AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
February 22, 1996
To each of the Purchasers named in Schedule I to the Amended and Restated
Note and Warrant Purchase Agreement of even date herewith and those by the
terms thereof permitted to join therein (the "Purchasers")
RECITALS
WHEREAS: The Company and certain of the Purchasers are parties to
Registration Rights Agreement, dated as of December 22, 1995
(the "Existing Registration Rights Agreement");
WHEREAS: The parties to the Existing Registration Rights Agreement desire
that such agreement be amended and restated as set forth in this
Agreement;
WHEREAS: The Purchasers have purchased or may purchase from the Company
Warrants to purchase shares of the Company's Common Stock
pursuant to the Purchase Agreement; and
WHEREAS: As a condition to such purchase, the Company has agreed to grant
to the Purchasers registration rights with respect to certain
securities of the Company held by the Purchasers.
AGREEMENT
NOW, THEREFORE, it is agreed that (i) the Existing Registration
Rights Agreement is hereby amended and restated, and (ii) further as
follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
"Agreement" shall mean this Amended and Restated Registration
Rights Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Commission" shall mean the Securities and Exchange Commission,
or any other federal agency at the time administering the Securities
Act.
"Common Stock" shall mean the Common Stock, no par value per
share, of the Company, as constituted as of the date of this
Agreement.
"Company" shall mean Xxxxxx Co., Inc., a Wisconsin corporation.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in
effect at the time.
"Purchase Agreement" shall mean the Note and Warrant Purchase
Agreement dated as of the date hereof.
"Registration Expenses" shall mean the expenses so described in
Section 7.
"Registerable Stock" shall mean the Warrant Shares and any
Common Stock held as of the date hereof or thereafter by the
Purchasers, but only so long as such shares continue to be Restricted
Stock. Any such share shall continue to be Restricted Stock until
such time as such share (i) has been effectively registered under the
Securities Act and disposed of in accordance with the Registration
Statement covering it, or (ii) has been publicly sold pursuant to
Rule 144 (or any similar provision then in force) under the
Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in
effect at the time.
"Selling Expenses" shall mean the expenses so described in
Section 7.
"Warrant Shares" shall mean shares of Common Stock issued upon
exercise of the Warrants.
"Warrants" shall mean the warrants granted to the Purchasers to
purchase shares of Common Stock.
2. Restrictive Legend. Each certificate representing shares of
Registerable Stock shall, except as otherwise provided in this Section 2,
be stamped or otherwise imprinted with a legend substantially in the
following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 AND MAY NOT BE TRANSFERRED OR OTHERWISE DISPOSED OF
UNLESS IT HAS BEEN REGISTERED UNDER THAT ACT OR AN EXEMPTION
FROM REGISTRATION IS AVAILABLE."
A certificate shall not bear such legend if in the opinion of counsel
satisfactory to the Company the securities being sold thereby may be
publicly sold without registration under the Securities Act.
3. Required Registration. (a) At any time beginning six months
after a registration statement covering a public offering of securities of
the Company under the Securities Act shall have become effective, the
holders of Registerable Stock constituting at least 25% of the total
shares of Registerable Stock then outstanding may request the Company to
register under the Securities Act all or any portion of the shares of
Registerable Stock held by such requesting holder or holders for sale in
the manner specified in such notice. In addition, at any time following
the second anniversary of the date of this Agreement, if a registration
statement on Form S-1 has not yet become effective, the holders of
Registerable Stock constituting more than 50% of the total shares of
Registerable Stock then outstanding may request the Company to register
under the Securities Act all or any portion of the shares of Registerable
Stock held by such requesting holder or holders for sale in the manner
specified in such notice. Notwithstanding anything to the contrary
contained herein, no request may be made under this Section 3 within 120
days after the effective date of a registration statement filed by the
Company covering a firm commitment underwritten public offering; provided,
however, that this limitation shall not be utilized by the Company to deny
the request of holders of Registerable Stock on more than one occasion in
any twelve month period.
(b) Following receipt of any notice under this Section 3, the
Company shall immediately notify all holders of Registerable Stock from
whom notice has not been received and shall use its best efforts to
register under the Securities Act, for public sale in accordance with the
method of disposition specified in such notice from requesting holders,
the number of shares of Registerable Stock specified in such notice (and
in all notices received by the Company from other holders within 30 days
after the giving of such notice by the Company). The Company shall be
obligated to register Registerable Stock pursuant to this Section 3 on two
occasions only; provided, however, that such obligation shall be deemed
satisfied only when a registration statement covering all shares of
Registerable Stock specified in notices received as aforesaid, for sale in
accordance with the method of disposition specified by the requesting
holders, shall have become effective and, if such method of disposition is
a firm commitment underwritten public offering, all such shares shall have
been sold pursuant thereto.
(c) The Company shall be entitled to include in any
registration statement referred to in this Section 3, for sale in
accordance with the method of disposition specified by the requesting
holders, shares of Common Stock to be sold by the Company for its own
account or for sale by others, except as and to the extent that, in the
opinion of the managing underwriter (if such method of disposition shall
be an underwritten public offering), such inclusion would adversely affect
the marketing of the Registerable Stock to be sold. Except for
registration statements on Form X-0, X-0 or any successor thereto, the
Company will not file with the Commission any other registration statement
with respect to its Common Stock, whether for its own account or that of
other stockholders, from the date of receipt of a notice from requesting
holders pursuant to this Section 3 until the completion of the period of
distribution of the registration contemplated thereby.
4. Incidental Registration. If the Company at any time (other than
pursuant to Section 3 or Section 5) proposes to register any of its
securities under the Securities Act for sale to the public, whether for
its own account or for the account of other security holders or both
(except with respect to registration statements on Forms X-0, X-0 or
another form not available for registering the Registerable Stock for sale
to the public), each such time it will give written notice to all holders
of outstanding Registerable Stock of its intention so to do. Upon the
written request of any such holder, received by the Company within 30 days
after the giving of any such notice by the Company, to register any of its
Registerable Stock (which request shall state the intended method of
disposition thereof), the Company will use its best efforts to cause the
Registerable Stock as to which registration shall have been so requested
to be included in the securities to be covered by the registration
statement proposed to be filed by the Company, all to the extent requisite
to permit the sale or other disposition by the holder (in accordance with
its written request) of such Registerable Stock so registered. In the
event that any registration pursuant to this Section 4 shall be, in whole
or in part, an underwritten public offering of Common Stock, the number of
shares of Registerable Stock to be included in such an underwriting may be
reduced (pro rata among the requesting holders based upon the number of
shares of Registerable Stock owned by such holders) if and to the extent
that the managing underwriter shall be of the opinion that such inclusion
would adversely affect the marketing of the securities to be sold by the
Company therein, provided, however, that such number of shares of
Registerable Stock shall not be reduced if any shares are to be included
in such underwriting for the account of any person other than the Company
or requesting holders of Registerable Stock; provided, further, however,
that in no event may less than twenty (20%) percent of the total number of
shares of Common Stock to be included in such underwriting be made
available for shares of Registerable Stock. Notwithstanding the foregoing
provisions, the Company may withdraw any registration statement referred
to in this Section 4 without thereby incurring any liability to the
holders of Registerable Stock.
5. Registration on Form S-3. If at any time (i) a holder or
holders of Registerable Stock request that the Company file a registration
statement on Form S-3 or any successor thereto for a public offering of
all or any portion of the shares of Registerable Stock held by such
requesting holder or holders, the reasonably anticipated aggregate price
to the public of which would exceed $500,000, and (ii) the Company is a
registrant entitled to use Form S-3 or any successor thereto to register
such shares, then the Company shall use its best efforts to register under
the Securities Act on Form S-3 or any successor thereto, for public sale
in accordance with the method of disposition specified in such notice, the
number of shares of Registerable Stock specified in such notice. Whenever
the Company is required by this Section 5 to use its best efforts to
effect the registration of Registerable Stock, each of the procedures and
requirements of Section 3 (including but not limited to the requirement
that the Company notify all holders of Registerable Stock from whom notice
has not been received and provide them with the opportunity to participate
in the offering) shall apply to such registration, provided, however, that
(i) the Company shall be obligated to register Registerable Stock pursuant
to this Section 5 on one occasion per calendar year only, (ii) the
requirements contained in the first sentence of Section 3(a) shall not
apply to any registration on Form S-3 which may be requested and obtained
under this Section 5 and (iii) the Company shall not be obligated to
register Registerable Stock pursuant to this Section 5, if in the opinion
of counsel acceptable to the Company and the holders of the Registerable
Stock the shares of Registerable Stock intended to be included in a
registration on Form S-3 pursuant to the terms of this Section 5 are
saleable under Rule 144 of the Securities Act within a period of four
months from the date the holders give notice of their intention to
register shares of Registerable Stock pursuant to this Section 5.
6. Registration Procedures. If and whenever the Company is
required by the provisions of Sections 3, 4 or 5 to use its best efforts
to effect the registration of any shares of Registerable Stock under the
Securities Act, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration
statement (which, in the case of an underwritten public offering
pursuant to Section 3, shall be on Form S-1 or other form of general
applicability satisfactory to the managing underwriter selected as
therein provided) with respect to such securities and use its best
efforts to cause such registration statement to become and remain
effective for the period of the distribution contemplated thereby
(determined as hereinafter provided);
(b) prepare and file with the Commission 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 the period specified in paragraph (a) above
and comply with the provisions of the Securities Act with respect to
the disposition of all Registerable Stock covered by such
registration statement in accordance with the sellers' intended
method of disposition set forth in such registration statement for
such period;
(c) furnish to each seller of Registerable Stock and to each
underwriter such number of copies of the registration statement and
the prospectus included therein (including each preliminary
prospectus) as such persons reasonably may request in order to
facilitate the public sale or other disposition of the Registerable
Stock covered by such registration statement;
(d) use its best efforts to register or qualify the
Registerable Stock covered by such registration statement under the
securities or "blue sky" laws of such jurisdictions as the sellers of
Registerable Stock or, in the case of an underwritten public
offering, the managing underwriter reasonably shall request;
provided, however, that the Company shall not for any such purpose be
required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to
consent to general service of process in any such jurisdiction;
(e) use its best efforts to list the Registerable Stock covered
by such registration statement with any securities exchange on which
the Common Stock of the Company is then listed;
(f) immediately notify each seller of Registerable Stock and
each underwriter under such registration statement, at any time when
a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event of which the Company
has knowledge as a result of which the prospectus contained in such
registration statement, as then in effect, includes an untrue
statement of a material fact or omits 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;
(g) if the offering is underwritten and at the request of any
seller of Registerable Stock, use its best efforts to furnish on the
date that Registerable Stock is delivered to the underwriters for
sale pursuant to such registration: (i) an opinion dated such date of
counsel representing the Company for the purposes of such
registration, addressed to the underwriters and to such seller,
stating that such registration statement has become effective under
the Securities Act and that (A) to the best knowledge of such
counsel, no stop order suspending the effectiveness thereof has been
issued and no proceedings for that purpose have been instituted or
are pending or contemplated under the Securities Act, (B) the
registration statement, the related prospectus and each amendment or
supplement thereof comply as to form in all material respects with
the requirements of the Securities Act (except that such counsel need
not express any opinion as to financial statements or other financial
data contained therein) and (C) to such other effects as reasonably
may be requested by counsel for the underwriters or by such seller or
its counsel and (ii) a letter dated such date from the independent
public accountants retained by the Company, addressed to the
underwriters and to such seller, stating that they are independent
public accountants within the meaning of the Securities Act and that,
in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or
any amendment or supplement thereof, comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act, and such letter shall additionally cover such other
financial matters (including information as to the period ending no
more than five business days prior to the date of such letter) with
respect to such registration as such underwriters reasonably may
request; and
(h) make available for inspection by each seller of
Registerable Stock, any underwriter participating in any distribution
pursuant to such registration statement, and any attorney, accountant
or other agent retained by such seller or underwriter, all financial
and other records, pertinent corporate documents and properties of
the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with
such registration statement.
For purposes of Section 6(a) and 7(b) and of Section 3(c), the period
of distribution of Registerable Stock in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has
completed the distribution of all securities purchased by it, and the
period of distribution of Registerable Stock in any other registration
shall be deemed to extend until the earlier of the sale of all
Registerable Stock covered thereby and 120 days after the effective date
thereof.
In connection with each registration hereunder, the sellers of
Registerable Stock will furnish to the Company in writing such information
with respect to themselves and the proposed distribution by them as
reasonably shall be necessary in order to assure compliance with federal
and applicable state securities laws.
In connection with each registration pursuant to Sections 3, 4 or 5
covering an underwritten public offering, the Company and each seller
agree to enter into a written agreement with the managing underwriter
selected in the manner herein provided in such form and containing such
provisions as are customary in the securities business for such an
arrangement between such underwriter and companies of the Company's size
and investment stature.
7. Expenses. All expenses incurred by the Company in complying
with Sections 3, 4 and 5, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees and expenses
(including counsel fees) incurred in connection with complying with state
securities or "blue sky" laws, fees of the National Association of
Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars, costs of insurance and reasonable fees and disbursements of
one counsel for the sellers of Registerable Stock, but excluding any
Selling Expenses, are called "Registration Expenses". All underwriting
discounts and selling commissions applicable to the sale of Registerable
Stock are called "Selling Expenses".
The Company will pay all Registration Expenses in connection with
each registration statement under Sections 3 and 4 and all Registration
Expenses in connection with one registration statement under Section 5.
All Selling Expenses in connection with each registration statement under
Sections 3, 4 or 5 shall be borne by the participating sellers in
proportion to the number of shares sold by each, or by such participating
sellers other than the Company (except to the extent the Company shall be
a seller) as they may agree.
8. Indemnification and Contribution. (a) In the event of a
registration of any of the Registerable Stock under the Securities Act
pursuant to Sections 3, 4 or 5, the Company will indemnify and hold
harmless each seller of such Registerable Stock thereunder, each
underwriter of such Registerable Stock thereunder and each other person,
if any, who controls such seller or underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which such seller, underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration statement
under which such Registerable Stock was registered under the Securities
Act pursuant to Sections 3, 4 or 5, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, or
arise out of or are based upon the 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 will reimburse each such
seller, each such underwriter and each such controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such
case if and to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with
information furnished by any such seller, any such underwriter or any such
controlling person in writing specifically for use in such registration
statement or prospectus.
(b) In the event of a registration of any of the Registerable
Stock under the Securities Act pursuant to Sections 3, 4 or 5, each seller
of such Registerable Stock thereunder, severally and not jointly, will
indemnify and hold harmless the Company, each person, if any, who controls
the Company within the meaning of the Securities Act, each officer of the
Company who signs the registration statement, each director of the
Company, each underwriter and each person who controls any underwriter
within the meaning of the Securities Act, against all losses, claims,
damages or liabilities, joint or several, to which the Company or such
officer, director, underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions 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
Registerable Stock was registered under the Securities Act pursuant to
Sections 3, 4, or 5, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of
or are based upon the 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 will reimburse the Company and each
such officer, director, underwriter and controlling person for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that such seller will be liable hereunder in
any such case if and only to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and
in conformity with information pertaining to such seller, as such,
furnished in writing to the Company by such seller specifically for use in
such registration statement or prospectus; provided, further, that the
liability of each seller hereunder shall be limited to the proportion of
any such loss, claim, damage, liability or expense which is equal to the
proportion that the public offering price of the shares sold by such
seller under such registration statement bears to the total public
offering price of all securities sold thereunder, but not in any event to
exceed the proceeds received by such seller from the sale of Registerable
Stock covered by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the indemnifying party
hereunder, notify the indemnifying party in writing thereof, but the
omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to such indemnified party other than under
this Section 8 and shall only relieve it from any liability which it may
have to such indemnified party under this Section 8 if and to the extent
the indemnifying party is prejudiced by such omission. In case any such
action shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate in and, to the extent it shall wish, to
assume and undertake the defense thereof 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
and undertake the defense thereof, the indemnifying party shall not be
liable to such indemnified party under this Section 8 for any legal
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation and
of liaison with counsel so selected; provided, however, that, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party
or if the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, the indemnified
party shall have the right to select a separate counsel and to assume such
legal defenses and otherwise to participate in the defense of such action,
with the expenses and fees of such separate counsel and other expenses
related to such participation to be reimbursed by the indemnifying party
as incurred. No indemnifying party, in defense of any such action, shall,
except with the consent of each indemnified party, consent to the entry of
any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving, by the claimant or plaintiff, to
such indemnified party of a release from all liability in respect to such
action.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i)
any holder of Registerable Stock exercising rights under this Agreement,
or any controlling person of any such holder, makes a claim for
indemnification pursuant to this Section 8 but it is judicially determined
(by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in
such case notwithstanding the fact that this Section 8 provides for
indemnification in such case, or (ii) contribution under the Securities
Act may be required on the part of any such selling holder or any such
controlling person in circumstances for which indemnification is provided
under this Section 8; then, and in each such case, the Company and such
holder will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others)
in such proportion so that such holder is responsible for the portion
represented by the percentage that the public offering price of its
Registerable Stock offered by the registration statement bears to the
public offering price of all securities offered by such registration
statement, and the Company is responsible for the remaining portion;
provided, however, that, in any such case, (A) no such holder will be
required to contribute any amount in excess of the public offering price
of all such Registerable Stock offered by it pursuant to such registration
statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) will be entitled to contribution from any person or entity who was
not guilty of such fraudulent misrepresentation.
9. Changes in Common Stock. If, and as often as, there is any
change in the Common Stock by way of a stock split, stock dividend,
combination or reclassification, or through a merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof so that the rights and
privileges granted hereby shall continue with respect to the Common Stock
as so changed.
10. Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may at
any time permit the sale of the Registerable Stock to the public without
registration, at all times after 90 days after any registration statement
covering a public offering of securities of the Company under the
Securities Act shall have become effective, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company
under the Securities Act and the Exchange Act; and
(c) furnish to each holder of Registerable Stock forthwith upon
request a written statement by the Company as to its compliance with
the reporting requirements of such Rule 144 and of the Securities Act
and the Exchange Act, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so filed
by the Company as such holder may reasonably request in availing
itself of any rule or regulation of the Commission allowing such
holder to sell any Registerable Stock without registration.
11. Representations and Warranties of the Company. The Company
represents and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement
by the Company have been duly authorized by all requisite corporate
action and will not violate any provision of law, any order of any
court or other agency of government, the Certificate of Incorporation
or By-laws of the Company or any provision of any indenture,
agreement or other instrument to which it or any or its properties or
assets is bound, conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or result in the creation or
imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of
the Company, enforceable in accordance with its terms, subject to (i)
applicable bankruptcy, insolvency, reorganization and moratorium laws
and other laws of general application affecting enforcement of
creditors' rights generally and (ii) the availability of equitable
remedies as such remedies may be limited by equitable principles of
general applicability (regardless of whether enforcement is sought in
a proceeding in equity or at law).
12. Miscellaneous. (a) All covenants and agreements contained in
this Agreement by or on behalf of any of the parties hereto shall bind and
inure to the benefit of the respective successors and assigns of the
parties hereto (including without limitation transferees of any
Registerable Stock), whether so expressed or not; provided, however, that
registration rights conferred herein on the holders of Registerable Stock
shall only inure to the benefit of a transferee of Registerable Stock if
(i) there is transferred to such transferee at least 20% of the total
shares of Registerable Stock originally issued pursuant to the Purchase
Agreement applicable to such holder, to the direct or indirect transferor
of such transferee or (ii) such transferee is a partner, shareholder or
affiliate of a party hereto.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by certified or
registered mail, return receipt requested, postage pre-paid, or telexed,
in the case of non-U.S. residents, addressed as follows:
if to the Company or any other party hereto, at the address of
such party set forth in the Purchase Agreement applicable to such
party;
if to any subsequent holder of Registerable Shares, to it at
such address as may have been furnished to the Company in writing by
such holder;
or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder of
Registerable Stock) or to the holders of Registerable Stock (in the case
of the Company) in accordance with the provisions of this paragraph.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
(d) This Agreement may not be amended or modified, and no
provision hereof may be waived, without the written consent of the Company
and the holders of at least two-thirds of the then outstanding shares of
Registerable Stock. The Company may not, without the prior written
consent of holders of at least two- thirds of the then outstanding shares
of Registerable Stock, grant any rights to any persons to register shares
of capital stock or securities of the Company if such rights could
reasonably be expected to conflict with, or be on a parity with the rights
of the holders of Registerable Stock granted pursuant to this Agreement.
(e) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(f) The obligations of the Company to register shares of
Registerable Stock under Sections 3, 4 or 5 shall terminate on the tenth
anniversary of the date of this Agreement, unless such obligations
terminate earlier in accordance with the terms of this Agreement.
(g) If requested in writing by the underwriters for the initial
underwritten public offering of securities of the Company, each holder of
Registerable Stock who is a party to this Agreement shall agree not to
sell publicly any shares of Registerable Stock or any other shares of
Common Stock (other than shares of Registerable Stock or other shares of
Common Stock being registered in such offering), without the consent of
such underwriters, for a period of not more than 180 days following the
effective date of the registration statement relating to such offering;
provided, however, that all persons entitled to registration rights with
respect to shares of Common Stock who are not parties to this Agreement,
all other persons selling shares of Common Stock in such offering and all
executive officers and directors of the Company shall also have agreed not
to sell publicly their Common Stock under the circumstances and pursuant
to the terms set forth in this Section 13(g).
(h) Notwithstanding the provisions of Section 6(a), the
Company's obligation to file a registration statement, or cause such
registration statement to become and remain effective, shall be suspended
for a period not to exceed 90 days in any 24-month period if there exists
at the time material non-public information relating to the Company which,
in the reasonable opinion of the Company, should not be disclosed.
(i) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any
manner affect or render illegal, invalid or unenforceable any other
provision of this Agreement, and this Agreement shall be carried out as if
any such illegal, invalid or unenforceable provision were not contained
herein.
(j) Except as otherwise provided herein, neither this Agreement
nor any provision hereof can be modified, changed, discharged or
terminated except by an instrument in writing signed by the party against
whom the enforcement of any modification, change, discharge or termination
is sought or by the agreement of holders of more than 50% of all shares of
Registrable Stock held by the Stockholders; provided, however, that no
modification or amendment shall be effective to reduce the percentage of
the shares of shares of Registrable Stock the consent of the holders of
which is required under this Section 12(j).
(Signature page to Registration Rights Agreement)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be effective as of this ___ day of February, 1996.
XXXXXX CO., INC.
By: /s/ Xxxxx X. Xxxxxx
Title: Xxxxx X. Xxxxxx
XXXXX XXXXXXXX, LTD.
By: /s/ Xxxxxxxx X. Xxxxxxxx
Name: Bardford X. Xxxxxxxx
ING EQUITY PARTNERS, L.P. I
By: Lexington Partners, L.P.,
its General Partner
By: Lexington Partners, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxx
Title:
STATE STREET RESEARCH
HIGH INCOME FUND
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
STATE STREET RESEARCH MANAGED ASSETS
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
XXXXXXXX PRINCIPLE MATURITY TRUST
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
SALOMON BROTHERS INC.
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
WYNNEFIELD PARTNERS
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
C.C. PARTNERS, LTD.
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
EBI INDEMNITY COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
SECURITY REINSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
GUARANTY NATIONAL INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
CANYON PARTNERS INCORPORATED
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
NEW GENERATION LIMITED PARTNERSHIP
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
NEW GENERATION LIMITED INSTITUTIONAL
LIMITED PARTNERSHIP
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
XXXXXXX FAMILY PARTNERS
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
PRUDENTIAL SECURITIES
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
XXXXXX XXXXXXX & CO.
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
/s/ Xxxxxx Xxxx
/s/ Xxx Xxxxxx
/s/ Xxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx Xxxxx
/s/ Xxxxxx X. Xxxx
/s/ Xxxxxxxx Xxxxxxx
