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EXHIBIT 10.12
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is made and entered into as of February 27, 2001, among
XXXXXXXXXX.XXX, INC., a Georgia corporation (the "Company"), XXXXXXX XXXXX GROUP
INC. ("BHA"), a Delaware corporation and wholly owned subsidiary of Omnicom
Group Inc. ("Omnicom"), OMNICOM FINANCE, INC., a Delaware corporation and wholly
owned subsidiary of Omnicom ("OFI"), and ITC HOLDING COMPANY, INC., a Delaware
corporation ("ITC") (each of BHA, OFI and ITC may be referred to as an
"Investor" and collectively as the "Investors").
R E C I T A L
WHEREAS, the Company and the Investors entered into a Registration
Rights Agreement, dated as of July 19, 2000 (the "Prior Agreement"), and desire
at this time to amend and restate the Prior Agreement in its entirety as herein
provided.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms have the respective
meanings set forth below:
Commission: shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act;
Effective Date: shall mean July 19, 2000;
Exchange Act: shall mean the Securities Exchange Act of 1934, as
amended;
Holder: shall mean any holder of Registrable Securities, including the
Investors;
Initiating Holder: shall mean (1) any Investor who holds any then
outstanding Registrable Securities or (2) any Holder or Holders who in the
aggregate are Holders of more than 5% of the then outstanding Registrable
Securities;
Person: shall mean an individual, partnership, joint stock company,
corporation, trust or unincorporated organization, and a government or agency or
political subdivision thereof;
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register, registered and registration: shall mean a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
Registrable Securities: shall mean (A) the shares of Company Common
Stock (1) issued to BHA under the Agreement and Plan of Merger, dated as of
April 15, 2000, by and among the Company and the additional parties thereto (as
amended, the "Acquisition Agreement"), and any transferee thereof, (2) held by
ITC at the Effective Date, (3) issuable to ITC (or a wholly owned subsidiary of
ITC) upon exercise of any option or warrant beneficially owned by ITC (or one of
its wholly owned subsidiaries) to purchase shares of Company Common Stock, and
(4) issued to OFI or any of its affiliates (collectively with BHA and its
affiliates, the "Omnicom Group") pursuant to the Amended and Restated Credit
Agreement, dated the date hereof, between the Company and OFI (the "Credit
Agreement"), and any transferee thereof, and (B) any securities of the Company
issued as a dividend or other distribution with respect to, or in exchange or
conversion for or in replacement of, the shares of Company Common Stock referred
to in clause (A); provided, that Registrable Securities shall not include (i)
securities with respect to which a registration statement with respect to the
sale of such securities has become effective under the Securities Act and all
such securities have been disposed of in accordance with such registration
statement, (ii) such securities as are actually sold pursuant to Rule 144 (or
any successor provision thereto) under the Securities Act ("Rule 144"), (iii)
such securities as are acquired by the Company or any of its subsidiaries or
(iv) the shares of common stock issued to BHA under the Acquisition Agreement
which are registered for resale by BHA under the BHA Resale Registration
Statement (as defined in Section 3(c)) and which are actually sold under such
BHA Resale Registration Statement;
Registration Expenses: shall mean all expenses incurred by the Company
in compliance with Sections 3(a), (b), (c) and (d) hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, fees and expenses of one counsel for
all the Holders, blue sky fees and expenses and the expense of any special
audits incident to or required by any such registration (but excluding Selling
Expenses);
Security, Securities: shall have the meaning set forth in Section 2(1)
of the Securities Act;
Securities Act: shall mean the Securities Act of 1933, as amended; and
Selling Expenses: shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for each of the Holders other than fees and expenses of
one counsel for all the Holders.
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2. RESTRICTIONS ON TRANSFER
(a) Prior to any proposed transfer of any Registrable
Securities (other than under the circumstances described in Section 3 hereof
including transfers pursuant to the BHA Resale Registration Statement), the
Holder thereof shall give written notice to the Company of its intention to
effect such transfer. Each such notice shall describe the manner of the proposed
transfer and, if requested by the Company, shall be accompanied by an opinion of
counsel reasonably satisfactory to the Company to the effect that the proposed
transfer may be effected without registration under the Securities Act,
whereupon such Holder shall be entitled to transfer the Registrable Securities
in accordance with the terms of its notice.
(b) Notwithstanding anything in this Agreement to the
contrary, in connection with any underwritten public offering of securities by
the Company which closes within one year of the Effective Date, the Holders
hereby agree, if and to the extent agreed to by the Investors and the executive
officers of the Company, not to sell or otherwise dispose of any Company Common
Stock for a period equal to the lesser of (i) 90 days following completion of
such public offering, or (ii) the period agreed to by other shareholders who
execute lock-up agreements in connection with such offering. If requested by an
underwriter in connection with an underwritten public offering of securities by
the Company pursuant to the immediately preceding sentence, each Holder will
execute and deliver promptly a lock-up agreement which reflects the agreements
of each Holder contained in this Section 2(b) and such other terms and
conditions as are usual and customary for lock-up agreements in underwritten
public offerings.
(c) Notwithstanding anything in this Agreement to the
contrary, nothing herein will be deemed to confer any rights upon any Person who
purchases Company Common Stock pursuant to the BHA Resale Registration Statement
(a "Resale Transferee"), nor will anything herein be deemed to restrict any
subsequent transfers of such Company Common Stock by such Resale Transferees.
3. REGISTRATION RIGHTS
(a) Requested Registration.
(i) Request for Registration. If the Company
shall receive from an Initiating Holder, at any time on or after the first
anniversary of the Effective Date, a written request that the Company effect any
registration with respect to (1) all of such Investor's Registrable Securities
or (2) at least such number of Registrable Securities as would yield (based on
then current market prices) an aggregate offering price of at least $5 million,
the Company will, unless all of the Registrable Securities being requested to be
registered under (1) or (2) above are eligible for resale in accordance with
Rule 144 within a three-month period:
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(A) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders; and
(B) as soon as practicable (and in any event,
within 45 days of any valid request), use its reasonable best efforts
to effect such registration (including, without limitation, the
execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable regulations
issued under the Securities Act) as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion
of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any
Holder or Holders joining in such request as are specified in a written
request received by the Company within ten business days after written
notice from the Company is given under Section 3(a)(i)(A) above;
provided that the Company shall not be obligated to effect, or take any
action to effect, any such registration pursuant to this Section 3(a):
(w) Solely with respect to underwritten
registrations requested pursuant to this Agreement, if the
Company shall have previously effected an underwritten
registration with respect to Registrable Securities pursuant
to Section 3(b) hereof, the Company shall not be required to
effect any underwritten registration pursuant to this Section
3(a) until a period of 180 days shall have elapsed from the
effective date of the most recent such previous registration;
provided that if, in the most recent such previous
registration, participation pursuant to Section 3(b) hereof
shall not have been to the extent requested pursuant to
Section 3(b) hereof, then the Company shall not be required to
effect any underwritten registration pursuant to this Section
3(a) until a period of 90 days shall have elapsed from the
effective date of the most recent such previous registration;
(x) If, upon receipt of a registration
request pursuant to this Section 3(a), the Company is advised
in writing (with a copy to each Initiating Holder) by a
recognized national independent investment banking firm
selected by the Company that, in such firm's opinion, a
registration at the time and on the terms requested would
adversely affect any then pending public offering of
securities of the Company by the Company (other than in
connection with benefit and similar plans) (collectively, a
"Company Offering") with respect to which the Company has
filed a registration statement prior to the receipt of a
registration request pursuant to this Section 3(a), the
Company shall not be required to effect a registration
pursuant to this Section 3(a) until the earlier of (i) 30 days
after the completion of such Company Offering, (ii) promptly
after any abandonment of such Company Offering or (iii) 60
days after the date of receipt of a registration request
pursuant to this Section 3(a); provided, however, that the
periods during which the Company shall not be required to
effect a registration pursuant to this Section 3(a)
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together with any periods of suspension under Section 3(i)
hereof may not exceed 90 days in the aggregate during any
period of 12 consecutive months;
(y) In any particular jurisdiction in
which the Company would be required to execute a general
consent to service of process in effecting such registration,
qualification or compliance, unless the Company is already
subject to service in such jurisdiction and except as may be
required by the Securities Act or applicable rules or
regulations thereunder;
(z) Subject to Section 3(c), after the
Company has effected five (5) such registrations pursuant to
this Section 3(a) for each Investor and two (2) such
registrations for Holders other than the Investors and such
registrations have been declared or ordered effective and the
sales of such Registrable Securities shall have closed;
provided, that Holders shall not have the right to request an
underwritten registration pursuant to this Section 3(a) more
than one time in any six-month period.
The registration statement filed pursuant to the request of the
Initiating Holders may, subject to the provisions of Section 3(a)(ii) below,
include other Securities of the Company which are held by Persons who, by virtue
of agreements with the Company, are entitled to include their Securities in any
such registration ("Other Stockholders"); provided, however, that the
registration rights granted in the future to other shareholders will in all
events be subordinate to the rights hereunder and the Company will not grant any
such rights unless proper provision has been made in respect thereof.
(ii) Underwriting. If the Initiating Holders
intend to distribute the Registrable Securities covered by their request by
means of an underwriting, they shall so advise the Company as a part of their
request made pursuant to Section 3(a). If Other Stockholders request inclusion
in any such registration, the Holders shall offer to include the securities of
such Other Stockholders in the underwriting and may condition such offer on
their acceptance of the further applicable provisions of this Section 3. The
Holders whose shares are to be included in such registration and the Company
shall (together with all Other Stockholders proposing to distribute their
securities through such underwriting) enter into underwriting and related
agreements in customary form with the representative of the underwriter or
underwriters selected for such underwriting by the Initiating Holders and
reasonably acceptable to the Company. Such underwriting agreement will contain
such representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, indemnities and
contribution to the effect and to the extent provided in Section 3(f) hereof and
the provision of opinions of counsel and accountants' letters to the effect and
to the extent provided in Section 3(e) hereof, and the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
the Holders. The Company shall cooperate fully with the Holders and the
underwriters in connection with any underwritten offering. Notwithstanding any
other provision of this Section 3(a), if the
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representative advises the Holders in writing that marketing factors require a
limitation on the number of shares to be underwritten, the securities of the
Company held by Other Stockholders shall be excluded from such registration to
the extent so required by such limitation. If, after the exclusion of such
shares, still further reductions are still required, the number of shares
included in the registration by each Holder shall be reduced on a pro rata basis
(based on the number of shares held by such Holder), by such minimum number of
shares as is necessary to comply with such request; provided, that there shall
be no reduction in the number of shares included in the registration by any
Holder until all shares of Other Stockholders have been excluded from such
registration; provided further, however, that in the event that the number of
shares included in the registration by the Holder is reduced by greater than
one-third of the number of shares requested to be included by such Holder, then
such registration shall not count against such Investor as a requested
registration pursuant to Section 3(a)(i)(B)(z). No Registrable Securities or any
other securities excluded from the underwriting by reason of the underwriter's
marketing limitation shall be included in such registration. If any Other
Stockholder who has requested inclusion in such registration as provided above
disapproves of the terms of the underwriting, such person may elect to withdraw
therefrom by written notice to the Company, the underwriter and the Initiating
Holder. The securities so withdrawn shall also be withdrawn from registration.
If the underwriter has not limited the number of Registrable Securities or other
securities to be underwritten, the Company and officers and directors of the
Company may include its or their securities for its or their own account in such
registration if the representative so agrees and if the number of Registrable
Securities and other securities which would otherwise have been included in such
registration and underwriting will not thereby be limited.
(b) Company Registration.
(i) If the Company shall determine to register
any of its equity securities either for its own account or for the account of
Other Stockholders, other than a registration relating solely to benefit plans,
or a registration relating solely to a Commission Rule 145 transaction, or a
registration on any registration form which does not permit secondary sales or
does not include substantially the same information as would be required to be
included in a registration statement covering the sale of Registrable
Securities, the Company will:
(A) promptly give to each of the Holders a
written notice thereof; and
(B) include in such registration (and any
related qualification under blue sky laws or other compliance), and in
any underwriting involved therein, all the Registrable Securities
specified in a written request or requests, made by any Holder within
ten (10) business days after the giving of the written notice from the
Company described in clause (i) above, except as set forth in Section
3(b)(ii) below. Such written request shall specify the amount of
Registrable Securities
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intended to be disposed of by a Holder and may specify all or a part of
the Holders' Registrable Securities.
Notwithstanding the foregoing, if, at any time after giving such written notice
of its intention to effect such registration and prior to the effective date of
the registration statement filed in connection with such registration, the
Company shall determine for any reason not to register such equity securities
the Company may, at its election, give written notice of such determination to
the Holders and thereupon the Company shall be relieved of its obligation to
register such Registrable Securities in connection with the registration of such
equity securities (but not from its obligation to pay Registration Expenses to
the extent incurred in connection therewith as provided herein), without
prejudice, however, to the rights (if any) of Holders immediately to request
that such registration be effected as a registration under Section 3(a) hereof.
(ii) Underwriting. If the registration of which
the Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise each of the Holders as a part of the
written notice given pursuant to Section 3(b)(i)(A). In such event, the right of
each of the Holders to registration pursuant to this Section 3(b) shall be
conditioned upon such Holders' participation in such underwriting and the
inclusion of such Holders' Registrable Securities in the underwriting to the
extent provided herein. The Holders whose shares are to be included in such
registration shall (together with the Company and the Other Stockholders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for the underwriting by the Company or such
Other Stockholders, as the case may be. Such underwriting agreement will contain
such representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, indemnities and
contribution to the effect and to the extent provided in Section 3(f) hereof and
the provision of opinions of counsel and accountants' letters to the effect and
to the extent provided in Section 3(d), and the representations and warranties
by, and the other agreements on the part of, the Company to and for the benefit
of such underwriters shall also be made to and for the benefit of the Holders
whose shares are to be included in such registration. Notwithstanding any other
provision of this Section 3(b), if the representative determines that marketing
factors require a limitation on the number of shares to be underwritten, the
Company shall so advise all holders of securities requesting registration, and
the number of shares of securities that are entitled to be included in the
registration and underwriting shall be allocated in the following manner: The
securities of the Company held by officers, directors and Other Stockholders
(other than Other Stockholders exercising the contractual right initiating such
registration ("Other Demanding Holders") or to cause their securities to be
included in such registration ("Other Rights Holders")) shall be excluded from
such registration and underwriting to the extent required by such limitation,
and, if a limitation on the number of shares is still required, the number of
shares that may be included in the registration and underwriting by each of the
Holders and such Other Demanding Holders shall be reduced, on a pro rata basis
(based on the number of shares held by such holder), by
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such minimum number of shares as is necessary to comply with such limitation. If
any of the Holders or any officer, director or Other Stockholder disapproves of
the terms of any such underwriting, he may elect to withdraw therefrom by
written notice to the Company and the underwriter. Any Registrable Securities or
other securities excluded or withdrawn from such underwriting shall be withdrawn
from such registration.
(c) BHA Resale Registration Statement. Notwithstanding
any other provision hereof, the Company will, as promptly as practicable after
the date hereof, prepare and file with the SEC and use its commercially
reasonable best efforts to (i) cause a Post-Effective Amendment No. 1 on Form
S-3 to Form S-4 (as amended, and as continued pursuant to the immediately
following sentence, the "BHA Resale Registration Statement") to become effective
under the Securities Act and to maintain such effectiveness until July 19, 2001
(subject to continuation pursuant to this Section 3(c)), (ii) register in such
BHA Resale Registration Statement for resale by BHA all of the Registrable
Securities held by it on the date hereof (the "BHA Securities"), (iii) file such
amendments to the BHA Resale Registration Statement as are necessary to, as
promptly as practicable following BHA's written request, register for resale
such BHA Securities for any other member of the Omnicom Group to which BHA
transfers such BHA Securities, provided such member of the Omnicom Group cannot
dispose of all of such BHA Securities under Rule 144 in the succeeding
three-month period, and (iv) if necessary to file such amendments to the BHA
Resale Registration Statement to register for resale any shares of Company
Common Stock issued to OFI pursuant to the Credit Agreement. Without limiting
the foregoing, BHA may, at any time within 30 days prior to the expiration of
the BHA Resale Registration Statement (as may be continued pursuant to this
Section 3(c)), make a written request (a "BHA Resale Continuation Request") that
the Company continue the effectiveness of the BHA Resale Registration Statement.
In such event, the Company will use its reasonable best efforts to continue such
BHA Resale Registration Statement so as not to permit any interruption in the
effectiveness of such registration. Each BHA Resale Continuation Request that
has been effected in accordance with this Section 3(c) will be considered a
requested registration for BHA for the purposes of Section 3(a).
(d) Expenses of Registration. All Registration Expenses
incurred in connection with any registration, qualification or compliance
pursuant to this Section 3 shall be borne by the Company, and all Selling
Expenses shall be borne by the Holders of the securities so registered pro rata
on the basis of the number of their shares so registered; provided, however,
that if, as a result of the withdrawal of a request for registration by any of
the Holders (except if such withdrawal is at the request of the Company), the
registration statement does not become effective, the Holders and Other
Stockholders requesting registration may elect to bear the Registration Expenses
(pro rata on the basis of the number of their shares so included in the
registration request, or on such other basis as such Holders and Other
Stockholders may agree), in which case such registration shall not be counted as
a registration pursuant to Section 3(a)(i)(B)(z).
(e) Registration Procedures. In the case of each
registration effected by the Company pursuant to this Section 3 (including a
registration pursuant to a BHA Resale
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Continuation Request), the Company will keep the Holders, as applicable, advised
in writing as to the initiation of each registration and as to the completion
thereof. At its expense, the Company will:
(i) except as set forth in Section 3(c), keep such
registration effective for a period of one hundred eighty (180) days or
until the Holders have completed the distribution described in the
registration statement relating thereto, whichever first occurs;
(ii) furnish to each Holder, and to any underwriter before
filing with the Commission, copies of any registration statement
(including all exhibits) and any prospectus forming a part thereof and
any amendments and supplements thereto (including all documents
incorporated or deemed incorporated by reference therein prior to the
effectiveness of such registration statement and including each
preliminary prospectus, any summary prospectus or any term sheet (as
such term is used in Rule 434 under the Securities Act)) and any other
prospectus filed under Rule 424 under the Securities Act, which
documents, other than documents incorporated or deemed incorporated by
reference, will be subject to the review of the Holders and any such
underwriter for a period of at least five business days, and the
Company shall not file any such registration statement or such
prospectus or any amendment or supplement to such registration
statement or prospectus to which any Holder or any such underwriter
shall reasonably object within five business days after the receipt
thereof; a Holder or such underwriters, if any, shall be deemed to have
reasonably objected to such filing only if the registration statement,
amendment, prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
(iii) furnish to each Holder and to any underwriter, such
number of conformed copies of the applicable registration statement and
of each amendment and supplement thereto (in each case including all
exhibits) and such number of copies of the prospectus forming a part of
such registration statement (including each preliminary prospectus, any
summary prospectus or any term sheet (as such term is used in Rule 434
under the Securities Act)) and any other prospectus filed under Rule
424 under the Securities Act, in conformity with the requirements of
the Securities Act, and such other documents, including without
limitation documents incorporated or deemed to be incorporated by
reference prior to the effectiveness of such registration, as each of
the Holders or any such underwriter from time to time may reasonably
request;
(iv) to the extent practicable, promptly prior to the
filing of any document that is to be incorporated by reference into any
registration statement or prospectus forming a part thereof subsequent
to the effectiveness thereof, and in any event no later than the date
such document is filed with the Commission, provide copies of such
document to the Holders, if requested, and to any underwriter, and make
representatives of the Company available for discussion of such
document and other customary due diligence matters, and include in such
document prior to the
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filing thereof such information as any Holder or any such underwriter
reasonably may request;
(v) make available at reasonable times for inspection by
the Holders, any underwriter participating in any disposition pursuant
to such registration and any attorney or accountant retained by the
Holders or any such underwriter, all financial and other records,
pertinent corporate documents and properties of the Company and cause
the officers, directors and employees of the Company to supply all
information reasonably requested by the Holders and any such
underwriters, attorneys or accountants in connection with such
registration subsequent to the filing of the applicable registration
statement and prior to the effectiveness of the applicable registration
statement;
(vi) use its reasonable best efforts (x) to register or
qualify all Registrable Securities and other securities covered by such
registration under such other securities or blue sky laws of such
States of the United States of America where an exemption is not
available and as the sellers of Registrable Securities covered by such
registration shall reasonably request, (y) to keep such registration or
qualification in effect for so long as the applicable registration
statement remains in effect, and (z) to take any other action which may
be reasonably necessary or advisable to enable such sellers to
consummate the disposition in such jurisdictions of the securities to
be sold by such sellers, except that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction where it is not so qualified, or to
subject itself to taxation in any such jurisdiction, or to execute a
general consent to service of process in effecting such registration,
qualification or compliance, unless the Company is already subject to
service in such jurisdiction and except as may be required by the
Securities Act or applicable rules or regulations thereunder;
(vii) use its reasonable best efforts to cause all
Registrable Securities covered by such registration statement to be
registered with or approved by such other federal or state governmental
agencies or authorities as may be necessary in the opinion of counsel
to the Company and counsel to the Holders of Registrable Securities to
enable the Holders thereof to consummate the disposition of such
Registrable Securities;
(viii) subject to Section 3(h) hereof, promptly notify each
Holder of Registrable Securities covered by a registration statement
(A) upon discovery that, or upon the happening of any event as a result
of which, the prospectus forming a part of such registration statement,
as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (B) of the
issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or the initiation of
proceedings for that purpose, (C) of any request by the Commission for
(1) amendments to such registration statement or any document
incorporated or
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deemed to be incorporated by reference in any such registration
statement, (2) supplements to the prospectus forming a part of such
registration statement or (3) additional information, or (D) of the
receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any
of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, and at the request of
any such Holder promptly prepare and furnish to it a reasonable number
of copies of a supplement to or an amendment of such prospectus as may
be necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(ix) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any such
registration, or the lifting of any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for
sale in any jurisdiction;
(x) if requested by any Initiating Holder or any
underwriter, promptly incorporate in such registration statement or
prospectus, pursuant to a supplement or post effective amendment if
necessary, such information as the Initiating Holder and any
underwriter may reasonably request to have included therein, including,
without limitation, information relating to the "plan of distribution"
of the Registrable Securities, information with respect to the
principal amount or number of shares of Registrable Securities being
sold to such underwriter, the purchase price being paid therefor and
any other terms of the offering of the Registrable Securities to be
sold in such offering and make all required filings of any such
prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be
incorporated in such prospectus supplement or post effective amendment;
(xi) furnish to the Holders, addressed to them, an opinion
of counsel for the Company, dated the date of the closing under the
underwriting agreement, if any, or the date of effectiveness of the
registration statement if such registration is not an underwritten
offering, and use its reasonable best efforts to furnish to the
Holders, addressed to them, a "cold comfort" letter signed by the
independent certified public accountants who have certified the
Company's financial statements included in such registration, covering
substantially the same matters with respect to such registration (and
the prospectus included therein) and, in the case of such accountants'
letter, with respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to underwriters in underwritten
public offerings of securities and such other matters as the Holders
may reasonably request;
(xii) otherwise use its reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and make
available to its security
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holders, as soon as reasonably practicable, an earnings statement
covering the period of at least 12 months, but not more than 18 months,
beginning with the first full calendar month after the effective date
of such registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder;
(xiii) provide promptly to the Holders upon request any
document filed by the Company with the Commission pursuant to the
requirements of Section 13 and Section 15 of the Exchange Act;
(xiv) use its reasonable best efforts to cause all
Registrable Securities included in any registration pursuant hereto to
be listed on each securities exchange on which securities of the same
class are then listed, or, if not then listed on any securities
exchange, to be eligible for trading in any over-the-counter market or
trading system in which securities of the same class are then traded;
and
(xv) cause senior management reasonably to participate in
"roadshow" presentations and other customary marketing efforts.
(f) Indemnification.
(i) The Company will indemnify each of the
Holders, as applicable, each of its affiliates and its and any such affiliates'
respective officers, directors, members, partners and other representatives, and
each person controlling each of the Holders, with respect to each registration
which has been effected pursuant to this Section 3, and each underwriter, if
any, and each person who controls any underwriter, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular or other document (including any
related registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on 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, or any violation by the
Company of the Securities Act or the Exchange Act or any rule or regulation
thereunder applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration, qualification or
compliance, and will reimburse each such person, each such underwriter and each
person who controls any such underwriter, for any legal and any other expenses
reasonably incurred in connection with investigating and defending any such
claim, loss, damage, liability or action, provided that the Company will not be
liable in any such case if and to the extent that it is finally judicially
determined that any such claim, loss, damage, liability or expense primarily
arises out of or is based primarily on any untrue statement or omission based
upon written information furnished to the Company by the Holders or underwriter
and stated to be specifically for use therein. The indemnity agreement contained
in this paragraph shall not apply to the extent that any claims, losses, damages
or liabilities (or actions in respect thereof) result from the fact that a
current copy of the prospectus was not sent or given to a proposed
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transferee asserting any such claim, loss, damage, liability or action, at or
prior to the written confirmation of the sale of the Registrable Securities
concerned to such person if it is determined that the Company provided such
prospectus to such Holder in a timely manner prior to such sale and it was the
responsibility of the Holder under the Securities Act to provide the prospective
transferee with a current copy of the prospectus and such prospectus would have
cured the defect giving rise to such claim, loss, damage, liability or action.
(ii) Each of the Holders will, if Registrable
Securities held by it are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify the
Company, each of its directors and officers and each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company or such underwriter, each Other Stockholder and each of
their officers, directors, members and partners, and each person controlling
such Other Stockholder against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document made by such Holder,
or any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements by such Holder therein
not misleading, and will reimburse the Company and such Other Stockholders,
directors, officers, partners, members, persons, underwriters or control persons
for any legal or any other expenses reasonably incurred in connection with
investigating or defending any such claim, loss, damage, liability or action, in
each case if and to the extent, but only to the extent, that it is finally
judicially determined that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document primarily in reliance upon and
in conformity with written information furnished to the Company by such Holder
and stated to be specifically for use therein ("Holder Information"); provided,
however, that the obligations of each of the Holders hereunder and under clause
(vi) below shall be limited to an amount equal to the net proceeds to such
Holder of securities sold as contemplated herein and no Holder will have any
liability hereunder except as to Holder Information about itself.
(iii) Each party entitled to indemnification under
this Section 3(f) (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the defense of
any such claim or any litigation resulting therefrom; provided that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld) and the Indemnified Party
may participate in such defense at such party's expense (unless the Indemnified
Party shall have reasonably concluded that there may be a conflict of interest
between the Indemnifying Party and the Indemnified Party in such action, in
which case the fees and expenses of one such counsel for all Indemnified Parties
shall be at the expense of the
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Indemnifying Party), and provided further that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying Party
of its obligations under this Section 3 unless and only to the extent that the
Indemnifying Party is materially prejudiced thereby. No Indemnifying Party, in
the defense of any such claim or litigation shall, except with the consent of
each Indemnified Party (which consent shall not be unreasonably withheld or
delayed), consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with the defense of such claim and litigation resulting therefrom.
(iv) If the indemnification provided for in this
Section 3(f) is held by a court of competent jurisdiction to be unavailable to
an Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to herein, then the Indemnifying Party, in lieu of indemnifying
such Indemnified Party hereunder, shall contribute to the amount paid or payable
by such Indemnified Party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party on the one hand and of the Indemnified Party on the other
in connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party 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 Indemnifying Party or by the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(v) Notwithstanding the foregoing, to the extent
that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with any underwritten public
offering contemplated by this Agreement are in conflict with the foregoing
provisions, the provisions in such underwriting agreement shall be controlling.
(vi) The foregoing indemnity agreement of the
Company and Holders is subject to the condition that, insofar as they relate to
any loss, claim, liability or damage made in a preliminary prospectus but
eliminated or remedied in the amended prospectus on file with the Commission at
the time the registration statement in question becomes effective or the amended
prospectus filed with the Commission pursuant to Commission Rule 424(b) (the
"Final Prospectus"), such indemnity or contribution agreement shall not inure to
the benefit of any underwriter or Holder (but only if such Holder was required
to deliver such Final Prospectus) if a copy of the Final Prospectus was
furnished to the underwriter and was not furnished to the person asserting the
loss, liability, claim or damage at or prior to the time such action is required
by the Securities Act.
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(g) Information by the Holders. Each of the Holders
holding securities included in any registration shall furnish to the Company
such information regarding such Holder and the distribution proposed by such
Holder as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Section 3.
(h) Holdback Agreement; Postponement. Notwithstanding the
provisions of Sections 3(a), (b) and (c), if the Board of Directors of the
Company determines in good faith that it is in the best interests of the Company
(A) not to disclose the existence of facts surrounding any proposed or pending
acquisition, disposition, strategic alliance or financing transaction involving
the Company or (B) for any purpose, to suspend the registration rights set forth
herein, the Company may, by notice to the Holders in accordance with Section
6(a), postpone any registration which is requested pursuant to Section 3(a) or
3(c), for such a period of time as the Board of Directors may reasonably
determine; provided that (x) such periods of suspension together with any
periods of suspension effected pursuant to Section 3(a)(i)(B)(w) hereof may not
exceed 90 days in the aggregate during any period of 12 consecutive months and
(y) the Company may not impose such a suspension or a postponement pursuant to
Section 3(a)(i)(B)(w) following the printing and distribution of a preliminary
prospectus in any underwritten public offering of Registrable Securities
pursuant to Section 3(a)(i) (except such suspension, not to exceed ten days,
which results from an event that is not within the reasonable control of the
Company); provided, however, that the Company will not be entitled to postpone
or suspend the effectiveness of the BHA Resale Registration Statement (as may be
continued pursuant to Section 3(c)) unless the Board of Directors determines, in
the good faith exercise of its reasonable business judgment, after receiving the
advice of counsel to the Company, that such postponement or suspension is
required in order to avoid disclosure of information that would otherwise be
required by law to be disclosed during the effectiveness of such BHA Resale
Registration Statement, the premature disclosure of which would materially and
adversely affect the Company.
(i) Assignment. The registration rights set forth in
Section 3 hereof may be assigned, in whole or in part, to any transferee of
Registrable Securities (who shall be considered thereafter to be a Holder and
shall be bound by all obligations and limitations of this Agreement).
4. RULE 144 REPORTING
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted securities
to the public without registration, the Company agrees to:
(i) make and keep public information available (as those terms are
understood and defined in Rule 144) at all times;
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(ii) use its reasonable best efforts to file with the Commission in
a timely manner all reports and other documents required of
the Company under the Securities Act and the Exchange Act; and
(iii) so long as there are outstanding any Registrable Securities,
furnish to each Holder, upon request, a written statement by
the Company as to its compliance with the reporting
requirements of Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so
filed as such Holder may reasonably request in availing itself
of any rule or regulation of the Commission allowing such
Holder to sell any such securities without registration.
5. INTERPRETATION OF THIS AGREEMENT
(a) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Georgia, without
giving effect to the principles of conflict of laws of such State.
(b) Section Headings. The headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not be
deemed to constitute a part thereof.
6. MISCELLANEOUS
(a) Notices.
(i) All communications under this Agreement
shall be in writing and shall be delivered by facsimile or by hand or mailed by
overnight courier or by registered or certified mail, postage prepaid: .
(A) if to the Company, to
XxxxXxxxxx.XXX, Inc., 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000,
(000) 000-0000, Attention: Chief Executive Officer, or at such other address as
it may have furnished in writing to the Investors;
(B) if to the Investors, at the
addresses listed on Schedule I hereto, or at such other addresses as may have
been furnished the Company in writing.
(ii) Any notice so addressed shall be deemed to
be given: if delivered by hand, on the date of such delivery; if mailed by
courier, on the first business day following the date of such mailing; and if
mailed by registered or certified mail, on the third business day after the date
of such mailing.
(b) Reproduction of Documents. This Agreement and all
documents relating thereto, including, without limitation, any consents, waivers
and modifications which may hereafter be executed may be reproduced by the
Investor by any
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photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and the Investors may destroy any original document so
reproduced. The parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made by the Investors in the regular course
of business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
(c) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties.
(d) Entire Agreement; Amendment and Waiver. This
Agreement constitutes the entire understanding of the parties hereto and
supersedes all prior understandings among such parties with respect to the
subject matter hereof, including the Prior Agreement. This Agreement may be
amended, and the observance of any term of this Agreement may be waived, with
(and only with) the written consent of the parties.
(e) Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(f) No Inconsistent Agreements. The Company will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement; provided, however, that upon the request of the Company in
connection with the issuance of securities by the Company after the date hereof
to raise equity or debt capital or acquire one or more businesses, the parties
will cause this Agreement to be amended to permit the purchasers of such
securities to have registration rights that are no more favorable in any
material respect to such purchasers than the rights of the Investors hereunder,
provided, however, that in no event will any party be required to agree to the
granting of any such rights that are superior in any material respect to its
rights hereunder without the prior written consent of that party (given or
withheld in its sole discretion).
(g) Remedies. Each Holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(h) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall not be in
any way impaired thereby, it being intended and understood that
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all of the rights and privileges of each of the Holders shall be enforceable to
the fullest extent permitted by law.
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IN WITNESS WHEREOF, the undersigned have executed this Amended and
Restated Registration Rights Agreement as of the date first set forth above.
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxx
----------------------------------------
Chief Financial Officer
INVESTORS:
XXXXXXX XXXXX GROUP INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxxx
----------------------------------------
Executive Vice President
OMNICOM FINANCE, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Treasurer
ITC HOLDING COMPANY, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
----------------------------------------
Senior Vice President
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