMERCIAL LINES HOLDINGS LLC, a Delaware limited liability
company (the "LLC"),VECTURA GROUP, INC., a Delaware corporation ("Vectura"),
NATIONAL MARINE, INC., a Delaware corporation ("NMI"), CSX XXXXX CORP., a
Delaware corporation ("CSX"), XXXXXX XXXXXXXX and XXXXXX XXXXXXXX (the
"Investors"), and each of those Persons whose names are set forth on Schedule I
attached hereto (collectively, "Management" and, together with Vectura, NMI, CSX
and the Investors, the "Members"). Capitalized terms used herein but not
otherwise defined have the meaning set forth in Section 1.
WHEREAS, the Members have acquired a number of the LLC's
Junior Common Units (the "Junior Common") pursuant to the terms and conditions
of that certain Amended and Restated Limited Liability Company Agreement by and
among the LLC and the Members, dated as of the date hereof, as amended,
restated, or modified from time to time (the "LLC Agreement");
WHEREAS, CSX has acquired a number of the LLC's Senior
Preferred Units (the "Senior Preferred") pursuant to the terms and conditions of
the LLC Agreement; and
WHEREAS, in order to induce the Members to enter into the LLC
Agreement, the LLC has agreed to provide to such Persons the registration rights
set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
1. Definitions. As used herein, the following terms shall have
the following meanings.
"Affiliate" means, as to any Person, any other Person directly
or indirectly, through one or more intermediaries, controlling, controlled by,
or under common control with such Person; provided, the term "control," as used
in this definition, shall mean with respect to any Person, the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of the controlled entity (whether through ownership of
voting securities, by contract or otherwise).
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor thereto.
"CSX Junior Registrable Securities" means (i) any Junior
Common issued or issuable to CSX pursuant to the LLC Agreement, (ii) any Junior
Common subsequently acquired by CSX or any of its Affiliates, and (iii) any
securities of the LLC issued or issuable directly or indirectly with respect to
the securities referred to in clauses (i) or (ii) above by way of dividend
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or distribution, recapitalization, merger, consolidation, exchange or other
reorganization, including, without limitation, Reclassified Securities issued
with respect to such Junior Common. As to any particular CSX Junior Registrable
Securities, such securities shall cease to be CSX Junior Registrable Securities
when they have been distributed to the public pursuant to an offering registered
under the Securities Act or sold to the public through a broker, dealer or
market maker in compliance with Rule 144 under the Securities Act (or any
similar rule then in force). For purposes of this Agreement, a Person will be
deemed to be a holder of CSX Junior Registrable Securities whenever such Person
holds such securities directly or indirectly or has the right to acquire
directly or indirectly such CSX Junior Registrable Securities (upon conversion
or exercise in connection with a transfer of securities or otherwise, but
disregarding any restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected.
"CSX Registrable Securities" means, collectively, (i) CSX
Junior Registrable Securities and (ii) CSX Senior Registrable Securities.
"CSX Senior Registrable Securities" means (i) any Senior
Preferred issued or issuable to CSX pursuant to the LLC Agreement, (ii) any
Senior Preferred subsequently acquired by CSX or any of its Affiliates, (iii)
any securities of the LLC issued or issuable directly or indirectly with respect
to the securities referred to in clauses (i) or (ii) above by way of dividend or
distribution, recapitalization, merger, consolidation or other reorganization,
including, without limitation, the Exchange Notes and any Reclassified
Securities issued with respect to such Senior Preferred, and (iv) any derivative
securities whose value or other economic features is based on the value or other
economic features of the securities referred to in clauses (i), (ii), or (iii)
above. As to any particular CSX Senior Registrable Securities, such securities
shall cease to be CSX Senior Registrable Securities when they have been
distributed to the public pursuant to an offering registered under the
Securities Act or sold to the public through a broker, dealer or market maker in
compliance with Rule 144 under the Securities Act (or any similar rule then in
force). For purposes of this Agreement, a Person will be deemed to be a holder
of CSX Senior Registrable Securities whenever such Person holds such securities
directly or indirectly or has the right to acquire directly or indirectly such
CSX Senior Registrable Securities (upon conversion or exercise in connection
with a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" has the meaning set forth in the LLC
Agreement.
"Initial Public Offering" means the initial, exclusively
primary underwritten public offering of the LLC's common equity securities
pursuant to a registration statement filed under the Securities Act with the
SEC, which offering results in net cash proceeds to the LLC of at least
$50,000,000.
"Investor Registrable Securities" means (i) any Junior Common
issued or issuable to the Investors pursuant to the LLC Agreement, (ii) any
Junior Common subsequently acquired by the Investors or any of their respective
Affiliates, and (iii) any securities of the LLC issued or
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issuable directly or indirectly with respect to the securities referred to in
clauses (i) or (ii) above by way of recapitalization, merger, consolidation,
exchange or other reorganization, including, without limitation, Reclassified
Securities issued with respect to such Junior Common. As to any particular
Investor Registrable Securities, such securities shall cease to be Investor
Registrable Securities when they have been distributed to the public pursuant to
an offering registered under the Securities Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 under the Securities
Act (or any similar rule then in force). For purposes of this Agreement, a
Person will be deemed to be a holder of Investor Registrable Securities whenever
such Person has the right to acquire directly or indirectly such Investor
Registrable Securities (upon conversion or exercise in connection with a
transfer of securities, or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
"LLC Agreement" means the Amended and Restated Limited
Liability Company Agreement of the Company, dated as of the date hereof, by and
among the Company and the parties hereto.
"LLC Registrable Securities" means (i) CSX Junior Registrable
Securities, (ii) Vectura Registrable Securities, (iii) Management Registrable
Securities, and (iv) Investor Registrable Securities. As to any particular LLC
Registrable Securities, such securities shall cease to be LLC Registrable
Securities when they have been distributed to the public pursuant to an offering
registered under the Securities Act or sold to the public through a broker,
dealer or market maker in compliance with Rule 144 under the Securities Act (or
any similar rule then in force). For purposes of this Agreement, a Person will
be deemed to be a holder of LLC Registrable Securities whenever such Person has
the right to acquire directly or indirectly such LLC Registrable Securities
(upon conversion or exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon the exercise of
such right), whether or not such acquisition has actually been effected.
"Management Registrable Securities" means (i) any Junior
Common issued or issuable to Management pursuant to the LLC Agreement and vested
pursuant to the terms of the applicable agreement for such Junior Common, (ii)
any Junior Common subsequently acquired by Management or any of their respective
Affiliates and vested pursuant to the terms of the applicable agreement for such
Junior Common, and (iii) any securities of the LLC issued or issuable directly
or indirectly with respect to the securities referred to in clauses (i) or (ii)
above by way of recapitalization, merger, consolidation, exchange or other
reorganization, including without limitation, Reclassified Securities issued
with respect to such Junior Common. As to any particular Management Registrable
Securities, such securities shall cease to be Management Registrable Securities
when they have been distributed to the public pursuant to an offering registered
under the Securities Act or sold to the public through a broker, dealer or
market maker in compliance with Rule 144 under the Securities Act (or any
similar rule then in force). For purposes of this Agreement, a Person will be
deemed to be a holder of Management Registrable Securities whenever such Person
has the right to acquire directly or indirectly such Management Registrable
Securities (upon conversion or exercise in connection with a transfer of
securities or
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otherwise, but disregarding any restrictions or limitations upon the exercise of
such right), whether or not such acquisition has actually been effected.
"Reclassified Securities" has the meaning set forth in the LLC
Agreement.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a limited liability company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Registrable Securities" means, collectively, (i) CSX Junior
Registrable Securities, (ii) CSX Senior Registrable Securities, (iii) Vectura
Registrable Securities, (iv) Management Registrable Securities, and (v) Investor
Registrable Securities.
"Registration Expenses" means all expenses incident to the
LLC's performance of or compliance with this Agreement, including, without
limitation, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, and fees and disbursements of counsel for the LLC and all independent
certified public accountants, underwriters (excluding discounts and commissions)
and other Persons retained by the LLC.
"Rule 144" means Rule 144 under the Securities Act (or any
similar rule then in force).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Vectura Registrable Securities" means (i) any Junior Common
issued or issuable to Vectura and NMI pursuant to the LLC Agreement, (ii) any
Junior Common subsequently acquired by Vectura, NMI or any of their respective
Affiliates or stockholders, and (iii) any securities of the LLC issued or
issuable directly or indirectly with respect to the securities referred to in
clauses (i) or (ii) above by way of recapitalization, merger, consolidation,
exchange or other reorganization, including, without limitation, Reclassified
Securities issued with respect to such Junior Common. As to any particular
Vectura Registrable Securities, such securities shall cease to be Vectura
Registrable Securities when they have been distributed to the public pursuant to
an offering registered under the Securities Act or sold to the public through a
broker, dealer or market maker in compliance with Rule 144 under the Securities
Act (or any similar rule then in force). For purposes of this Agreement, a
Person will be deemed to be a holder of Vectura Registrable Securities whenever
such Person has the right to acquire directly or indirectly such Vectura
Registrable Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
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2. Demand Registrations.
(a) Requests for Registration of LLC Registrable Securities.
Subject to Section 2(b) below, (i) upon six (6) months after the consummation of
an Initial Public Offering, the holders of a majority of the CSX Junior
Registrable Securities may request registration, whether underwritten or
otherwise, under the Securities Act of all or part of the CSX Junior Registrable
Securities held by such holders, (ii) upon and after the earlier of (A) the
third anniversary of the date hereof and (B) six (6) months after the
consummation of an Initial Public Offering, the holders of a majority of the CSX
Senior Registrable Securities may request registration, whether underwritten or
otherwise, under the Securities Act of all or part of the CSX Senior Registrable
Securities held by such holders; provided, that any such registration of CSX
Senior Registrable Securities shall be subject to Section 8.1(a) of the LLC
Agreement and (iii) the holders of a majority of the Vectura Registrable
Securities may request registration, whether underwritten or otherwise, under
the Securities Act of all or part of the Vectura Registrable Securities held by
such holders, in each case on Form S-1 or any similar long-form registration
(collectively, "Long-Form Registrations") or, if available, on Form S-2 or S-3
(including pursuant to Rule 415 under the Securities Act (a "415 Registration"))
or any similar short-form registration ("Short-Form Registrations"). Each
request for a Long-Form Registration or Short-Form Registration shall specify
the approximate number of LLC Registrable Securities requested to be registered
and the anticipated price range for such offering. Within ten days after receipt
of any such request for a Long-Form Registration or Short-Form Registration
regarding LLC Registrable Securities, the LLC will give written notice of such
requested registration to all other holders of Registrable Securities and will
include (subject to the provisions of this Agreement) in such registration, all
Registrable Securities with respect to which the LLC has received written
requests for inclusion therein within 20 days after the receipt of such notice
by such holders of Registrable Securities from the LLC. All registrations
requested pursuant to in this Section 2(a) are referred to herein as "Demand
Registrations."
(b) Long-Form Registrations. The holders of a majority of the
CSX Junior Registrable Securities will be entitled to request up to two
Long-Form Registrations with respect to the CSX Junior Registrable Securities
held by such holders, of which the LLC will pay all Registration Expenses. The
holders of a majority of the CSX Senior Registrable Securities will be entitled
to request one Long-Form Registration with respect to the CSX Senior Registrable
Securities held by such holders, of which the LLC will pay all Registration
Expenses. The holders of a majority of the Vectura Registrable Securities
collectively will be entitled to request up to three Long-Form Registrations
with respect to the Vectura Registrable Securities, of which the LLC will pay
all Registration Expenses; provided, that the first such Long-Form Registration,
of Vectura Registrable Securities, if requested prior to an Initial Public
Offering, results in the registration of common equity securities resulting in
an amount of net cash proceeds sufficient to qualify as an Initial Public
Offering. A registration will not count as the permitted Long-Form Registration
hereunder until such registration has become effective and unless the holders of
the LLC Registrable Securities requested to be included in such registration are
able to register and sell at least 75% of the Registrable Securities requested
to be included in such registration.
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(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to Section 2(b), each of the holders of the CSX
Senior Registrable Securities, CSX Junior Registrable Securities, and the
Vectura Registrable Securities will be entitled to request an unlimited number
of Short-Form Registrations with respect to the Registrable Securities held by
such holders of which the LLC will pay all Registration Expenses. Demand
Registrations (other than 415 Registrations) will be Short-Form Registrations
whenever the LLC is permitted to use any applicable short form. After the LLC
has become subject to the reporting requirements of the Exchange Act, the LLC
will use its best efforts to make Short-Form Registration available for the sale
of Registrable Securities.
(d) Priority on Demand Registrations. The LLC will not include
in any Long-Form Registration or Short-Form Registration regarding Registrable
Securities any securities that are not Registrable Securities without the prior
written consent of the holders of at least a majority of the Registrable
Securities participating in such registration. If a Long-Form Registration or a
Short-Form Registration regarding Registrable Securities is an underwritten
offering and the managing underwriters advise the LLC in writing that, in their
opinion, the number or class of Registrable Securities and, if permitted
hereunder, other securities requested to be included in such offering, exceeds
the number or class of Registrable Securities and other securities, if any,
which can be sold therein without adversely affecting the marketability of the
offering, the LLC will include in such registration (i) first, (A) to the extent
LLC Registrable Securities requested for inclusion therein need to be reduced as
a result of such advice, the number of LLC Registrable Securities requested to
be included in such registration pro rata, if necessary, among the holders of
LLC Registrable Securities based on the number of LLC Registrable Securities
owned by each such holder and (B) to the extent CSX Senior Registrable
Securities requested for inclusion therein need to be reduced as a result of
such advice, the number of CSX Senior Registrable Securities requested to be
included in such registration pro rata, if necessary, among the holders of CSX
Senior Registrable Securities based on the number of CSX Senior Registrable
Securities owned by each such holder and (ii) second, any other securities of
the LLC requested to be included in such registration pro rata, if necessary, on
the basis of the number of such other securities owned by each such holder.
(e) Restrictions on Demand Registrations. The LLC will not be
obligated to effect any Demand Registration for LLC Registrable Securities
within 90 days after the effective date of a previous Demand Registration for
LLC Registrable Securities which resulted in a sale of LLC Registrable
Securities. The LLC may postpone for no more than 90 days in each 360-day
period, the filing or the effectiveness of a registration statement for a Demand
Registration, if the LLC determines in good faith that such Demand Registration
might reasonably be expected to have an adverse effect on any proposal or plan
to engage in any acquisition or disposal of stock or assets or any merger,
consolidation, tender offer or similar transaction; provided, that, in such
event, the holders of a majority of the Registrable Securities initially
requesting such Demand Registration will be entitled to withdraw such request
and, if such request is withdrawn, such Demand Registration will not count as a
Demand Registration.
(f) Selection of Underwriters. In the case of a Demand
Registration for an underwritten offering made pursuant to the terms and
conditions of this Agreement by the hold-
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ers of a majority of (i) a class of LLC Registrable Securities or (ii) the CSX
Senior Registrable Securities, the holders of a majority of the LLC Registrable
Securities or the CSX Senior Registrable Securities, respectively, to be
included in such Demand Registration will have the right to select the
investment banker(s) and manager(s) to administer the offering, which investment
banker(s) and manager(s) will be nationally recognized and reasonably acceptable
to the LLC.
(g) 415 Registrations.
(i) Each of the holders of a majority of the CSX Junior
Registrable Securities and the holders of a majority of the Vectura Registrable
Securities will be entitled to request one (1) 415 Registration in which the LLC
will pay all Registration Expenses. Subject to the availability of required
financial information, within 45 days after the LLC receives written notice of a
request for a 415 Registration, the LLC shall file with the SEC a registration
statement under the Securities Act for the 415 Registration. The LLC shall use
its best efforts to cause the 415 Registration to be declared effective under
the Securities Act as soon as practical after filing and, once effective, the
LLC shall (subject to the provisions of clause (ii) below) cause such 415
Registration to remain effective for such time period as is specified in such
request, but for no time period longer than the period ending on the earlier of
(i) the third anniversary of the date of filing of the 415 Registration, or (ii)
the date on which all LLC Registrable Securities have been sold pursuant to the
415 Registration.
(ii) If the holders of a majority of the CSX Junior
Registrable Securities or the holders of a majority of the Vectura Registrable
Securities notify the LLC in writing that they intend to effect the sale of all
or substantially all of the CSX Junior Registrable Securities or the Vectura
Registrable Securities, as the case may be, held by such holders pursuant to a
single integrated offering pursuant to a then effective registration statement
for a 415 Registration (a "Takedown"), the LLC and each holder of Registrable
Securities shall not effect any public sale or distribution of its equity
securities, or any securities convertible into or exchangeable or exercisable
for its equity securities, during the 90-day period beginning on the date such
notice of a Takedown is received.
(iii) If in connection with any Takedown, the managing
underwriters (selected in accordance with clause (iv) below) advise the LLC
that, in its opinion, the inclusion of any other securities other than CSX
Junior Registrable Securities or Vectura Registrable Securities, as the case may
be, in the Takedown would adversely affect the marketability of the offering,
then no such securities shall be permitted to be included. Additionally, if in
connection with such an offering, the number of CSX Junior Registrable
Securities or Vectura Registrable Securities, as the case may be, and other
securities (if any) requested to be included in such Takedown exceeds the number
of CSX Junior Registrable Securities or Vectura Registrable Securities, as the
case may be, and other securities which can be sold in such offering without
adversely affecting the marketability of the offering, the LLC shall include in
such Takedown (i) first, the CSX Junior Registrable Securities or Vectura
Registrable Securities, as the case may be, requested to be included in such
Takedown, pro rata among the holders of such Registrable Securities on the basis
of the number of CSX Junior Registrable Securities or Vectura Registrable Se-
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curities, as the case may be, owned by each such holder, and (ii) second, other
securities requested to be included in such Takedown to the extent permitted
hereunder.
(iv) The holders of a majority of the CSX Junior
Registrable Securities or Vectura Registrable Securities, as the case may be,
shall have the right to retain and select an investment banker and manager to
administer the 415 Registration and any Takedown pursuant thereto, subject to
the LLC's approval which will not be unreasonably withheld.
(v) In addition to the provisions in Section 6 below, all
expenses incurred in connection with the management of the 415 Registration
(whether incurred by the LLC or otherwise) shall be borne by the LLC (including,
without limitation, all fees and expenses of the investment banker and manager)
(excluding discounts and commissions).
(h) Other Registration Rights. Except as provided in this
Agreement, the LLC will not grant to any Persons the right to request the LLC to
register any of its equity securities or any securities convertible or
exchangeable into or exercisable for such securities, on a "demand" basis, or on
a "piggy-back" basis which are senior to or pari passu with those rights granted
to the holders of CSX Junior Registrable Securities hereunder, for purposes of
Sections 2(d), 3(c), and 3(d) hereof without the prior written consent of a
majority of the holders of CSX Junior Registrable Securities and the LLC
Registrable Securities.
3. Piggyback Registrations.
(a) Right to Piggyback. Whenever the LLC proposes to register
any of its common equity securities (or Senior Preferred) under the Securities
Act (other than pursuant to a Demand Registration, an Initial Public Offering, a
registration statement on Form S-8 or the registration solely of so-called
"equity kickers" in connection with the registration of debt securities), and
the registration form to be used may be used for the registration of Registrable
Securities (each, a "Piggyback Registration"), the LLC will give prompt written
notice to all holders of Registrable Securities of its intention to effect such
a registration. The LLC shall include in any such registration by it all
Registrable Securities with respect to which it has received written requests
for inclusion therein within 20 days after the receipt by such holders of such
written notice from the LLC.
(b) Piggyback Expenses. The Registration Expenses of the
holders of Registrable Securities will be paid by the LLC in all Piggyback
Registrations involving Registrable Securities.
(c) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf of the LLC, the
LLC will include in such registration all securities requested to be included in
such registration; provided, that if the managing underwriters advise the LLC in
writing that in their opinion the number or class of such securities requested
to be included in such registration exceeds the number or class which can be
sold in such offering without adversely affecting the marketability of the
offering, the LLC will include in such registration (i) first, the securities
that the LLC proposes to sell, (ii) second, (A) to the extent LLC Registrable
Securities requested for inclusion therein need to be reduced as a result of
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such advice, the LLC Registrable Securities requested to be included in such
registration, pro rata among the holders of such LLC Registrable Securities on
the basis of the number of units of LLC Registrable Securities owned by each
such holder and (B) to the extent CSX Senior Registrable Securities requested
for inclusion therein need to be reduced as a result of such advice, the CSX
Senior Registrable Securities requested to be included in such registration pro
rata among holders of CSX Senior Registrable Securities on the basis of the
number of units of CSX Registrable Securities owned by each such holder, and
(iii) third, other securities, if any, requested to be included in such
registration, pro rata among the holders of such securities on the basis of the
number of shares owned by each such holder.
(d) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the LLC's securities (and is not a Demand Registration) and the managing
underwriters advise the LLC in writing that in their opinion the number or class
of securities of the class registered in such Piggyback Registration requested
to be included in such registration exceeds the number or class which can be
sold in such offering without adversely affecting the marketability of the
offering, the LLC will include in such registration (i) first, the securities
requested to be included therein by the holders requesting such registration,
(ii) second, (A) to the extent LLC Registrable Securities requested for
inclusion therein need to be reduced as a result of such advice, the LLC
Registrable Securities requested to be included in such registration, pro rata
among the holders of such LLC Registrable Securities on the basis of the number
of shares of LLC Registrable Securities owned by each such holder and (B) to the
extent CSX Senior Registrable Securities requested for inclusion therein need to
be reduced as a result of such advice, the CSX Senior Registrable Securities
requested to be included in such registration pro rata among holders of CSX
Senior Registrable Securities on the basis of the number of units of CSX
Registrable Securities owned by each such holder, and (iii) third, other
securities requested to be included in such registration not covered by clause
(i) above pro rata among the holders of such securities on the basis of the
number of shares owned by each such holder.
(e) Selection of Underwriters. If any Piggyback Registration
is an underwritten offering, the LLC will have the right to select the
investment banker(s) and manager(s) that will administer the offering.
(f) Other Registrations. If the LLC has previously filed a
registration statement with respect to Registrable Securities pursuant to this
Section 3, and if such previous registration has not been withdrawn or
abandoned, the LLC shall not file or cause to be effected any other registration
of any of its equity securities or securities convertible or exchangeable into
or exercisable for its equity securities under the Securities Act (except on
Forms S-4 or S-8 or any successor forms), whether on its own behalf or at the
request of any holder or holders of such securities, until a period of at least
90 days has elapsed from the effective date of such previous registration.
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4. Holdback Agreements.
(a) To the extent not inconsistent with applicable law, each
holder of LLC Registrable Securities hereby agrees not to effect any public sale
or distribution (including sales pursuant to Rule 144) of equity securities of
the LLC or any securities convertible into or exchangeable or exercisable for
such securities, during the seven days prior to and the 90-day period beginning
on the effective date of any Demand Registration (other than a 415 Registration)
or Piggyback Registration for a public offering to be underwritten on a firm
commitment basis in which the LLC Registrable Securities are included (except as
part of such underwritten registration), unless the underwriters managing the
registered public offering otherwise agree.
(b) The LLC agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities, during the seven days prior to
and during the 90-day period beginning on the effective date of any underwritten
Demand Registration (other than a 415 Registration) or Piggyback Registration
for LLC Registrable Securities (except as part of such underwritten registration
or pursuant to registrations on Forms S-4 or S-8 or any successor forms), unless
the underwriters managing the registered public offering otherwise agree, and
(ii) to cause each other holder of at least 5% (on a fully diluted basis) of
equity securities of the LLC or any securities convertible into or exchangeable
or exercisable for such equity securities, purchased from the LLC at any time
after the date hereof (other than in a registered public offering) to agree not
to effect any public sale or distribution (including sales pursuant to Rule 144)
of any such securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
5. Registration Procedures. Whenever the holders of
Registrable Securities have requested that any Registrable Securities be
registered pursuant to this Agreement, the LLC will use its best efforts to
effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant thereto
the LLC will as expeditiously as possible:
(a) prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective;
(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 for
a period of not less than six months and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such registration
statement;
(c) subject to the provisions of the LLC Agreement, if
requested by the holders of a majority of the Vectura Registrable Securities,
CSX Junior Registrable Securities, or CSX Senior Registrable Securities in
connection with any Demand Registration requested by such holders, use its best
efforts to cause to be included in such registration securities (of the
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same class as the securities underlying the applicable Demand Registration)
having an aggregate value (based on the midpoint of the proposed offering price
range specified in the registration statement used to offer such securities) of
up to $20.0 million, to be offered in a primary offering of the LLC's securities
contemporaneously with such offering of Registrable Securities;
(d) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(e) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; provided, that the LLC 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 subsection, (ii) subject itself to
taxation in any such jurisdiction, or (iii) consent to general service of
process (i.e., service of process which is not limited solely to securities law
violations) in any such jurisdiction;
(f) notify each seller of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the LLC will promptly
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading;
(g) notify each seller of such Registrable Securities and, if
requested by any such seller of Registrable Securities, confirm such notice in
writing, (A) when the prospectus or any prospectus supplement or post-effective
amendment included in such registration statement has been filed, and, with
respect to any registration statement or any post-effective amendment thereto,
when the same has become effective, (B) of any request by the Commission for
amendments to such registration statement or amendments or supplements to the
prospectus or for additional information relating thereto, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of the
registration statement under the Securities Act or of the suspension by any
state securities commission of the qualification of such Registrable Securities,
as applicable, for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes.
(h) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the LLC are then
listed and, if not so listed, to be listed on the Nasdaq National Market
("Nasdaq Market") (or such other national securities ex-
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change as the Board determines provides the best liquidity on which such
Registrable Securities may be listed (the "Alternative Exchange") and, if listed
on the Nasdaq Market (or the Alternative Exchange), use its best efforts to
secure designation of all such Registrable Securities covered by such
registration statement as a Nasdaq "National Market System security" within the
meaning of Rule 11Aa2-1 of the SEC (or similar designation of the Alternative
Exchange, if applicable) or, failing that, to secure Nasdaq Market authorization
for such Registrable Securities (or similar authorization of the Alternative
Exchange, if applicable) and, without limiting the generality of the foregoing,
to arrange for at least two market makers to register as such with respect to
such Registrable Securities with the National Association of Securities Dealers
(or similar body of the Alternative Exchange, if applicable);
(i) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(j) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities;
(k) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the LLC, and cause the managers, officers,
members, employees and independent accountants of the LLC to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(l) otherwise use its best 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 the
period of at least twelve months beginning with the first day of the first full
calendar quarter of the LLC after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 promulgated thereunder;
(m) permit any holder of Registrable Securities (which holder,
in the LLC's sole and exclusive judgment, might be deemed to be an underwriter
or a controlling person of the LLC) to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the LLC in writing, which in the reasonable judgment of
such holder and its counsel should be included;
(n) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any securities included in such registration statement for sale in any
jurisdiction, the LLC will use its reasonable best efforts promptly to obtain
the withdrawal of such order;
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(o) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the sellers thereof to consummate the disposition of such Registrable
Securities;
(p) obtain a "cold comfort" letter from the independent public
accountants of the LLC in customary form and covering such matters of the type
customarily covered by "cold comfort" letters as the holders of a majority of
the Registrable Securities being sold reasonably request; and
(q) otherwise facilitate such registration and related
offering.
If any such registration or comparable statement refers to any holder by name or
otherwise as the holder of any securities of the LLC and if, in its sole and
exclusive judgment, such holder is or might be deemed to be a controlling Person
of the LLC, such holder shall have the right to require (i) the insertion
therein of language, in form and substance satisfactory to such holder and
presented to the LLC in writing, to the effect that (x) the holding by such
holder of such securities is not to be construed as a recommendation by such
holder of the investment quality of the LLC's securities covered thereby and (y)
such holding does not imply that such holder will assist in meeting any future
financial requirements of the LLC or (ii) in the event that such reference to
such holder by name or otherwise is not required by the Securities Act, the
deletion of the reference to such holder; provided, that with respect to this
clause (ii) such holder shall furnish to the LLC an opinion of counsel to such
effect, which opinion and counsel shall be reasonably satisfactory to the LLC.
6. Registration Expenses. All Registration Expenses will be
borne by the LLC, with respect to any registration, proposed or otherwise, of
its securities.
7. Indemnification.
(a) The LLC agrees to indemnify, to the extent permitted by
law, (i) each holder of Registrable Securities, (ii) such holder's managers,
members, officers and directors, and (iii) each Person who controls (within the
meaning of the Securities Act) such holder against all losses, claims, damages,
liabilities, and expenses arising out of or based upon any untrue or alleged
untrue statement of material fact contained in any registration statement,
prospectus, or preliminary prospectus or any amendment thereof or supplement
thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
shall reimburse such holder, manager, member, director, officer, or controlling
Person for any legal or other expenses reasonably incurred by such holder,
manager, member, director, officer, or controlling Person in connection with the
investigation or defense of such loss, claim, damage, liability or expense,
except insofar as the same are caused by or contained in any information
furnished in writing to the LLC by such holder expressly for use therein or by
such holder's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the LLC has furnished
such holder with a sufficient number of copies of the same. In connection with
an underwritten offering, the LLC will indemnify such underwriters, their
officers and directors, and each Person who controls such
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underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the holders of Registrable
Securities.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder will furnish
to the LLC in writing such information and affidavits as the LLC reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify the LLC in
connection with any registration of Registrable Securities, and its managers,
members, directors and officers and each Person who controls the LLC against any
losses, claims, damages, liabilities and expenses resulting from any untrue or
alleged untrue statement of material fact contained in such registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by such
holder; provided, that the obligation to so indemnify will be individual to each
holder and will be limited to the net amount of proceeds received by such holder
from the sale of Registrable Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any manager, member, officer, director, or
controlling Person of such indemnified party and will survive the transfer of
securities. The LLC, to the extent so liable, also agrees to make such
provisions, as are reasonably requested by any indemnified party, for
contribution to such party in the event the indemnification provided by the LLC
pursuant to the terms and conditions of this Agreement is unavailable for any
reason.
8. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all customary
questionnaires, powers of attorney, indemnities, underwriting agreements and
other
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documents reasonably required under the terms of such underwriting arrangements;
provided, that no holder of Registrable Securities included in any underwritten
registration shall be required to make any representations or warranties to the
LLC or the underwriters other than representations and warranties regarding such
holder and such holder's intended method of distribution.
9. Rule 144 Reporting. With a view to making available to the
holders of Registrable Securities the benefits of certain rules and regulations
of the SEC which may permit the sale of the Registrable Securities to the public
without registration, the LLC agrees to use its best efforts to:
(a) make and keep current public information available, within
the meaning of Rule 144 or any similar or analogous rule promulgated under the
Securities Act, at all times after it has become subject to the reporting
requirements of the Exchange Act;
(b) file with the SEC, in a timely manner, all reports and
other documents required under the Securities Act and the Exchange Act (after
the LLC has become subject to such reporting requirements); and
(c) so long as any party hereto owns any Registrable
Securities, furnish to such Person forthwith upon request a written statement as
to the compliance by the LLC with the reporting requirements of said Rule 144
(at any time commencing 90 days after the effective date of the first
registration filed by the LLC for an offering of its securities to the general
public), the Securities Act and the Exchange Act (at any time after it has
become subject to such reporting requirements); a copy of its most recent annual
or quarterly report; and such other reports and documents as such Person may
reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.
10. Notices. All notices, demands or other communications to
be given or delivered under or by reason of the provisions of this Agreement
will be in writing and will be deemed to have been given when delivered
personally, mailed by certified or registered mail, return receipt requested and
postage prepaid, or sent via a nationally recognized overnight courier, or sent
via facsimile to the recipient. Such notices, demands and other communications
will be sent to the address listed on Exhibit A attached hereto or such other
address or to the attention of such other Person as the recipient party shall
have specified by prior written notice to the sending party.
11. Miscellaneous.
(a) Remedies. Any Person having rights under any provision of
this Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other
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security) for specific performance and for other injunctive relief in order to
enforce or prevent violation of the provisions of this Agreement.
(b) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement regarding the rights of the holders of
(i) LLC Registrable Securities or (ii) CSX Senior Registrable Securities may be
amended or waived only upon the prior written consent of the LLC and the holders
of a majority of the LLC Registrable Securities or CSX Senior Registrable
Securities, respectively; provided, that any amendments which modify the rights
of any class of holders of LLC Registrable Securities in a manner that is
prejudicial to such holders (relative to the other holders of LLC Registrable
Securities) cannot be effected without the consent of the holders of such LLC
Registrable Securities so adversely affected.
(c) Successors and Assigns. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto will bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(d) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(e) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
will constitute one and the same Agreement.
(f) Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
(g) GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
APPLICATION, CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC
LAWS OF THE STATE OF DELAWARE AND THE DELAWARE LIMITED LIABILITY COMPANY ACT,
DELAWARE CODE, TITLE 6, SECTIONS 18-101, ET. SEQ., AS IN EFFECT FROM TIME TO
TIME WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR
RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD
CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF
DELAWARE.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first above written.
AMERICAN COMMERCIAL LINES HOLDINGS
LLC
By: -------------------------------
Name:
Title:
VECTURA GROUP, INC.
By: -------------------------------
Name:
Title:
NATIONAL MARINE, INC.
By: -------------------------------
Name:
Title:
CSX XXXXX CORP.
By: -------------------------------
Name:
Title:
18
INVESTOR UNITHOLDER SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT OF
AMERICAN COMMERCIAL LINES HOLDINGS LLC
----------------------------------------
Xxxxxx Xxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxx
19
MANAGEMENT UNITHOLDER SIGNATURE PAGE TO
REGISTRATION RIGHTS AGREEMENT OF
AMERICAN COMMERCIAL LINES HOLDINGS LLC
----------------------------
Xxxxxxx X. Xxxxx
20
EXHIBIT A
ADDRESSES FOR NOTICES
MEMBERS
1. CSX Xxxxx Corp.
c/o CSX Corporation
One Xxxxx Center
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxx X. Xxxx
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxxxx X. Xxxxx, Esq.
2. Vectura Group, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
with copies to:
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx, Xx.
and
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
Schedule 1 - Page 1
21
3. National Marine, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: President
with a copy to:
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxx, Xx.
and
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
MANAGEMENT
Xxxxxxx Xxxxx
c/o American Commercial Lines Holdings LLC
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
INVESTORS
Schedule 1 - Page 2
