Exhibit 4.2
Execution Copy
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
by and among
HWH CAPITAL PARTNERS, L.P.,
HWH CORNHUSKER PARTNERS, X.X.
XXXXXX PRESIDIO CAPITAL III, L.P.,
WESTON PRESIDIO CAPITAL IV, L.P.,
WPC ENTREPRENEUR FUND, L.P.,
WPC ENTREPRENEUR FUND II, L.P.,
THE OTHER STOCKHOLDERS PARTY HERETO
and
NBC ACQUISITION CORP.
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July 1, 2003
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TABLE OF CONTENTS
Page
ARTICLE I General; Securities Subject to this Agreement.....................2
1.01 Grant of Rights..............................................2
1.02 Registrable Securities.......................................2
1.03 Holders of Registrable Securities............................2
ARTICLE II Demand Registration..............................................2
2.01 Request for Demand Registration..............................2
2.02 Incidental or "Piggy-Back" Rights with Respect to a
Demand Registration..........................................3
2.03 Effective Demand Registration................................4
2.04 Expenses.....................................................4
2.05 Underwriting Procedures......................................4
2.06 Selection of Underwriters....................................5
ARTICLE III Incidental or "Piggy-Back" Registration.........................5
3.01 Request for Incidental Registration..........................5
3.02 Expenses.....................................................6
ARTICLE IV Form S-3 Registration............................................6
4.01 Request for a Form S-3 Registration..........................6
4.02 Form S-3 Underwriting Procedures.............................7
4.03 Limitations on Form S-3 Registrations........................7
4.04 Expenses.....................................................8
4.05 No Demand Registration.......................................8
ARTICLE V Holdback Agreements...............................................8
5.01 Restrictions on Public Sale by Designated Holders............8
5.02 Restrictions on Public Sale by the Company...................8
ARTICLE VI Registration PROCEDURES AND EXPENSES.............................9
6.01 Obligations of the Company...................................9
6.02 Registration Expenses........................................9
ARTICLE VII Indemnification; Contribution...................................9
7.01 Indemnification by the Company...............................9
7.02 Indemnification by Designated Holders.......................10
7.03 Conduct of Indemnification Proceedings......................11
7.04 Contribution................................................12
ARTICLE VIII Rule 144......................................................12
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ARTICLE IX Definitions.....................................................13
9.01 Certain Defined Terms.......................................13
9.02 Other Defined Terms.........................................15
9.03 HWH/Buyers..................................................15
ARTICLE X Miscellaneous....................................................16
10.01 Notices.....................................................16
10.02 Successors and Assigns; Third Party Beneficiaries...........17
10.03 Recapitalizations, Exchanges, etc...........................18
10.04 No Inconsistent Agreements..................................18
10.05 Further Assurances..........................................19
10.06 No Third Party Beneficiaries................................19
10.07 Severability................................................19
10.08 Amendment and Waiver........................................19
10.09 Usage.......................................................19
10.10 Articles and Sections.......................................20
10.11 No Strict Construction......................................20
10.12 Governing Law...............................................20
10.13 Consent to Jurisdiction and Service of Process..............20
10.14 Waiver of Jury..............................................20
10.15 Specific Performance........................................21
10.16 Complete Agreement..........................................21
10.17 Counterparts................................................21
Appendix A Registration Procedures
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT is made
as of July 1, 2003 (this "Agreement"), by and among HWH Capital Partners, L.P.,
a Delaware limited partnership ("HWH Capital"), HWH Cornhusker Partners, L.P., a
Delaware limited partnership ("HWH Cornhusker" and, together with HWH Capital,
"HWH"), Weston Presidio Capital III, L.P., a Delaware limited partnership
("Buyer 1"), Weston Presidio Capital IV, L.P., a Delaware limited partnership
("Buyer 2"), WPC Entrepreneur Fund, L.P., a Delaware limited partnership ("Buyer
3") and WPC Entrepreneur Fund II, L.P., a Delaware limited partnership ("Buyer
4"), MSD Ventures, L.P., a Delaware limited partnership ("MSD") and NBC
Acquisition Corp., a Delaware corporation (the "Company"). Buyer 1, Buyer 2,
Buyer 3 and Buyer 4 are collectively referred to herein as the "Buyers," and
each, a "Buyer." Unless otherwise provided herein, capitalized terms used herein
are defined in Article IX below.
R E C I T A L S:
A. Concurrently with the execution of the Stock Purchase
Agreement, dated as of July 11, 2002 (the "Stock Purchase Agreement"), among
HWH, certain management stockholders and the Buyers, pursuant to which HWH and
the management stockholders sold to the Buyers an aggregate of 416, 912 shares
of Class A Common Stock, par value $0.01 per share, of the Company, the Company
entered into a Registration Rights Agreement, dated as of July 11, 2002 (the
"Original Registration Rights Agreement");
B. Pursuant to the terms of the Agreement and Plan of Merger,
dated the date hereof (the "Merger Agreement"), among XxxXxxxxxXxx.xxx, Inc.
("CHUB"), Nebraska Book Company, Inc. ("NBC") and the Company, CHUB will merge
with and into NBC, and NBC will be the surviving entity (the "Merger"), and the
stockholders of CHUB, including MSD, will receive shares of Common Stock in
connection with the Merger;
C. In order to induce MSD to enter into the Merger Agreement, the
Company, HWH and the Buyers desire to amend the Original Registration Rights
Agreement; and
D. Section 10.09 of the Original Registration Rights Agreement
provides that the Original Registration Rights Agreement may be amended only in
writing signed by HWH, the Buyers and the Company.
E. The parties hereto desire to supercede and restate in its
entirety the Original Registration Rights Agreement.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT
1.01 Grant of Rights. The Company hereby grants registration
rights to the Designated Holders upon the terms and conditions set forth in this
Agreement.
1.02 Registrable Securities. For the purposes of this Agreement,
Registrable Securities held by any Designated Holder will cease to be
Registrable Securities, when (i) a Registration Statement covering such
Registrable Securities has been declared effective under the Securities Act by
the Commission and such Registrable Securities have been disposed of pursuant to
such effective Registration Statement, (ii) (x) the entire amount of the
Registrable Securities held by any Designated Holder may be sold in a single
sale, in the opinion of counsel satisfactory to the Company and such Designated
Holder, each in their reasonable judgment, without any limitation as to volume
pursuant to Rule 144 (or any successor provision then in effect) under the
Securities Act and (y) such Designated Holder owns less than 1% of the
outstanding shares of Common Stock on a fully diluted basis, or (iii) the
Registrable Securities are proposed to be sold or distributed by a Person not
entitled to the registration rights granted by this Agreement.
1.03 Holders of Registrable Securities. A Person is deemed to be
a holder of Registrable Securities whenever such Person owns of record
Registrable Securities, or holds an option to purchase, or a security
convertible into or exercisable or exchangeable for, Registrable Securities
whether or not such acquisition or conversion has actually been effected. If the
Company receives conflicting instructions, notices or elections from two or more
Persons with respect to the same Registrable Securities, the Company may act
upon the basis of the instructions, notice or election received from the
registered owner of such Registrable Securities. Registrable Securities issuable
upon exercise of an option or upon conversion of another security shall be
deemed outstanding for the purposes of this Agreement.
ARTICLE II
DEMAND REGISTRATION
2.01 Request for Demand Registration. Each of HWH Capital and HWH
Cornhusker may make a written request to the Company to register (the party
making such request, the "Initiating Holders"), and the Company shall register,
under the Securities Act (other than pursuant to a Registration Statement on
Form S-4 or S-8 or any successor thereto) (a "Demand Registration"), the number
of Registrable Securities stated in such request; provided, however, that the
Company shall not be obligated to effect (x) more than three such Demand 2
Registrations requested by HWH, it being understood that if HWH
Capital and HWH Cornhusker jointly make a request for a Demand Registration,
such request shall constitute one Demand Registration only, (y) a Demand
Registration if the Initiating Holders, together with the Designated Holders
(other than the Initiating Holders) which have requested to register securities
in such registration pursuant to Section 2.02, propose to sell their Registrable
Securities at an aggregate price (calculated based upon the Market Price of the
Registrable Securities on the date of filing of the Registration Statement with
respect to such Registrable Securities) to the public of less than $5,000,000,
and (z) any such Demand Registration commencing prior to 180 days after the IPO
Effectiveness Date. For purposes of the preceding sentence, two or more
Registration Statements filed in response to one demand shall be counted as one
Demand Registration. If the Board of Directors, in its good faith judgment,
determines that any registration of Registrable Securities should not be made or
continued because it would materially interfere with any material financing,
acquisition, corporate reorganization or merger or other material transaction
involving the Company (a "Valid Business Reason"), the Company may (x) postpone
filing a Registration Statement relating to a Demand Registration until such
Valid Business Reason no longer exists, but in no event for more than 45 days
and (y) in case a Registration Statement has been filed relating to a Demand
Registration, the Company, upon the approval of a majority of the Board of
Directors, may cause such Registration Statement to be withdrawn and its
effectiveness terminated or may postpone amending or supplementing such
Registration Statement (in which case, if the Valid Business Reason no longer
exists or if more 45 days have passed since such withdrawal or postponement, the
Initiating Holders may request a new Demand Registration). The Company shall
give written notice of its determination to postpone or withdraw a Registration
Statement and of the fact that the Valid Business Reason for such postponement
or withdrawal no longer exists, in each case, promptly after the occurrence
thereof. Notwithstanding anything to the contrary contained herein, the Company
may not postpone or withdraw a filing under this Section 2.01 more than once in
any 18 month period. Each request for a Demand Registration by the Initiating
Holders shall state the amount of the Registrable Securities proposed to be sold
and the intended method of disposition thereof.
2.02 Incidental or "Piggy-Back" Rights with Respect to a Demand
Registration. Each of the Designated Holders (other than Initiating Holders
which have requested a registration under Section 2.01) may offer its
Registrable Securities under any Demand Registration pursuant to this Article
II. Within five days after the receipt of a request for a Demand Registration
from an Initiating Holder, the Company shall (i) give written notice thereof to
all of the Designated Holders (other than Initiating Holders which have
requested a registration under Section 2.01) and (ii) subject to Section 2.05,
include in such registration all of the Registrable Securities held by such
Designated Holders from whom the Company has received a written request for
inclusion therein within 10 days of the receipt by such Designated Holders of
such written notice referred to in clause (i) above. Each such request by such
Designated Holder shall specify the number of Registrable Securities proposed to
be registered. The failure of any Designated Holder to respond within such
10-day period referred to in clause (ii) above shall be deemed to be a waiver of
such Designated Holder's rights under this Section 2.02 with respect to such
Demand Registration. Any Designated Holder may waive its rights under this
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Section 2.02 prior to the expiration of such 10-day period by
giving written notice to the Company, with a copy to the Initiating Holders. If
a Designated Holder sends the Company a written request for inclusion of part or
all of such Designated Holder's Registrable Securities in a registration
(whether pursuant to Article II, III or IV), such Designated Holder shall not be
entitled to withdraw or revoke such request without the prior written consent of
the Company in its sole discretion, unless as a result of facts or circumstances
arising after the date on which such request was made relating to the Company or
to market conditions, such Designated Holder reasonably determines that
participation in such registration would have a material adverse effect on such
Designated Holder, provided that any Designated Holders shall be permitted to
withdraw or revoke such request in any circumstances, without requiring the
consent of the Company or any other party, if any of the Initiating Holders
shall have withdrawn any Registrable Securities from such registration.
2.03 Effective Demand Registration. The Company shall use its
commercially reasonable efforts to cause any such Demand Registration to become
and remain effective not later than 60 days after it receives a request under
Section 2.01 hereof. A registration shall not constitute a Demand Registration
until it has become effective and remains continuously effective for the lesser
of (i) the period during which all Registrable Securities registered in the
Demand Registration are sold or (ii) 120 days; provided, however, that a
registration shall not constitute a Demand Registration if (x) after such Demand
Registration has become effective, such registration or the related offer, sale
or distribution of Registrable Securities thereunder is interfered with by any
stop order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason not attributable to the Initiating
Holders and such interference is not thereafter eliminated or (y) the conditions
specified in the underwriting agreement, if any, entered into in connection with
such Demand Registration are not satisfied or waived, other than by reason of a
failure by the Initiating Holder.
2.04 Expenses. The Company shall pay all Registration Expenses in
connection with a Demand Registration, whether or not such Demand Registration
becomes effective.
2.05 Underwriting Procedures. If the Company or the Initiating
Holders so elect, the Company shall use its commercially reasonable efforts to
cause such Demand Registration to be in the form of a firm commitment
underwritten offering and the managing underwriter or underwriters selected for
such offering shall be the Approved Underwriter selected in accordance with
Section 2.06. In connection with any Demand Registration under this Article II
involving an underwritten offering, none of the Registrable Securities held by
any Designated Holder making a request for inclusion of such Registrable
Securities pursuant to Section 2.02 shall be included in such underwritten
offering unless such Designated Holder accepts the terms of the offering as
agreed upon by the Company, the Initiating Holders and the Approved Underwriter,
and then only in such quantity as set forth below. If the Approved Underwriter
advises the Company that the aggregate amount of such Registrable Securities
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requested to be included in such offering is sufficiently large to have a
material adverse effect on the success of such offering, then the Company shall
include in such registration, to the extent of the amount that the Approved
Underwriter believes may be sold without causing such material adverse effect,
first, such number of Registrable Securities of the Initiating Holders and any
Designated Holder participating in the offering pursuant to Section 2.02, which
Registrable Securities shall be allocated pro rata among such Initiating Holders
and Designated Holders, based on the number of Registrable Securities requested
to be included in such offering by each such Initiating Holder and Designated
Holder, second, any other securities of the Company requested by holders thereof
to be included in such registration, which such securities shall be allocated
pro rata among such stockholders, based on the number of the Company's
securities requested to be included in such offering by each such stockholder,
and third, securities offered by the Company for its own account.
2.06 Selection of Underwriters. If any Demand Registration or S-3
Registration, as the case may be, of Registrable Securities is in the form of an
underwritten offering, the Company shall select and obtain an investment banking
firm of national reputation to act as the managing underwriter of the offering
(the "Approved Underwriter"); provided, however, that the Approved Underwriter,
in any case, shall also be approved by the Initiating Holders or S-3 Initiating
Holders, as the case may be, such approval not to be unreasonably withheld.
ARTICLE III
INCIDENTAL OR "PIGGY-BACK" REGISTRATION
3.01 Request for Incidental Registration. At any time after the
IPO Effectiveness Date, if the Company proposes to file a Registration Statement
under the Securities Act with respect to an offering by the Company for its own
account (other than a Registration Statement on Form S-4 or S-8 or any successor
thereto) or for the account of any stockholder of the Company other than the
Designated Holders, then the Company shall give written notice of such proposed
filing to each of the Designated Holders at least 20 days before the anticipated
filing date, and such notice shall describe the proposed registration and
distribution and offer such Designated Holders the opportunity to register the
number of Registrable Securities as each such Designated Holder may request (an
"Incidental Registration"). The Company shall use its commercially reasonable
efforts (within 20 days of the notice provided for in the preceding sentence) to
cause the managing underwriter or underwriters in the case of a proposed
underwritten offering (the "Company Underwriter") to permit each of the
Designated Holders who have requested in writing to participate in the
Incidental Registration to include its Registrable Securities in such offering
on the same terms and conditions as the securities of the Company or the account
of such other stockholder, as the case may be, included therein. In connection
with any Incidental Registration under this Section 3.01 involving an
underwritten offering, the Company shall not be required to include any
Registrable Securities in such underwritten offering unless the Designated
Holders thereof accept the terms of the underwritten offering as agreed upon
5
between the Company, such other stockholders, if any, and the Company
Underwriter, and then only in such quantity as set forth below. If the Company
Underwriter determines that the registration of all or part of the securities
that have been requested to be included would materially adversely affect the
success of such offering, then the Company shall be required to include in such
Incidental Registration, to the extent of the amount that the Company
Underwriter believes may be sold without causing such material adverse effect,
first, all of the securities to be offered for the account of the Company,
second, any other securities of the Company requested by the Designated Holders
to be included in such offering, which such securities shall be allocated pro
rata among the Designated Holders participating in the offering, based on the
number of Registrable Securities requested to be included in such offering by
each such Designated Holder, and third, any other securities of the Company
requested by holders thereof to be included in such registration, which such
securities shall be allocated pro rata among such stockholders, based on the
number of the Company's securities requested to be included in such offering by
each such stockholder.
3.02 Expenses. The Company shall bear all Registration Expenses
in connection with any Incidental Registration pursuant to this Article III,
whether or not such Incidental Registration becomes effective.
ARTICLE IV
FORM S-3 REGISTRATION
4.01 Request for a Form S-3 Registration. Upon the Company
becoming eligible for use of Form S-3 (or any successor form thereto) under the
Securities Act in connection with a public offering of its securities, if the
Company shall receive from HWH (acting jointly) or the Buyers (acting jointly)
(the "S-3 Initiating Holders"), a written request that the Company register,
under the Securities Act on Form S-3 (or any successor form then in effect) (an
"S-3 Registration"), all or a portion of the Registrable Securities owned by
such S-3 Initiating Holders, the Company shall give written notice of such
request to all of the Designated Holders (other than S-3 Initiating Holders
which have requested an S-3 Registration under this Section 4.01) at least 10
days before the anticipated filing date of such Form S-3, and such notice shall
describe the proposed registration and offer such Designated Holders the
opportunity to register the number of Registrable Securities as each such
Designated Holder may request in writing to the Company, given within 10 days
after their receipt from the Company of the written notice of such registration.
With respect to each S-3 Registration, the Company shall, subject to Section
4.02, (i) include in such offering the Registrable Securities of the S-3
Initiating Holders and the Designated Holders (who have requested in writing to
participate in such registration on the same terms and conditions as the
Registrable Securities of the S-3 Initiating Holders included therein) and (ii)
use its commercially reasonable efforts to cause such registration pursuant to
this Section 4.01 to become and remain effective as soon as practicable.
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4.02 Form S-3 Underwriting Procedures. If the S-3 Initiating
Holders so elect, the Company shall use its commercially reasonable efforts to
cause such S-3 Registration pursuant to this Article IV to be in the form of a
firm commitment underwritten offering and the managing underwriter or
underwriters selected for such offering shall be the Approved Underwriter
selected in accordance with Section 2.06. In connection with any S-3
Registration under Section 4.01 involving an underwritten offering, the Company
shall not be required to include any Registrable Securities in such underwritten
offering unless the Designated Holders thereof accept the terms of the
underwritten offering as agreed upon between the Company, the Approved
Underwriter and the S-3 Initiating Holders, and then only in such quantity as
set forth below. If the Approved Underwriter believes that the registration of
all or part of the Registrable Securities which the S-3 Initiating Holders and
the other Designated Holders have requested to be included would materially
adversely affect the success of such public offering, then the Company shall be
required to include in the underwritten offering, to the extent of the amount
that the Approved Underwriter believes may be sold without causing such material
adverse effect, first, such number of Registrable Securities of the S-3
Initiating Holders and any Designated Holder participating in the offering
pursuant to Section 4.01, which such Registrable Securities shall be allocated
pro rata among such S-3 Initiating Holders and Designated Holders, based on the
number of Registrable Securities requested to be included in such offering by
each such S-3 Initiating Holder and Designated Holder, second, any other
securities of the Company requested by holders thereof to be included in such
registration, which such securities shall be allocated pro rata among such
stockholders, based on the number of the Company's securities requested to be
included in such offering by each such stockholder, and third, securities
offered by the Company for its own account.
4.03 Limitations on Form S-3 Registrations. If the Board of
Directors has a Valid Business Reason, the Company may (x) postpone filing a
Registration Statement relating to a S-3 Registration until such Valid Business
Reason no longer exists, but in no event for more than 45 days following the
request and (y) in case a Registration Statement has been filed relating to a
S-3 Registration, the Company, upon the approval of a majority of the Board of
Directors, may cause such Registration Statement to be withdrawn and its
effectiveness terminated or may postpone amending or supplementing such
Registration Statement (in which case, if the Valid Business Reason no longer
exists or if more than 45 days have passed since such withdrawal or
postponement, the S-3 Initiating Holder may request the prompt amendment or
supplement of such Registration Statement or a new S-3 Registration). The
Company shall give written notice of its determination to postpone or withdraw a
Registration Statement and of the fact that the Valid Business Reason for such
postponement or withdrawal no longer exists, in each case, promptly after the
occurrence thereof. Notwithstanding anything to the contrary contained herein,
the Company may not postpone or withdraw a filing, under either this Article IV
or Section 2.01, due to a Valid Business Reason more than once in any 18-month
period. In addition, the Company shall not be required to effect any
registration pursuant to Section 4.01, (i) within 90 days after the effective
date of any other Registration Statement of the Company (other than a
Registration Statement on Form S-4 or S-8 or any successor thereto), (ii) if
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Form S-3 is not available for such offering by the S-3 Initiating Holders, or
(iii) if the S-3 Initiating Holders, together with the Designated Holders (other
than S-3 Initiating Holders which have requested an S-3 Registration under
Section 4.01) registering Registrable Securities in such registration, propose
to sell their Registrable Securities at an aggregate price (calculated based
upon the Market Price of the Registrable Securities on the date of filing of the
Form S-3 with respect to such Registrable Securities) to the public of less than
$5,000,000.
4.04 Expenses. The Company shall bear all Registration Expenses
in connection with any S-3 Registration pursuant to this Article IV, whether or
not such S-3 Registration becomes effective.
4.05 No Demand Registration. No registration requested by any
Designated Holder pursuant to this Article IV shall be deemed a Demand
Registration pursuant to Article II.
ARTICLE V
HOLDBACK AGREEMENTS
5.01 Restrictions on Public Sale by Designated Holders. If (i)
requested by the Approved Underwriter or the Company Underwriter, as the case
may be, in the case of an underwritten public offering, and (ii) all of the
Company's executive officers, directors and holders in excess of 1% of its
outstanding capital stock execute agreements identical to those referred to in
this Section 5.01, each Designated Holder (including the Initiating Holders or
the S-3 Initiating Holders, as the case may be) agrees (x) not to effect any
public sale or distribution of any Registrable Securities or of any securities
convertible into or exchangeable or exercisable for such Registrable Securities,
including a sale pursuant to Rule 144 under the Securities Act, or offer to
sell, contract to sell (including any short sale), grant any option to purchase
or enter into any hedging or similar transaction with the same economic effect
as a sale any Registrable Securities and (y) not to make any request for a
Demand Registration or S-3 Registration under this Agreement, during the period
beginning on the 15th day prior to the expected effective date (as determined by
the Company, which shall notify the Designated Holders of such date in writing)
of such Registration Statement and ending on the 90th day following the actual
effective date of such Registration Statement, or such shorter period, if any,
mutually agreed upon by such Designated Holder and the requesting party (except
as part of such registration). If any Designated Holder of Registrable
Securities subject to the foregoing restrictions, or director, executive officer
or other stockholder, is released from any obligation under any agreement,
arrangement or understanding described in this Section 5.01, to any extent, all
Designated Holders of Registrable Securities subject to the same obligation
shall be released from such obligation, to the same extent as such Designated
Holder, director, executive officer or other stockholder.
5.02 Restrictions on Public Sale by the Company. The Company
agrees not to effect any public sale or distribution of any of its securities,
or any securities convertible into or exchangeable or exercisable for such
8
securities (except pursuant to registrations on Form S-4 or S-8 or any successor
thereto), during the period beginning on the 15th day prior to the expected
effective date (as determined by the Company) of any Registration Statement in
which the Designated Holders of Registrable Securities are participating and
ending on the earlier of (i) the date on which all Registrable Securities
registered on such Registration Statement are sold and (ii) 90 days after the
actual effective date of such Registration Statement (except as part of such
registration).
ARTICLE VI
REGISTRATION PROCEDURES AND EXPENSES
6.01 Obligations of the Company. Whenever registration of
Registrable Securities has been requested pursuant to Article II, III or IV, the
Company shall use its commercially reasonable efforts to effect the registration
and sale of such Registrable Securities in accordance with the terms of Appendix
A hereto.
6.02 Registration Expenses. The Company shall pay all expenses
arising from or incident to its performance of, or compliance with, this
Agreement, including (i) Commission, stock exchange and NASD registration and
filing fees, (ii) all fees and expenses incurred in complying with securities or
"blue sky" laws (including reasonable fees, charges and disbursements of counsel
to any underwriter incurred in connection with "blue sky" qualifications of the
Registrable Securities as may be set forth in any underwriting agreement), (iii)
all printing, messenger and delivery expenses, and (iv) the fees, charges and
expenses of counsel to the Company and of its independent public accountants and
any other accounting fees, charges and expenses incurred by the Company
(including any expenses arising from any "cold comfort" letters or any special
audits incident to or required by any registration or qualification), and (v)
the fees and expenses of counsel to the Designated Holders, regardless of
whether such Registration Statement is declared effective. All of the expenses
described in the preceding sentence of this Section 6.02 are referred to herein
as "Registration Expenses." The Designated Holders of Registrable Securities
sold pursuant to a Registration Statement shall bear the expense of any broker's
commission or underwriter's discount or commission relating to the registration
and sale of such Designated Holders' Registrable Securities.
ARTICLE VII
INDEMNIFICATION; CONTRIBUTION
7.01 Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Designated Holder, its partners, stockholders,
members, directors, officers, Affiliates, employees and each Person who controls
(within the meaning of Section 15 of the Securities Act) such Designated Holder
from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs and expenses of legal counsel or otherwise arising
from any investigation, action or proceeding, whether commenced or threatened,
in respect to any of the foregoing) (each, a "Liability" and collectively,
"Liabilities"), arising out of or based upon any (i) untrue, or allegedly
9
untrue, statement of a material fact contained in any Registration Statement,
prospectus or preliminary prospectus or notification or offering circular (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), (ii) omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading under the circumstances such statements were made, except
insofar as such Liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission contained in such
Registration Statement, preliminary prospectus or final prospectus in reliance
and in conformity with information concerning such Designated Holder furnished
in writing to the Company by such Designated Holder expressly for use therein,
including the information furnished to the Company pursuant to Section 7.02 or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such Registration Statement. The Company
shall also provide customary indemnities to any underwriters of the Registrable
Securities, their officers, directors and employees and each Person who controls
(within the meaning of Section 15 of the Securities Act) such underwriters to
the same extent as provided above with respect to the indemnification of the
Designated Holders of Registrable Securities.
7.02 Indemnification by Designated Holders. In connection with
any Registration Statement in which a Designated Holder is participating
pursuant to Article II, III or IV, each such Designated Holder shall promptly
furnish to the Company in writing such information with respect to such
Designated Holder as the Company may reasonably request or as may be required by
law for use in connection with any such Registration Statement or prospectus and
all information required to be disclosed in order to make the information
previously furnished to the Company by such Designated Holder not materially
misleading or necessary to cause such Registration Statement not to omit a
material fact with respect to such Designated Holder necessary in order to make
the statements therein not misleading. Each Designated Holder agrees severally
to indemnify and hold harmless the Company, the other Designated Holders who
participate in the Registration Statement, any underwriter retained by the
Company and each Person who controls (within the meaning of Section 15 of the
Securities Act) the Company, the other Designated Holders who participate in the
Registration Statement or such underwriter to the same extent as the foregoing
indemnity from the Company to the Designated Holders (including indemnification
of their respective partners, stockholders, members, directors, officers and
employees), but only to the extent that Liabilities arise out of or are based
upon a statement or alleged statement or an omission or alleged omission that
was made in reliance upon and in conformity with information with respect to
such Designated Holder furnished in writing to the Company by such Designated
Holder expressly for use in such Registration Statement or prospectus, including
the information furnished to the Company pursuant to this Section 7.02;
provided, however, that the total amount to be indemnified by such Designated
Holder pursuant to this Section 7.02 shall be limited to the net proceeds
received by such Designated Holder in the offering to which the Registration
Statement or prospectus relates.
10
7.03 Conduct of Indemnification Proceedings. Any Person entitled
to indemnification or contribution hereunder (the "Indemnified Party") agrees to
give prompt written notice to the indemnifying party (the "Indemnifying Party")
after the receipt by the Indemnified Party of any written notice of the
commencement of any action, suit, proceeding or investigation or threat thereof
made in writing for which the Indemnified Party intends to claim indemnification
or contribution pursuant to this Agreement; provided, however, that the failure
so to notify the Indemnifying Party shall not relieve the Indemnifying Party of
any Liability that it may have to the Indemnified Party hereunder (except to the
extent that the Indemnifying Party is materially prejudiced or otherwise
forfeits substantive rights or defenses by reason of such failure). If notice of
commencement of any such action is given to the Indemnifying Party as provided
in the preceding sentence, the Indemnifying Party shall be entitled to
participate in and, to the extent it may wish, jointly with any other
Indemnifying Party similarly notified, to assume the defense of such action at
its own expense, with counsel chosen by it and reasonably satisfactory to such
Indemnified Party. Each 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 paid by the Indemnified Party
unless (i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying
Party fails to assume the defense of such action with counsel reasonably
satisfactory to the Indemnified Party or (iii) the named parties to any such
action (including any impleaded parties) include both the Indemnifying Party and
the Indemnified Party and such parties have been advised by such counsel that
either (x) representation of such Indemnified Party and the Indemnifying Party
by the same counsel would be inappropriate under applicable standards of
professional conduct or (y) there may be one or more legal defenses available to
the Indemnified Party which are different from or additional to those available
to the Indemnifying Party. In any of such cases, the Indemnifying Party shall
not have the right to assume the defense of such action on behalf of such
Indemnified Party, it being understood, however, that the Indemnifying Party
shall not be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for all
Indemnified Parties and all such expenses shall be reimbursed as incurred. No
Indemnifying Party shall be liable for any settlement entered into without its
written consent, which consent shall not be unreasonably withheld. No
Indemnifying Party shall, without the consent of such Indemnified Party, effect
any settlement of any pending or threatened proceeding in respect of which such
Indemnified Party is a party and indemnity has been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability for claims that are the subject matter
of such proceeding. Notwithstanding the foregoing, if at any time an Indemnified
Party shall have requested the Indemnifying Party to reimburse the Indemnified
Party for fees and expenses of counsel as contemplated by this Article VII, the
Indemnifying Party agrees that it shall be liable for any settlement of any
proceeding effected without the Indemnifying Party's written consent if (i) such
settlement is entered into more than 30 business days after receipt by the
Indemnifying Party of the aforesaid request and (ii) the Indemnifying Party
shall not have reimbursed the Indemnified Party in accordance with such request
or contested the reasonableness of such fees and expenses prior to the date of
such settlement.
11
7.04 Contribution.
(a) If the indemnification provided for in this Article VII from
the Indemnifying Party is unavailable to an Indemnified Party hereunder or
insufficient to hold harmless an Indemnified Party in respect of any Liabilities
referred to herein, 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 Liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions which resulted in such
Liabilities, as well as any other relevant equitable considerations. The
relative fault of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the Liabilities referred to above shall be deemed to include, subject
to the limitations set forth in Sections 7.01, 7.02 and 7.03, any legal or other
fees, charges or expenses reasonably incurred by such party in connection with
any investigation or proceeding; provided that the total amount to be
contributed by any Designated Holder shall be limited to the net proceeds
received by such Designated Holder in the offering. For the avoidance of doubt,
no Designated Holder shall be required to contribute under this Section unless
the Liabilities resulted from or arose out of the information furnished by such
Designated Holder to the Company pursuant to Section 7.02.
(b) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7.04 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in Section 7.04(a).
(c) No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
ARTICLE VIII
RULE 144
The Company covenants that, from and after the IPO
Effectiveness Date, it shall (a) file any reports required to be filed by it
under the Exchange Act and (b) take such further action as each Designated
Holder may reasonably request (including providing any information necessary to
comply with Rule 144 under the Securities Act), all to the extent required from
time to time to enable such Designated Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such rule may
be amended from time to time, or Regulation S under the Securities Act or (ii)
any similar rules or regulations hereafter adopted by the Commission. The
Company shall, upon the request of any Designated Holder, deliver to such
Designated Holder a written statement as to whether it has complied with such
requirements.
12
ARTICLE IX
DEFINITIONS
9.01 Certain Defined Terms. As used in this Agreement, and unless
the context requires a different meaning, the following terms have the meanings
indicated:
"Affiliate" means any Person who is an "affiliate" as defined in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
"Board of Directors" means the board of directors of the
Company.
"Closing Date" means August 2, 2002.
"Closing Price" means, with respect to the Registrable
Securities, as of the date of determination, (a) if the Registrable Securities
are listed on a national securities exchange, the closing price per share of a
Registrable Security on such date published in The Wall Street Journal (National
Edition) or, if no such closing price on such date is published in The Wall
Street Journal (National Edition), the average of the closing bid and asked
prices on such date, as officially reported on the principal national securities
exchange on which the Registrable Securities are then listed or admitted to
trading; or (b) if the Registrable Securities are not then listed or admitted to
trading on any national securities exchange but are designated as national
market system securities by the NASD, the last trading price per share of a
Registrable Security on such date; or (c) if there shall have been no trading on
such date or if the Registrable Securities are not designated as national market
system securities by the NASD, the average of the reported closing bid and asked
prices of the Registrable Securities on such date as shown by The Nasdaq Stock
Market, Inc. (or its successor) and reported by any member firm of The New York
Stock Exchange, Inc. selected by the Company; or (d) if none of (a), (b) or (c)
is applicable, a market price per share determined in good faith by the Board of
Directors or, if such determination is not satisfactory to the Designated Holder
for whom such determination is being made, by a nationally recognized investment
banking firm selected by the Company and such Designated Holder, the expenses
for which shall be borne equally by the Company and such Designated Holder. If
trading is conducted on a continuous basis on any exchange, then the closing
price shall be at 4:00 P.M. New York City time.
"Commission" means the Securities and Exchange Commission or any
similar agency then having jurisdiction to enforce the Securities Act.
"Common Stock" means the Class A Common Stock, par value $0.01
per share, of the Company or any other capital stock of the Company into which
such stock is reclassified or reconstituted and any other common stock of the
Company.
13
"Designated Holder" means each of HWH Capital, HWH Cornhusker,
the Buyers and MSD and any transferee of any of them to whom Registrable
Securities have been transferred in accordance with Section 10.02 of this
Agreement, other than a transferee to whom Registrable Securities have been
transferred pursuant to a Registration Statement under the Securities Act, Rule
144 or Regulation S under the Securities Act (or any successor rule thereto).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"Initial Public Offering" means the initial public offering of
the shares of Common Stock of the Company pursuant to an effective Registration
Statement filed under the Securities Act.
"IPO Effectiveness Date" means the date upon which the Company
consummates the Initial Public Offering.
"Market Price" means, on any date of determination, the average
of the daily Closing Price of the Registrable Securities for the immediately
preceding 30 days on which the national securities exchanges are open for
trading; provided, however, that if the Closing Price is determined pursuant to
clause (d) of the definition of Closing Price, the "Market Price" means such
Closing Price on the date of determination.
"NASD" means the National Association of Securities Dealers, Inc.
"Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental body.
"Registrable Securities" means each of the following: (a) any and
all shares of Common Stock now or hereafter owned by the Designated Holders or
issued or issuable upon conversion of any convertible securities or exercise of
any warrants or options held by any of the Designated Holders and (b) any shares
of Common Stock issued or issuable to any of the Designated Holders with respect
to the Registrable Securities by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise and any shares of Common Stock or voting
common stock issuable upon conversion, exercise or exchange thereof.
"Registration Statement" means a Registration Statement filed
pursuant to the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
14
"Stockholders Agreement" means the Amended and Restated
Stockholders Agreement, dated as of even date herewith, among HWH, certain
management stockholders of the Company, the Buyers, MSD and the Company.
9.02 Other Defined Terms. The following capitalized terms are
defined in the following Sections of this Agreement:
Term Section
---- -------
Agreement......................................................... Preamble
Approved Underwriter.............................................. 2.06
Buyer 1........................................................... Preamble
Buyer 2........................................................... Preamble
Buyer 3........................................................... Preamble
Buyer 4........................................................... Preamble
Buyer(s).......................................................... Preamble
CHUB.............................................................. Recitals
Company........................................................... Preamble
Company Underwriter............................................... 3.01
Demand Registration............................................... 2.01
Holders' Counsel.................................................. Appendix A
HWH............................................................... Preamble
HWH Capital....................................................... Preamble
HWH Cornhusker.................................................... Preamble
Incidental Registration........................................... 3.01
Indemnified Party................................................. 7.03
Indemnifying Party................................................ 7.03
Initiating Holders................................................ 2.01
Inspector(s)...................................................... Appendix A
Liability......................................................... 7.01
Liabilities....................................................... 7.01
Merger............................................................ Recital B
Merger Agreement.................................................. Recital B
MSD............................................................... Preamble
NBC............................................................... Recital B
Original Registration Rights Agreement............................ Recital A
Records........................................................... Appendix A
Registration Expenses............................................. 6.02
S-3 Initiating Holders............................................ 4.01
S-3 Registration.................................................. 4.01
Stock Purchase Agreement.......................................... Recital A
Valid Business Reason............................................. 2.01
9.03 HWH/Buyers. Any action or decision to be made, or any right
exercisable by HWH under this Agreement, including any consent to be given
hereunder or any amendment of this Agreement, or any waiver of any provision of
15
this Agreement, shall be made by holders of a majority-in-interest of the
Registrable Securities owned by HWH and its permitted transferees under the
Stockholders Agreement and shall be binding on HWH and all such permitted
transferees. Any action or decision to be made, or any right exercisable by the
Buyers under this Agreement, including any consent to be given hereunder or any
amendment of this Agreement, or any waiver of any provision of this Agreement,
shall be made by holders of a majority-in-interest of the Registrable Securities
owned by he Buyers and their permitted transferees under the Stockholders
Agreement and shall be binding on the Buyers and all such permitted transferees.
ARTICLE X
MISCELLANEOUS
10.01 Notices. All notices, demands and other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be delivered personally, sent by facsimile
transmission, sent by a nationally recognized courier service or by first class
mail, postage prepaid. Any such notice shall be deemed given when delivered
personally or if sent by facsimile, at the time of receipt of a legible copy
thereof or, if sent by nationally recognized courier service, two days after the
date of deposit with the courier service, or if by first class mail, three days
after the date of deposit in the mail, and shall be sent as follows:
(a) if to the Buyers:
Weston Presidio Capital
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxx
Facsimile No.: (000) 000-0000
with a copy to:
Weston Presidio Capital
Pier 1, Bay 2
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
and
Xxxxxxx XxXxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
16
(b) if to the Company or HWH:
HWH Capital Partners, L.P.
c/o Haas Wheat & Partners, L.P.
000 Xxxxxxxx Xxxxx - Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx,
Xxxxxxx X. Xxxxx, and Xxxxx Xxxxxx
Facsimile No.: (000) 000-0000, and
(000) 000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
(c) if to MSD:
MSD Ventures, L.P.
000 0xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, General Counsel
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
Any party may by notice given in accordance with this Section 10.01 to the other
parties designate another address, facsimile number or Person for receipt of
notices hereunder.
10.02 Successors and Assigns; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties hereto as hereinafter provided.
The Demand Registration rights, incidental or "piggy-back"
registration rights and the S-3 Registration rights and the other rights of HWH
hereunder may be (i) with respect to any Registrable Security that is
transferred to an Affiliate of HWH (or any partner thereof), transferred to such
17
Affiliate (or such partner) and (ii) with respect to any Registrable Security
that is transferred in all cases to a non-Affiliate of HWH, transferred only if
the transferee receives in one transaction or a series of related transactions
Registrable Securities representing at least 5% of the Common Stock outstanding
on the date of such transaction (or the first transaction in a series of
transactions). The incidental or "piggy-back" registration rights of the Buyers
contained in Articles II, III and IV and the other rights of the Buyers
hereunder may be (i) with respect to any Registrable Security that is
transferred to an Affiliate of the Buyers (or if any such Buyer is a
partnership, limited liability company or corporation, to any partner, member or
stockholder thereof), transferred to such Affiliate (or such partner, member or
stockholder) and (ii) with respect to any Registrable Security that is
transferred in all cases to a non-Affiliate of the Buyers, transferred only if
the transferee receives in one transaction or a series of related transactions
Registrable Securities representing at least 5% of the Common Stock outstanding
on the date of such transaction (or the first transaction in a series of
transactions). The incidental or "piggy-back" registration rights of MSD
contained in Articles II, III and IV and the other rights of MSD hereunder may
be (i) with respect to any Registrable Security that is transferred to an
Affiliate of MSD (or to any partner thereof), transferred to such Affiliate (or
such partner) and (ii) with respect to any Registrable Security that is
transferred in all cases to a non-Affiliate of MSD, transferred only if the
transferee receives in one transaction or a series of related transactions
Registrable Securities representing at least 5% of the Common Stock outstanding
on the date of such transaction (or the first transaction in a series of
transactions). All of the obligations of the Company hereunder shall survive any
such transfer. The provisions of this Section 10.02 shall not affect or modify
any transfer restrictions in the Stockholders Agreement, which restrictions
shall remain in full force and effect, unless such restrictions are modified or
terminated in accordance with the terms of the Stockholders Agreement.
10.03 Recapitalizations, Exchanges, etc. The provisions of this
Agreement shall apply to the full extent set forth herein with respect to (i)
the shares of Common Stock, (ii) any and all shares of voting common stock of
the Company into which the shares of Common Stock are converted, exchanged or
substituted in any recapitalization or other capital reorganization by the
Company, and (iii) any and all equity securities of the Company or any successor
or assigns of the Company (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in conversion of, in exchange for
or in substitution of, the shares of Common Stock and shall be appropriately
adjusted for any stock dividends, stock splits, reverse stock splits, stock
combinations, recapitalizations and the like occurring after the Closing Date.
The Company shall cause any successor or assigns (whether by merger,
consolidation, sale of assets or otherwise) to enter into a new registration
rights agreement with the Designated Holders on terms substantially the same as
this Agreement as a condition of any such transaction.
10.04 No Inconsistent Agreements. The Company hereby represents
and warrants that it has not previously entered into any agreement granting
registration rights to any Person with respect to any securities of the Company
18
except as set forth in this Agreement. The Company shall not enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Designated Holders in this Agreement or grant any additional
registration rights to any Person or with respect to any securities that are not
Registrable Securities that provides for the priority or parity in registration
of such securities over the Registrable Securities held by the Designated
Holders or which rights are otherwise inconsistent with the rights granted in
this Agreement.
10.05 Further Assurances. From time to time, as and when
requested by any party hereto and at such party's expense, any other party shall
execute and deliver, or cause to be executed and delivered, all such documents
and instruments and shall take, or cause to be taken, all such further or other
actions as such other party may reasonably deem necessary or desirable to
evidence and effectuate the transactions contemplated by this Agreement.
10.06 No Third Party Beneficiaries. Except as provided in Article
VII and Section 10.02 of this Agreement, no provision of this Agreement is
intended to, or shall, confer any third party beneficiary or other rights or
remedies upon any Person other than the parties hereto.
10.07 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
10.08 Amendment and Waiver. Any provision of this Agreement may
be amended or waived only in writing signed by HWH, the Buyers and the Company;
provided, that if any proposed amendment or waiver would have a materially
adverse effect with respect to the rights, preferences or privileges of MSD in a
disproportionate manner with respect to the rights, preferences and privileges
of the other similarly situated parties to this Agreement, the consent of the
MSD Stockholder shall be required. No waiver of any provision hereunder or any
breach or default hereof shall extend to or affect in any way any other
provision or prior or subsequent breach or default. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party of any such right,
power or privilege, nor any single or partial exercise of any such right, power
or privilege, preclude any further exercise thereof or the exercise of any other
such right, power or privilege.
10.09 Usage. All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
All terms defined in this Agreement in their singular or plural forms have
correlative meanings when used herein in their plural or singular forms,
respectively. Unless otherwise expressly provided, the words "include,"
"includes" and "including" do not limit the preceding words or terms and shall
be deemed to be followed by the words "without limitation."
19
10.10 Articles and Sections. All references herein to Articles
and Sections shall be deemed references to such parts of this Agreement, unless
the context shall otherwise require. The Article and Section headings in this
Agreement are for reference only and shall not affect the interpretation of this
Agreement.
10.11 No Strict Construction. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
Person.
10.12 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principles of conflicts of law.
10.13 Consent to Jurisdiction and Service of Process. Any legal
action, suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby shall be instituted in any state or federal
court in the State of New York located in New York County and each party agrees
not to assert, by way of motion, as a defense or otherwise, in any such action,
suit or proceeding, any claim that it is not subject personally to the
jurisdiction of such court, that its property is exempt or immune from
attachment or execution, that the action, suit or proceeding is brought in an
inconvenient forum, that the venue of the action, suit or proceeding is improper
or that this Agreement, or the subject matter hereof may not be enforced in or
by such court. Each party further irrevocably submits to the exclusive
jurisdiction of any such court in any such action, suit or proceeding. Any and
all service of process and any other notice in any such action, suit or
proceeding shall be effective against any party if given by registered or
certified mail, return receipt requested, or by any other means of mail that
requires a signed receipt, postage prepaid, mailed to such party as herein
provided. Nothing contained herein shall be deemed to affect the right of any
party to serve process in any manner permitted by law.
10.14 Waiver of Jury. EACH OF THE PARTIES HERETO HEREBY AGREES TO
WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND
ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT
MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO FURTHER
REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL
AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL.
20
10.15 Specific Performance. The parties hereto intend that each
of the parties shall have the right to seek specific performance if any other
party hereto fails to perform such party's obligations hereunder.
10.16 Complete Agreement. This Agreement contains the complete
agreement among the parties hereto and supersedes any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
10.17 Counterparts. This Agreement may be executed in multiple
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together shall constitute one and the
same instrument.
[Remainder of Page Intentionally Left Blank]
21
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
HWH CAPITAL PARTNERS, L.P.
By: HWH, L.P., its general partner
By: HWH Incorporated, its general partner
By:/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
HWH CORNHUSKER PARTNERS, L.P.
By: HWH Cornhusker, L.P., its general partner
By: HWH Cornhusker Incorporated,
its general partner
By:/s/ Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
WESTON PRESIDIO CAPITAL III, L.P.
By: Weston Presidio Capital Management III, LLC
By:/s/ Xxxx X. Xxxx
-------------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
WESTON PRESIDIO CAPITAL IV, L.P.
By: Weston Presidio Capital Management IV, LLC
By:/s/ Xxxx X. Xxxx
-------------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
[Signature Page - Amended and Restated Registration Rights Agreement]
22
WPC ENTREPRENEUR FUND, L.P.
By: Weston Presidio Capital Management III, LLC
By: /s/ Xxxx X. Xxxx
-------------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
WPC ENTREPRENEUR FUND II, L.P.
By: Weston Presidio Capital Management IV, LLC
By: /s/ Xxxx X. Xxxx
-------------------------------------------
Name: Xxxx X. Xxxx
Title: Authorized Signatory
NBC ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
MSD VENTURES, L.P.
By: DRT CAPITAL, L.L.C., its general partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: General Counsel
[Signature Page - Amended and Restated Registration Rights Agreement]
23
Appendix A
A. Obligations of the Company. Whenever registration of Registrable Securities
has been requested pursuant to Article II, III or IV, the Company shall use
its commercially reasonable efforts to effect the registration and sale of
such Registrable Securities in accordance with the intended method of
distribution thereof as quickly as practicable, and in connection with any
such request, the Company shall, as expeditiously as possible:
1. prepare and file with the Commission (as promptly as practicable, but
in any event not later than 60 days after receipt of a request to file
a Registration Statement with respect to Registrable Securities) a
Registration Statement on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate and
which form shall be available for the sale of such Registrable
Securities in accordance with the intended method of distribution
thereof, and cause such Registration Statement to become effective;
provided, however, that (x) before filing a Registration Statement or
prospectus or any amendments or supplements thereto, the Company shall
provide counsel selected by the Designated Holders holding a majority
of the Registrable Securities being registered in such registration
("Holders' Counsel") and any other Inspector (as hereinafter defined)
with an opportunity to review and comment on such Registration
Statement and each prospectus included therein (and each amendment or
supplement thereto) to be filed with the Commission, subject to such
documents being under the Company's control, and (y) the Company shall
notify the Holders' Counsel and each seller of Registrable Securities
of any stop order issued or threatened by the Commission and take all
reasonable actions required to prevent the entry of such stop order or
to remove it if entered;
2. 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 lesser of (x) 120 days (except in the case of a
registration filed pursuant to Rule 415 of the Securities Act or any
successor rule or regulation) and (y) such shorter period which will
terminate when all Registrable Securities covered by such Registration
Statement have been sold, and comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement;
3. furnish to each seller of Registrable Securities such number of copies
of such Registration Statement, each amendment and supplement thereto
(in each case including all exhibits thereto), and the prospectus
included in such Registration Statement (including each preliminary
prospectus) and any prospectus filed under Rule 424 under the
Securities Act as each such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
seller;
4. register or qualify such Registrable Securities under such other
securities or "blue sky" laws of such jurisdictions as any seller of
Registrable Securities may reasonably request, and to continue such
qualification in effect in such jurisdiction for as long as
permissible pursuant to the laws of such jurisdiction, or for as long
as any such seller requests or until all of such Registrable
Securities are sold, whichever is shortest, and do any and all other
acts and things which may be reasonably necessary or advisable to
enable any such seller to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such seller;
provided, however, that the Company shall not be required to (x)
qualify generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this Section A.4, (y)
subject itself to taxation in any such jurisdiction, or (z) consent to
general service of process in any such jurisdiction;
5. notify each seller of Registrable Securities at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any
event as a result of which, the prospectus included in such
Registration Statement contains an untrue statement of a material fact
or omits to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading and the
Company shall promptly prepare a supplement or amendment to such
prospectus and furnish to each seller of Registrable Securities a
reasonable number of copies of such supplement to or an amendment of
such prospectus as may be necessary so that, after delivery to the
purchasers of such Registrable Securities, such prospectus shall not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading;
6. enter into and perform customary agreements (including an underwriting
agreement in customary form with the Approved Underwriter or Company
Underwriter, if any, selected as provided in Article II, III or IV, as
the case may be) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such
Registrable Securities, including causing its officers to participate
in "road shows" and other information meetings organized by the
Approved Underwriter or Company Underwriter;
7. make available at reasonable times for inspection by any seller of
Registrable Securities, any managing underwriter participating in any
disposition of such Registrable Securities pursuant to a Registration
Statement, Holders' Counsel and any attorney or accountant retained by
any such seller or any managing underwriter (each, an "Inspector" and
collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise their due diligence
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responsibility, and cause the Company's and its subsidiaries'
officers, directors and employees, and the independent public
accountants of the Company, to supply all information reasonably
requested by any such Inspector in connection with such Registration
Statement. Records that the Company determines, in good faith, to be
confidential and which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors (and the Inspectors shall
confirm their agreement in writing in advance to the Company if the
Company shall so request) unless (x) the disclosure of such Records is
necessary, in the Company's judgment, to avoid or correct a
misstatement or omission in the Registration Statement, (y) the
release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction after exhaustion of all
appeals therefrom, or (z) the information in such Records was known to
the Inspectors on a non-confidential basis prior to its disclosure by
the Company or has been made generally available to the public. Each
seller of Registrable Securities agrees that it shall, upon learning
that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at the
Company's expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
8. if such sale is pursuant to an underwritten offering, obtain "cold
comfort" letters dated the effective date of the Registration
Statement and the date of the closing under the underwriting agreement
from the Company's independent public accountants in customary form
and covering such matters of the type customarily covered by "cold
comfort" letters as the managing underwriter reasonably requests;
9. furnish, at the request of any seller of Registrable Securities on the
date such securities are delivered to the underwriters for sale
pursuant to such registration or, if such securities are not being
sold through underwriters, on the date the Registration Statement with
respect to such securities becomes effective, an opinion, dated such
date, of counsel representing the Company for the purposes of such
registration, addressed to the underwriters, if any, and to the seller
making such request, covering such legal matters with respect to the
registration in respect of which such opinion is being given as the
underwriters, if any, and such seller may reasonably request and are
customarily included in such opinions;
10. comply with all applicable rules and regulations of the Commission,
and make available to its security holders, as soon as reasonably
practicable but no later than 15 months after the effective date of
the Registration Statement, an earnings statement covering a period of
12 months beginning after the effective date of the Registration
Statement, in a manner which satisfies the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder;
11. cause all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by the Company are then
listed, provided that the applicable listing requirements are
satisfied;
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12. cooperate with each seller of Registrable Securities and each
underwriter participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the NASD; and
13. take all other steps reasonably necessary to effect the registration
of the Registrable Securities contemplated hereby and reasonably
cooperate with the holders of such Registrable Securities to
facilitate the disposition of such Registrable Securities pursuant
thereto.
B. Seller Information. The Company may require each seller of Registrable
Securities as to which any registration is being effected to furnish, and
such seller shall furnish, to the Company such information required to be
included in such Registration Statement by applicable securities laws or
otherwise necessary or desirable in connection with the disposition of such
Registrable Securities as the Company may from time to time reasonably
request in writing. If any seller of Registrable Securities fails to
provide such information required to be included in such Registration
Statement by applicable securities laws or otherwise necessary or desirable
in connection with the disposition of such Registrable Securities in a
timely manner after written request therefor, the Company may exclude such
seller's Registrable Securities from a registration under Article II, III
or IV.
C. Notice to Discontinue. Each Designated Holder agrees that, upon receipt of
any notice from the Company of the happening of any event of the kind
described in Section A.5, such Designated Holder shall forthwith
discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such
Designated Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section A.5 and, if so directed by the Company,
such Designated Holder shall deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in such
Designated Holder's possession, of the prospectus covering such Registrable
Securities which is current at the time of receipt of such notice. If the
Company shall give any such notice, the Company shall extend the period
during which such Registration Statement shall be maintained effective
pursuant to this Agreement (including the period referred to in Section
A.2) by the number of days during the period from and including the date of
the giving of such notice pursuant to Section A.5 to and including the date
when sellers of such Registrable Securities under such Registration
Statement shall have received the copies of the supplemented or amended
prospectus contemplated by and meeting the requirements of Section A.5.
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