EXECUTION VERSION
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WARRANT
REGISTRATION RIGHTS AGREEMENT
XXXXXXX CORPORATION
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140,000 Warrants to Purchase Shares of Common Stock
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Dated as of November 23, 1999
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XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
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This Warrant Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of November 23, 1999, between Xxxxxxx Corporation, a Minnesota
corporation (the "ISSUER" or the "COMPANY"), and Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation (the "INITIAL PURCHASER").
The Issuer and the Initial Purchaser have entered into a Purchase
Agreement, dated November 18, 1999 (the "PURCHASE AGREEMENT"), the Guarantors
(as defined in the Purchase Agreement) and Viking Merger Sub, Inc. ("VIKING").
The Purchase Agreement provides for the offering by the Company of 140,000
Units, each consisting of $1,000 principal amount at maturity of the Company's
12% Senior Subordinated Notes due 2009 (the "NOTES") and one warrant initially
representing the right to purchase 1.22987 Common Shares, par value $0.01 per
share, of Viking ("VIKING COMMON SHARES").
Pursuant to the Purchase Agreement, Viking has entered into a Warrant
Agreement (the "WARRANT AGREEMENT") with Norwest Bank Minnesota, N.A., as
warrant agent (the "WARRANT AGENT") providing for the issuance of 140,000
warrants (the "WARRANTS") each initially representing the right to purchase
1.22987 shares of Viking Common Shares.
The Company and Viking have entered into an Agreement and Plan of Merger
dated as of July 14, 1999 pursuant to which Viking will merger (the "MERGER")
with and into the Company. Upon consummation of the Merger, each Viking Common
Share will become one share of Class B Common Stock of the Company, par value
$0.01 per share, and each Warrant by its terms will become exercisable to
initially purchase 1.22987 shares of such Class B Common Stock of the Company
and the Company will succeed to all obligations of Viking under the Warrant
Agreement and with respect to the Warrants. In addition, the Company will enter
into a Warrant Assumption Agreement in accordance with Section 8(l) of the
Warrant Agreement providing for its assumption of the obligations of Viking
thereunder.
In order to induce the Initial Purchaser to purchase the Warrants, the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Initial Purchaser set forth in Section 9 of the Purchase
Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meaning assigned to them in the Warrant Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144.
BLACK OUT NOTICE: As defined in Section 4(b) hereof.
BLACK OUT PERIOD: As defined in Section 3(a) hereof.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
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EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXPIRATION DATE: 5:00 p.m. New York City time on May 1, 2009.
HOLDERS: As defined in Section 2 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
REGISTRATION STATEMENT: Any registration statement of the Issuer
relating to the registration for resale of Transfer Restricted Securities
that is filed pursuant to the provisions of this Agreement and including the
Prospectus included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material
incorporated by reference therein.
RULE 144: Rule 144 promulgated under the Act.
TRANSFER RESTRICTED SECURITIES: (a) Each Warrant and Warrant Share held by
an Affiliate of the Issuer and (b) each other Warrant and Warrant Share until
the earlier to occur of (i) the date on which such Warrant or Warrant Share
(other than any Warrant Share issued upon exercise of a Warrant in accordance
with a Registration Statement) has been disposed of in accordance with a
Registration Statement and (ii) the date on which such Warrant or Warrant Share
(or the related Warrant) is distributed to the public pursuant to Rule 144 under
the Act.
2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "HOLDER") whenever such Person is the holder of record of Transfer Restricted
Securities.
3. SHELF REGISTRATION
(a) SHELF REGISTRATION. The Issuer shall prepare and cause to be
filed with the Commission on or before 120 days from the Closing Date pursuant
to Rule 415 under the Securities Act a Registration Statement on the appropriate
form relating to resales of Transfer Restricted Securities by the Holders
thereof and the issuance of Warrant Shares upon the exercise of the Warrants
sold pursuant to such Registration Statement. The Company shall use its
reasonable best efforts to cause the Registration Statement to be declared
effective by the Commission on or before 180 days after the Closing Date.
To the extent necessary to ensure that the Registration Statement is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 3(a), the Issuer shall use its
reasonable best efforts to keep any Registration Statement required by this
Section 3(a) continuously effective, supplemented, amended and current as
required by and subject to the provisions of Section 4(a) hereof and in
conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, until
the later of (i) the second anniversary of the effective date of the
Registration Statement and (ii) the earlier of (A) the Expiration Date and (B)
the first date as of which all Warrants have been exercised by the Holders
thereof; PROVIDED that such obligation shall expire before such date if the
Issuer delivers to the Warrant Agent a written opinion of counsel to the Issuer
(which opinion of counsel shall be satisfactory to the Initial Purchaser) that
all Holders (other than Affiliates of the Issuer) of Warrants and Warrant Shares
may resell the
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Warrants and the Warrant Shares without registration under the Act and
without restriction as to the manner, timing or volume of any such sale; and
PROVIDED, FURTHER, that notwithstanding the foregoing, any Affiliate of the
Issuer may, with notice to the Issuer, require the Issuer to keep the
Registration Statement continuously effective for resales by such Affiliate
for so long as such Affiliate holds Warrants or Warrant Shares, including as
a result of any market-making activities or other trading activities of such
Affiliate. Notwithstanding the foregoing, the Issuer shall not be required
to amend or supplement the Registration Statement, any related prospectus or
any document incorporated therein by reference, for a period (a "BLACK OUT
PERIOD") not to exceed, for so long as this Agreement is in effect, an
aggregate of 60 days in any calendar year, in the event that (i) an event
occurs and is continuing as a result of which the Registration Statement, any
related prospectus or any document incorporated therein by reference as then
amended or supplemented would, in the Issuer's good faith judgment, contain
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (ii)(A) the
Issuer determines in its good faith judgment that the disclosure of such
event at such time would have a material adverse effect on the business,
operations or prospects of the Issuer or (B) the disclosure otherwise relates
to a material business transaction which has not yet been publicly disclosed;
PROVIDED that such Black Out Period shall be extended for any period, not to
exceed an aggregate of 30 days in any calendar year, during which the
Commission is reviewing any proposed amendment or supplement to the
Registration Statement, any related prospectus or any document incorporated
therein by reference which has been filed by the Issuer; and PROVIDED,
FURTHER, that no Black Out Period may be in effect during the three months
prior to the Expiration Date.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH
THE REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Registration Statement
pursuant to this Agreement unless and until such Holder furnishes to the Issuer
in writing, within 20 days after receipt of a request therefor, the information
specified in Item 507 or 508 of Regulation S-K, as applicable, of the Act for
use in connection with any Registration Statement or Prospectus or preliminary
Prospectus included therein. Each selling Holder agrees to promptly furnish
additional information required to be disclosed in order to make the information
previously furnished to the Issuer by such Holder not materially misleading.
4. REGISTRATION PROCEDURES
(a) In connection with the Registration Statement and any related
Prospectus required by this Agreement, the Issuer shall:
(i) Comply with all the provisions of this Section
4(a) and use its reasonable best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof (as
indicated in the information furnished to the Issuer pursuant to Section
3(b) hereof), and pursuant thereto the Issuer will prepare and file with
the Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale
of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof within the time periods and
otherwise in accordance with the provisions hereof;
(ii) use its reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 of this
Agreement. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain
an untrue
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statement of material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the period
required by this Agreement, the Issuer shall, subject to Section 3(a), file
promptly an appropriate amendment to such Registration Statement or a
supplement to the Prospectus, as applicable, curing such defect, and, in
the case of an amendment, use its reasonable best efforts to cause such
amendment to be declared effective as soon as practicable;
(iii) prepare and file with the Commission such
amendments and post-effective amendments to the applicable Registration
Statement as may be necessary to keep such Registration Statement effective
for the applicable period set forth in Section 3; cause the Prospectus to
be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to comply
fully with Rules 424, 430A and 462, as applicable, under the Act in a
timely manner; and comply with the provisions of the Act with respect to
the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iv) promptly advise each Holder whose Transfer
Restricted Securities have been included in the Registration Statement
(each, a "RELEVANT HOLDER") and the Initial Purchaser and, if requested by
such Person, confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to any applicable Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request
by the Commission for amendments to the 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 Act or
of the suspension by any state securities commission of the qualification
of the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, and (D) of the existence of any fact or the happening of any
event that makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto or any
document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Registration Statement in
order to make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement, or
any state securities commission or other regulatory authority shall issue
an order suspending the qualification or exemption from qualification of
the Transfer Restricted Securities under state securities or Blue Sky laws,
the Issuer shall use its reasonable best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time;
(v) subject to Section 4(a)(ii), if any fact or event
contemplated by Section 4(a)(iv)(D) hereof shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
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(vi) furnish to each Relevant Holder and the Initial
Purchaser, before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review and
comment of such Persons in connection with such sale, if any, for a period
of at least five Business Days, and the Issuer will not file any such
Registration Statement or Prospectus or any amendment or supplement to any
such Registration Statement or Prospectus (including all such documents
incorporated by reference) to which such Person shall reasonably object
within five Business Days after the receipt thereof. Such Person shall be
deemed to have reasonably objected to such filing if such Registration
Statement, amendment, Prospectus or supplement, as applicable, as proposed
to be filed, contains an untrue statement of a material fact or omits to
state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading or
fails to comply with the applicable requirements of the Act;
(vii) promptly prior to the filing of any document that
is to be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to each Relevant Holder and the
Initial Purchaser, make the Issuer's representatives available for
discussion of such document and other customary due diligence matters, and
include such information in such document prior to the filing thereof as
such Persons may reasonably request;
(viii) make available, at reasonable times, for
inspection by each Relevant Holder and the Initial Purchaser and any
attorney or accountant retained by the such Person, all financial and other
records, pertinent corporate documents of the Issuer and cause the Issuer's
officers, directors and employees to supply all information reasonably
requested by any such Person, attorney or accountant in connection with
such Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness, other than
the inspection of any records, documents or information which would have an
adverse effect on the Issuer's competitive position; PROVIDED, HOWEVER,
that any records, documents or information which are necessary to avoid or
correct a material misstatement or omission in such Registration Statement
or which are necessary to enable a Holder or the Initial Purchaser and any
attorney or accountant retained by any such Persons to exercise any
applicable due diligence responsibilities will be released to such Holder
or the Initial Purchaser.
(ix) if requested any Relevant Holder or by the Initial
Purchaser, promptly include in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as any such Person reasonably requests to have included
therein, including, without limitation, information relating to the "Plan
of Distribution" of the Transfer Restricted Securities and the use of the
Registration Statement or Prospectus for market-making activities; and make
all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Issuer is notified of the
matters to be included in such Prospectus supplement or post-effective
amendment;
(x) furnish to the Initial Purchaser and each Relevant
Holder upon request, without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment
thereto, including all documents incorporated by reference therein and all
exhibits (including exhibits incorporated therein by reference);
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(xi) deliver to the Initial Purchaser and each Relevant
Holder, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Issuer hereby consents to the use (in
accordance with law) of the Prospectus and any amendment or supplement
thereto by each Person in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment
or supplement thereto and all market-making activities of the Initial
Purchaser, as the case may be;
(xii) upon the request of any Relevant Holder or the
Initial Purchaser, enter into such agreements (including underwriting
agreements) as are customary in comparable offerings and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any applicable Registration
Statement contemplated by this Agreement as may be reasonably requested by
any Person in connection with any sale or resale pursuant to any applicable
Registration Statement. In such connection, and also in connection with
market-making activities by the Initial Purchaser, the Issuer shall:
(A) upon request of any Person, furnish (or in the case of
paragraphs (2) and (3), use its reasonable best efforts to cause to be
furnished) to each Person, upon the effectiveness of the Registration
Statement:
(1) a certificate, dated such date, signed on behalf of
the Issuer by (x) the President or any Vice President and (y) a
principal financial or accounting officer of the Issuer,
confirming, as of the date thereof, the matters set forth in
Sections 10(a) and 10(b) of the Purchase Agreement and such other
similar matters as such Person may reasonably request;
(2) an opinion, dated the date of effectiveness of the
Registration Statement, of counsel for the Issuer covering
matters similar to those set forth in Sections 10(f), (g) and (h)
of the Purchase Agreement and such other matters as such Person
may reasonably request, and in any event including a statement to
the effect that such counsel has participated in conferences with
officers and other representatives of the Issuer, representatives
of the independent public accountants for the Issuer and have
considered the matters required to be stated therein and the
statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness of
such statements; and that such counsel advises that, on the basis
of the foregoing, no facts came to such counsel's attention that
caused such counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or any
post-effective amendment thereto became effective, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus
contained in such Registration Statement as of its date contained
an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. Without limiting the foregoing, such counsel may
state further that such counsel assumes no responsibility for,
and has not independently verified, the accuracy, completeness or
fairness of the financial statements, notes and schedules and
other financial data included in any
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Registration Statement contemplated by this Agreement or the
related Prospectus; and
(3) a customary comfort letter, dated the date of
effectiveness of the Registration Statement, from the Issuer's
independent accountants, in the customary form and covering
matters of the type customarily covered in comfort letters to
underwriters in connection with underwritten offerings, and
affirming the matters set forth in the comfort letters delivered
pursuant to Section 10(l) of the Purchase Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by such Person to evidence compliance with the
matters covered in clause (A) above and with any customary conditions
contained in any agreement entered into by the Issuer pursuant to this
clause;
(xiii) prior to any public offering of Transfer
Restricted Securities, cooperate with the selling Holders and their counsel
in connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; PROVIDED, HOWEVER, that the Issuer shall
not be required to register or qualify as a foreign corporation where it is
not now so qualified or to take any action that would subject it to the
service of process in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any jurisdiction
where it is not now so subject;
(xiv) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the selling Holders to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive legends;
and to register such Transfer Restricted Securities in such denominations
and such names as the selling Holders may request at least two business
days prior to such sale of Transfer Restricted Securities;
(xv) use its reasonable best efforts to cause the
disposition of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xiii)
above;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration Statement
covering such Transfer Restricted Securities and provide the Warrant Agent
with printed certificates for the Transfer Restricted Securities which are
in a form eligible for deposit with The Depository Trust Company;
(xvii) otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the Commission so long
as any provision of this Agreement shall be applicable, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited)
covering a twelve-month
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period beginning after the effective date of the Registration Statement
(as such term is defined in Rule 158(c) under the Act); and
(xviii) provide promptly to each Holder and the Initial
Purchaser, upon request, each document filed after the date of this
Agreement with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act.
(b) RESTRICTIONS ON HOLDERS. Each Holder agrees by acquisition of a
Transfer Restricted Security and the Initial Purchaser agrees that, upon receipt
of the notice from the Issuer of the commencement of a Black Out Period (in each
case, a "BLACK OUT NOTICE"), such Person will forthwith discontinue disposition
of Transfer Restricted Securities pursuant to the applicable Registration
Statement (i) such Person has received copies of the supplemented or amended
Prospectus referred to in Section 4(a)(v) hereof, or (ii) until such Person is
advised in writing that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus. Each Person receiving a Black Out Notice hereby
agrees that it will either (i) destroy any Prospectuses, other than permanent
file copies, then in such Person's possession which have been replaced by the
Issuer with more recently dated Prospectuses or (ii) deliver to the Issuer (at
the Issuer's expense) all copies, other than permanent file copies, then in such
Person's possession of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of the Black Out Notice. The
time period regarding the effectiveness of such Registration Statement set forth
in Section 3 hereof shall be extended by a number of days equal to the number of
days in the period from and including the date of delivery of the Suspension
Notice to the Recommencement Date.
5. REGISTRATION EXPENSES
All expenses incident to the Issuer's performance of or compliance with
this Agreement will be borne by the Issuer, regardless of whether a Registration
Statement becomes effective, including, without limitation: (i) all registration
and filing fees and expenses; (ii) all fees and expenses of compliance with
federal securities and state Blue Sky or securities laws; (iii) all expenses of
printing (including printing Prospectuses (whether for sales, market-making or
otherwise)), messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Issuer; (v) all application and filing fees in
connection with listing the Warrant Shares on a national securities exchange or
automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of the Issuer
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Issuer will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Issuer.
6. INDEMNIFICATION
(a) The Issuer agrees to indemnify and hold harmless each Holder, its
directors, officers and each Person, if any, who controls such Holder (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act), from
and against any and all losses, claims, damages, liabilities, judgments,
(including, without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any action that
could give rise to any such losses, claims, damages, liabilities or judgments)
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, preliminary prospectus or Prospectus
(or any amendment or supplement thereto) provided by the Issuer to any Holder or
any prospective purchaser of Transfer
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Restricted Securities, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by an untrue statement or
omission or alleged untrue statement or omission that is based upon
information relating to a Holder furnished in writing to the Issuer by such
Holder.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Issuer, its directors and
officers, and each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Issuer, to the same extent
as the foregoing indemnity from the Issuer set forth in Section 6(a) hereof, but
only with reference to information relating to such Holder furnished in writing
to the Issuer by such Holder expressly for use in any Registration Statement.
In no event shall any Holder, its directors, officers or any Person who controls
such Holder be liable or responsible for any amount in excess of the amount by
which the total amount received by such Holder with respect to its sale of
Transfer Restricted Securities pursuant to a Registration Statement exceeds (i)
the amount paid by such Holder for such Transfer Restricted Securities and (ii)
the amount of any damages that such Holder, its directors, officers or any
Person who controls such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 6(a) or 6(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing,
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that,
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 6(a) and 6(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 6(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party, unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimburse as
they are incurred. Such firm shall be designated in writing by a majority of
the Holders, in the case of the parties indemnified pursuant to Section 6(a),
and by the Issuer, in the case of parties indemnified pursuant to Section 6(b).
The indemnifying party shall indemnify and hold harmless the indemnified party
from and against any and all losses, claims, damages, liabilities and judgments
by reason of any settlement of any action (i) effected with its written consent
or (ii) effected without the indemnifying party's written consent if the
settlement is entered into more than twenty Business Days after the indemnified
party shall have received a request from the indemnified party for reimbursement
for the fees and expenses of counsel (in any case where such fees and expenses
are at the expense of the indemnifying party) and, prior to the date of such
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settlement, the indemnifying party shall have failed to comply with such
reimbursement request. The indemnifying party shall not, without the prior
written consent of the indemnified party, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 6 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Issuer, on
the one hand, and the Holders, on the other hand, from their sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause 6(d)(i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 6(d)(i) hereof but also the
relative fault of the Issuer, on the one hand, and of the Holder, on the other
hand, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Issuer, on the one hand,
and of the Holder, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Issuer, on the one hand, or by the Holder, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Issuer and each Holder agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by PRO RATA
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to above shall be deemed to include,
subject to the limitations set forth in the second paragraph of Section 6(a),
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any matter, including any action that
could have given rise to such losses, claims, damages liabilities or judgments.
Notwithstanding the provisions of this Section 6, no Holder, its directors, its
officers or any Person, if any, who controls such Holder shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the
total received by such Holder with respect to the sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds (i) the amount paid by
such Holder for such Transfer Restricted Securities and (ii) the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Holders' obligations to contribute
pursuant to this Section 6(d) are several in proportion to the respective
principal amount of Transfer Restricted Securities held by each Holder hereunder
and not joint.
(e) The Issuer agrees that the indemnity and contribution provisions
of this Section 6 shall apply to the Initial Purchaser to the same extent, on
the same conditions, as it applies to Holders.
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7. RULE 144
The Issuer agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Issuer (i) is
not subject to Section 13 or 15(d) of the Exchange Act, to make available, upon
request of any Holder, to such Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities designated by such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A, and
(ii) is subject to Section 13 or 15(d) of the Exchange Act, to make all filings
required thereby in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
8. MISCELLANEOUS
(a) REMEDIES. The Issuer acknowledges and agrees that any failure by
the Issuer to comply with its obligations under Section 3 hereof may result in
material irreparable injury to the Initial Purchaser or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Issuer's obligations under Section 3 hereof. The
Issuer further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Issuer will not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Issuer has not previously
entered into any agreement granting any registration rights with respect to its
securities to any Person that is currently effective other than the Registration
Rights Agreement, dated as of the date hereof, with respect to the Issuer's 12%
Senior Subordinated Notes due 2009, and that certain Investors Agreement, dated
as of the date hereof, among the Issuer and certain persons named therein. The
rights granted to the Holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of the Issuer's
securities under any agreement in effect on the date hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of this
Section 8(c)(i), the Issuer has obtained the written consent of Holders of all
outstanding Transfer Restricted Securities, and (ii) in the case of all other
provisions hereof, the Issuer has obtained the written consent of Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities
(excluding Transfer Restricted Securities held by the Issuer or its Affiliates);
PROVIDED that this Agreement may be amended without the consent of any Holder
pursuant to Section 8(l) of the Warrant Agreement.
(d) THIRD PARTY BENEFICIARY. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuer, on the one
hand, and the Initial Purchaser, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
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(i) if to a Holder, at the address set forth on the
records of the Warrant Agent, with a copy to the Warrant Agent; and
(ii) if to the Issuer:
Xxxxxxx Corporation
Xxx Xxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
With a copy to:
Xxxxxxxxxxx Xxxxx & Xxxxxxxx LLP
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Warrant Agent at the
address specified in Warrant Agreement. Upon the date of filing a Shelf
Registration Statement, notice shall be delivered to the Initial Purchaser (in
the form attached hereto as Exhibit A) and shall be addressed to: Attention:
Xxxxxx Xxxxxxxx (Compliance Department), 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without limitation, and without the need for an express
assignment, subsequent Holders; PROVIDED that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms hereof or of the Purchase Agreement or the
Warrant Agreement. If any transferee of any Holder shall acquire Transfer
Restricted Securities in any manner, whether by operation of law or otherwise,
such Transfer Restricted Securities shall be held subject to all of the terms of
this Agreement, and by taking and holding such Transfer Restricted Securities
such Person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement, including the
restrictions on resale set forth in this Agreement and, if applicable, the
Purchase Agreement, and such Person shall be entitled to receive the benefits
hereof.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXXXX CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Executive Vice President
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
EXHIBIT A
EXHIBIT A
NOTICE OF FILING OF
WARRANT REGISTRATION STATEMENT
To: Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx (Compliance Department)
Fax: (000) 000-0000
From: Xxxxxxx Corporation
Warrants to Purchase Shares of Class B Common Stock
Date: _____________________________
For your information only (NO ACTION REQUIRED):
Today, ________________________, we filed a Shelf Registration Statement
with the Securities and Exchange Commission. We currently expect this
registration statement to be declared effective within ___ business days of the
date hereof.
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