REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of ________, 1999, between
XXXXXXX CORPORATION, a Delaware corporation ("Parent"), on the one hand, and
Xxxxxxx X. Xxxx-Xxxxxx (the "Stockholder"), on the other hand.
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of
April 21, 1999 (the "Merger Agreement"), by and among Parent, H(2)O
Acquisition Corp., a Delaware corporation ("Merger Sub") and a wholly owned
subsidiary of Parent, and Xxxxxx Corporation, a Delaware corporation (the
"Company"), Merger Sub will merge (the "Merger") with and into the Company,
and pursuant thereto shares of Common Stock, par value $1.00 per share, of
the Company and shares of Class A Common Stock, par value $1.00 per share, of
the Company will be converted into shares of Common Stock, par value $.01 per
share, of Parent ("Common Stock"). Capitalized terms used herein but not
otherwise defined herein shall have the same meaning as in the Merger
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
1. REGISTRABLE SECURITIES. As used herein, "Registrable
Securities" shall mean: (A) the shares of Common Stock to be acquired by the
Stockholder at the effective time of the Merger (the "Effective Time")
pursuant to the Merger Agreement, and (B) any securities of Parent issued or
issuable with respect to any Common Stock referred to in subdivision (A) by
way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise. As to any particular Registrable Securities, once issued such
securities shall cease to be Registrable Securities when (x) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (the "Securities Act") and such securities
shall have been disposed of in accordance with such registration statement,
(y) they shall have been transferred pursuant to Rule 144 or Rule 145 (or any
successor provision) under the Securities Act or (z) they shall have ceased
to be outstanding.
2. REGISTRATION ON REQUEST. (a) REQUEST. During the period
commencing on the Effective Time and ending on the first anniversary of the
Effective Time (the "Registration Period"), the Stockholder shall have the
right on one occasion upon written request (the "Request") to request that
Parent effect the registration under the Securities Act of all or a part of
the Registrable Securities then owned by the Stockholder (but in any event
not less than an aggregate of 500,000 shares of Common Stock, as adjusted to
reflect any stock splits, combinations of shares, reclassifications or
comparable transactions, or such lesser number of shares as shall then
constitute all of the Registrable Securities then owned by the Stockholder
taking into account all Registrable Securities to be included in such
registration). Upon receipt of any such Request, Parent will use all
reasonable efforts (subject to Section 4(b)) to effect such registration of
the Registrable Securities which Parent has been so requested to register in
the Request within 60 days after delivery of the Registration Notice.
Parent may include in any such registration other securities for
sale for its own account or for the account of any other Person; PROVIDED
that, if the managing underwriter (if any)for the offering shall determine
that the number of shares proposed to be offered in such offering would be
reasonably likely to adversely affect such offering, then the securities to
be sold by the Stockholder shall be included in such registration before any
securities proposed to be sold for the account of Parent or any other Person.
(b) REGISTRATION STATEMENT FORM. Parent shall effect any
registration requested under this Section 2 by the filing of a registration
statement on such form as Parent may determine; PROVIDED that Parent shall
not be obligated to register any securities on a "shelf" registration
statement pursuant to Rule 415 under the Securities Act (or any successor
provisions of such Act) or otherwise to register securities on a continuous
or delayed basis.
(c) EXPENSES. The Stockholder shall bear all reasonably
documented out-of-pocket expenses incurred in connection with any
registration which may be requested under this Section 2, including all
registration, filing and New York Stock Exchange, Inc. fees, all fees and
expenses of complying with securities or blue sky laws, all printing fees and
expenses, messenger and delivery expenses, the fees and disbursements of
counsel for the stockholder and the expenses of any special audits or
"comfort" letters required by or incident to such performance and any fees,
commissions, discounts and disbursements of underwriters. Parent shall bear
the fees and expenses of Parent's counsel.
(d) SELECTION OF UNDERWRITERS. The lead managing underwriter
for any registration requested under this Section 2 effected by means of a
firm commitment underwriting shall be selected by Parent, and shall be
reasonably acceptable to the Stockholder.
3. REGISTRATION PROCEDURES. If Parent is required to seek to
effect the registration of Registrable Securities under the Securities Act as
provided in Section 2, Parent will:
(i) prepare and (within 30 days after the receipt of the Request)
file with the SEC the requisite registration statement to effect such
registration and use all reasonable efforts to cause such registration
statement to become effective, provided that before filing such
registration statement or any amendments thereto, Parent will furnish to
the counsel selected by the Stockholder copies of all such documents
proposed to be filed, which documents will be subject to the review of such
counsel before any such filing is made, and Parent will comply with any
reasonable request made by such counsel to make changes in any information
contained in such documents relating to the Stockholder;
(ii) prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be reasonably necessary to maintain the effectiveness of
such registration and to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
registration statement until the earliest of (A) the termination of this
Agreement pursuant to Section 15, (B) such time as all of such securities
have been disposed of and (C) the date which is 60 days after the date of
initial effectiveness of such registration statement;
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(iii) furnish to the Stockholder such number of conformed copies of
such registration statement and of each amendment and supplement thereto
(in each case including all exhibits), such number of copies of the
prospectus contained in such registration statements and any supplements
thereto and any other prospectus filed under Rule 424 under the Securities
Act, and such other documents, including documents incorporated by
reference, as the Stockholder may reasonably request;
(iv) use all reasonable efforts to register or qualify all
Registrable Securities registered pursuant to such registration statement
under such other securities or blue sky laws of such jurisdictions as the
Stockholder shall reasonably request, to keep such registration or
qualification in effect for so long as such registration statement remains
in effect, and take any other action which may be reasonably necessary or
advisable to enable the Stockholder to consummate the disposition in such
jurisdictions of the securities owned by the Stockholder, except that
Parent shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction wherein it would
not but for the requirements of this subdivision (iv) be obligated to be so
qualified, to be subject to taxation or to consent to general service of
process in any such jurisdiction;
(v) use all reasonable efforts to cause all 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 Stockholder to consummate the disposition of such Registrable
Securities;
(vi) if such registration includes an underwritten public offering,
furnish to the Stockholder a signed counterpart of (x) an opinion of
counsel for Parent, dated the date of the closing under the underwriting
agreement, and (y) a "comfort letter," dated the effective date of such
registration statement (and a supplement to such "comfort letter" dated the
date of the closing under the underwriting agreement), signed by the
independent public accountants who have certified Parent's financial
statements included in such registration statement, covering substantially
the same matters with respect to such registration statement (and the
prospectus included therein) and, in the case of the accountants' letter,
with respect to events subsequent to the date of such financial statements,
as are customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to the underwriters in underwritten public
offerings of securities and, in the case of the accountants' letter, such
other financial matters, as the Stockholder (or the underwriters, if any)
may reasonably request;
(vii) notify the Stockholder at any time when Parent is aware that a
prospectus relating to Registrable Securities is required to be delivered
under the Securities Act, promptly upon becoming aware of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and at the request of the
Stockholder (and subject to Section 4(b)(ii)) as promptly as reasonably
practicable prepare and furnish to
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the Stockholder a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall
not include 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 under
which they were made;
(viii) otherwise use all reasonable efforts to comply with the
Securities Act and the Exchange Act and with all applicable rules and
regulations of the SEC, and not file any amendment or supplement to such
registration statement or prospectus to which the Stockholder shall have
reasonably objected on the grounds that such amendment or supplement does
not comply in all material respects with the requirements of the Securities
Act;
(ix) provide a transfer agent and registrar for all Registrable
Securities covered by such registration statement not later than the
effective date of such registration statement; and
(x) use all reasonable efforts to list all Common Stock covered by
such registration statement on any securities exchange on which any of the
Common Stock is then listed.
Parent may require the Stockholder to furnish Parent such information
regarding the Stockholder and the distribution of such securities as Parent may
from time to time reasonably request in writing for the purpose of registering
the Registrable Securities pursuant to a Request hereunder.
The Stockholder agrees by acquisition of the Registrable Securities
that upon receipt of any notice from Parent of the happening of any event of the
kind described in subdivision (vii) of this Section 3, the Stockholder will
forthwith discontinue its disposition of Registrable Securities pursuant to the
registration statement relating to such Registrable Securities until the
Stockholder's receipt of the copies of the supplemented or amended prospectus
contemplated by subdivision (vii) of this Section 3 and, if so directed by
Parent, will deliver to Parent (at Parent's expense) all copies then in the
Stockholder's possession, other than permanent file copies, of the prospectus
relating to such Registrable Securities current at the time of receipt of such
notice. Any delay pursuant to this paragraph shall toll on a day for day basis
the running of the 60 day period referred to in Section 3(ii) hereof.
4. (a) REQUESTED UNDERWRITTEN OFFERINGS. If requested by the
underwriters for any underwritten offering of Registrable Securities by the
Stockholder under a registration requested pursuant to Section 2, Parent and the
Stockholder will enter into a customary underwriting agreement with such
underwriters for such offering, to contain such representations and warranties
and such other terms as are customarily contained in agreements of this type,
including, without limitation, indemnities to the effect and to the extent
provided in Section 6.
(b) POSTPONEMENT. (i) [RESERVED]
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(ii) Parent may postpone any registration which is requested
pursuant to Section 2 or delivery of a prospectus or supplement or amendment
pursuant to Section 3(vii) if it determines that in view of the advisability of
deferring public disclosure of material corporate developments or other
information, the disclosures required to be made pursuant thereto would not be
in the best interests of Parent at that time. In the event Parent makes any
such election, the Stockholder agrees to keep confidential the fact of such
election and any information provided by Parent in connection therewith. No
single postponement pursuant to this Section 4(b)(ii) of any registration which
is requested pursuant to Section 2 or delivery of a prospectus or supplement or
amendment pursuant to Section 3(vii) shall exceed 90 days and all such
postponements shall not exceed 180 days in the aggregate.
5. COVENANTS RELATING TO RULE 144/145. Parent will prepare and
file in a timely manner, information, documents and reports in compliance with
the Exchange Act so as to comply with the requirements of such Act and the rules
and regulations thereunder. If at any time Parent is not required to file
reports in compliance with either Section 13 or Section 15(d) of the Exchange
Act, Parent at its expense will forthwith, upon the written request of the
Stockholder, make available adequate current public information with respect to
Parent within the meaning of paragraph (c)(2) of Rule 144 under the Securities
Act.
6. INDEMNIFICATION. (a) Indemnification by Parent. In the
event of any registration of any Registrable Securities of Parent under the
Securities Act, Parent will indemnify and hold harmless the Stockholder, each
other Person who participates as an underwriter in the offering or sale of such
securities and each other Person who controls any such underwriter within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which the Stockholder or any such underwriter
or controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement under which such
Registrable Securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or 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, and Parent will reimburse the Stockholder and
each such underwriter and controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceedings; PROVIDED that Parent shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon (i) an untrue statement or alleged untrue statement or omission
or alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to Parent by
the Stockholder for use in the preparation thereof, (ii) the use of any
prospectus after such time as the obligation of Parent to keep the same
effective and current has expired, or (iii) the use of any prospectus after such
time as Parent has advised the Stockholder that the filing of a post-effective
amendment or supplement thereto is required, except such prospectus as so
amended or supplemented, and PROVIDED FURTHER that Parent shall not be liable to
any Person who participates as an underwriter in the offering or sale of
Registrable Securities or any other Person, if any, who
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controls such underwriter within the meaning of the Securities Act in any
such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of the matters
described in (i), (ii) or (iii) above or such Person's failure to send or
give a copy of the final prospectus or supplement to the Persons asserting an
untrue statement or alleged untrue statement or omission or alleged omission
at or prior to the written confirmation of the sale of Registrable Securities
to such Person if such statement or omission was corrected in such final
prospectus or supplement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the
Stockholder or any such underwriter or controlling person and shall survive
the transfer of such securities by the Stockholder.
(b) INDEMNIFICATION BY THE STOCKHOLDER. Parent may require, as
a condition to including any Registrable Securities of the Stockholder in any
registration statement filed pursuant to Section 2, that Parent shall have
received an undertaking reasonably satisfactory to it from the Stockholder to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in subdivision (a) of this Section 6) Parent, each director and officer
of Parent, and each other Person, if any, who controls Parent, within the
meaning of the Securities Act, with respect to any untrue statement or
alleged untrue statement of a material fact in or omission or alleged
omission to state a material fact from such registration statement, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, if such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to Parent by the
Stockholder for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement PROVIDED, HOWEVER, that the Stockholder shall not be liable to the
extent that the losses, liabilities or expenses arise out of or are based
upon (i) the use by Parent of any prospectus after such time as the
obligation of Parent to keep the same effective and current has expired or
(ii) the use by Parent of any prospectus after such time as the Stockholder
has advised Parent that the filing of a post-effective amendment or
supplement thereto is required with respect to any information contained in
such prospectus concerning the Stockholder, except such prospectus as so
amended or supplemented. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of Parent, or any
such director, officer, or controlling person and shall survive the transfer
of such securities by the Stockholder.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section
6, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action, PROVIDED that the failure of any indemnified
party to give notice as provided herein shall not relieve the indemnifying
party of its obligations under the preceding subdivisions of this Section 6,
except to the extent that the indemnifying party is actually prejudiced by
such failure to give notice. In case any such action is brought against an
indemnified party, unless a conflict of interest between such indemnified and
indemnifying parties exists in respect of such claim, the indemnifying party
shall be entitled to participate in and to assume the defense thereof,
jointly with any other indemnifying party similarly notified to the extent
that it may wish, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party
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shall not be liable to the indemnified party for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof
other than reasonable costs of investigation.
(d) CONTRIBUTION. If for any reason the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party, then
the indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of the expense, loss, damage or liability, (i)
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other
(determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission relates to
information supplied by the indemnifying party or the indemnified party and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission), or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law or provides a lesser sum to the indemnified party than the amount
hereinafter calculated, in the proportion as is appropriate to reflect not
only the relative fault of the indemnifying party and the indemnified party,
but also the relative benefits received by the indemnifying party on the one
hand and the indemnified party on the other, as well as any other relevant
equitable considerations. No indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any indemnifying party who was not
guilty of such fraudulent misrepresentation.
7. NOTICES, ETC. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement shall
be in writing and shall be deemed to have been duly given to any party when
delivered personally (by courier service or otherwise), when delivered by
telecopy if receipt is confirmed by return telecopy, or five days after being
mailed by registered or certified mail, return receipt requested, in each
case to the applicable addresses set forth below:
If to Parent:
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
If to the Stockholder:
with a copy to:
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or to such other address as such party shall have designated by
notice so given to each other party.
8. AMENDMENTS, WAIVERS, ETC. This Agreement may not be
amended, supplemented, waived or otherwise modified except by an instrument
in writing signed by the party against whom enforcement is sought. The
failure of any party to exercise any right, power or remedy provided under
this Agreement or otherwise available in respect hereof at law or in equity,
or to insist upon compliance by any other party with its obligations
hereunder, and any custom or practice of the parties at variance with the
terms hereof, shall not constitute a waiver by such party of its right to
exercise any such or other right, power or remedy or to demand such
compliance.
9. ENTIRE AGREEMENT. This Agreement embodies the entire
agreement and understanding between the parties relating to the subject
matter hereof and supersedes all prior agreements and understandings relating
to such subject matter.
10. SEVERABILITY. If any term of this Agreement or the
application thereof to any party or circumstance shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such term to the other parties or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by
applicable law.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the parties and
their respective successors and assigns; PROVIDED that neither the rights nor
the obligations of any party may be assigned or delegated without the prior
written consent of the other parties.
12. GOVERNING LAW. This Agreement and all disputes hereunder
shall be governed by and construed and enforced in accordance with the laws
of the State of Delaware.
13. NAME, CAPTIONS. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall
not affect the interpretation or construction hereof.
14. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one instrument. Each counterpart may consist
of a number of copies each signed by less than all, but together signed by
all, the parties hereto.
15. TERMINATION. This Agreement shall terminate and be of no
further force and effect upon the later of the expiration of the Registration
Period and the tenth day after effectiveness of the registration statement
filed pursuant to the Request made during the Registration Period; PROVIDED
that, notwithstanding this Section 15, the provisions of Section 6 shall
survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of
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the date first above written.
XXXXXXX CORPORATION.
By: _____________________________
Name:
Title:
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Name: Xxxxxxx X. Xxxx-Xxxxxx
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