EXHIBIT 10.22
Registration Rights Agreement
by and among
Xxxxxx International, Inc.
and
The Parties Specified on
the Signature Pages Hereof
Dated as of July 5, 2005
XXXXXX INTERNATIONAL, INC.
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated as of July 5, 2005 is made and
entered into by and among Xxxxxx International, Inc., a Delaware corporation
(together with its successors and assigns, the "COMPANY") and the parties
named on the signature pages hereto (the "HOLDERS").
WHEREAS, on March 29, 2004, Xxxxxx International, Inc. and certain of
its subsidiaries and affiliates (the "DEBTORS"), filed a voluntary petition
for reorganization under Chapter 11 of title 11 of the U.S. Code, 11 U.S.C.
Sections 101 - 1330 (as amended, the "BANKRUPTCY CODE"), with the United
States Bankruptcy Court for the Southern District of Indiana, Indianapolis
Division (the "BANKRUPTCY COURT"), commencing Chapter 11 Case Nos. 04-05364
through 04-05367 (the "BANKRUPTCY CASE");
WHEREAS, on May 26, 2004, the Debtors also filed that certain Plan of
Reorganization (as amended and supplemented from time to time, the "PLAN")
with the Bankruptcy Court in the Bankruptcy Case;
WHEREAS, the Bankruptcy Court confirmed the Plan pursuant to the order
under section 1129 of the Bankruptcy Code, dated August 31, 2004 (the
"CONFIRMATION ORDER");
WHEREAS, pursuant to the Plan and the Confirmation Order, certain
entities (the "INITIAL HOLDERS") received shares of common stock of the
Company and the Company is obligated to provide such entities with certain
registration rights with respect thereto; and
WHEREAS, the Holders acquired shares of the common stock of the Company
(the "SHARES") from one of the Initial Holders and the Company has agreed to
provide the Holders with certain registration rights with respect thereto.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. SHELF REGISTRATION.
(a) FILING OF SHELF REGISTRATION
(i) (x) Subject to clause (y) below, the Company shall comply
with all the provisions of Sections 2(a) to 2(i) and shall use its
erasonable best efforts to file with the Commission within 100
days of the date hereof, and thereafter shall use its reasonable
best efforts to cause to be declared effective within 180 days
after the date hereof, a Shelf
Registration Statement, covering all of the Registrable
Securities, and relating to the offer and sale of the Registrable
Securities, by the Holders of the Registrable Securities from time
to time in accordance with the methods of distribution set forth
in the Shelf Registration Statement.
(y) Following delivery of notice to the Holders in
accordance with Section 6(a), the Company may postpone for up to
90 days the filing or effectiveness of the Shelf Registration
Statement if in the good faith judgment of the Company, the filing
or effectiveness of the Shelf Registration Statement (A) would
reasonably be expected to have a material adverse effect on any
proposed financing, reorganization or recapitalization of the
Company or pending negotiations relating to a merger,
consolidation, acquisition or similar transaction or (B)
applicable securities laws would require the Company to disclose
material non-public information ("NON-PUBLIC INFORMATION") and the
disclosure of such Non-Public Information would materially and
adversely affect the business and operations of the Company;
provided, however, that immediately following such postponement,
the Company shall file or request effectiveness of the Shelf
Registration Statement.
(ii) (x) Subject to clause (y) below, the Company shall use
its reasonable best efforts to keep the Shelf Registration
Statement continuously effective in order to permit any prospectus
forming part thereof to be used by the Holders for a period ending
on the earlier of (A) the first date on which all the Registrable
Securities covered by such Shelf Registration Statement have been
sold pursuant thereto, (B) the first date on which all such
Registrable Securities can immediately be sold within a ninety day
period pursuant to Rule 144(e)(1)(i) under the Securities Act, (C)
the one-year anniversary of the effective date of the Shelf
Registration Statement or (D) the date upon which such Registrable
Securities cease to be outstanding (in any such case, such period
being called the "SHELF REGISTRATION EFFECTIVENESS PERIOD").
(y) The Company may, by notice given to the Holders in
accordance with Section 6(a), require such Holders not to make any
sale of Registrable Securities pursuant to the Shelf Registration
Statement if, in the good faith judgment of the Company, (A)
securities laws applicable to such sale would require the Company
to disclose Non-Public Information and (B) the disclosure of such
Non-Public Information would materially and adversely affect the
business or operations of the Company or any proposed financing,
reorganization or recapitalization of the Company or pending
negotiations relating to a merger, consolidation, acquisition or
similar transaction. In the event that sales under the Shelf
Registration Statement are suspended because of the obligation to
disclose Non-Public Information, the Company will notify the
Holders promptly in accordance with Section 6(a) upon such
Non-Public Information being included by the Company in a filing
with the Commission, being
2
otherwise disclosed to the public (other than through the actions
of the Holders) or ceasing to be material to the Company, and upon
such notice being given by the Company, the Holders shall again be
entitled to sell Registrable Securities pursuant to the Shelf
Registration Statement. Notwithstanding the foregoing, the right
of the Company pursuant to this clause (y) to require the Holders
to suspend sales under such Shelf Registration Statement shall not
extend for more than 90 total days in any rolling period of twelve
consecutive months during which the Registrable Securities are
saleable pursuant to a Registration Statement.
(iii) Notwithstanding any other provisions hereof, the
Company will use its reasonable best efforts to ensure that (A)
any Shelf Registration Statement and any amendment thereto and any
prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the
rules and regulations of the Commission thereunder, (B) any Shelf
Registration Statement and any amendment thereto, at the time each
become effective (in either case, other than with respect to
information included therein in reliance upon or in conformity
with information furnished in writing or confirmed in writing to
the Company by or on behalf of the Holders specifically for use
therein (the "HOLDER INFORMATION")), does not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and (C) any prospectus forming part of any
Shelf Registration Statement, and any supplement to such
prospectus (in either case, other than with respect to Holder
Information), as of the date of each, does not contain an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(iv) The Company will pay all Registration Expenses incurred
in connection with the Shelf Registration Statement.
(b) Registration Statement Form. A Shelf Registration Statement
shall be on such appropriate registration form promulgated by the Commission
as shall be selected by the Company and shall permit the disposition of such
Registrable Securities in accordance with the intended method or methods
specified in their request for such registration. If, during the period in
which the Company is obligated to maintain the Shelf Registration in effect,
the Company becomes qualified for registration on Form S-3 or any comparable
or successor form or forms for offers and sales by the Holders, then, the
Company may, in its discretion, terminate the Shelf Registration and
concurrently register the Registrable Securities on such short-form
registration statement. The obligations of the Company with respect to
maintenance of such registration statement and prospectus included therein
shall be subject to the terms of this Agreement and such new registration
statement shall be deemed to be a "Shelf Registration Statement" for purposes
of this Agreement.
3
2. REGISTRATION PROCEDURES.
If and whenever the Company is required to effect the registration of
any Registrable Securities under the Securities Act pursuant to Section 1,
the Company will use its reasonable best efforts to effect the registration
and sale of such Registrable Securities in accordance with the intended
method of disposition thereof. Without limiting the foregoing, the Company
in each such case will:
(a) As far in advance as reasonably practical before filing a
registration statement or any amendment thereto, the Company will furnish to
the Holders copies of reasonably complete drafts of all such documents
proposed to be filed (including exhibits), and the Holders shall have three
Business Days to object to any Holder Information contained therein and the
Company will make the corrections reasonably requested by the Holders with
respect to such information;
(b) Subject to Section 1(a)(ii) and paragraph (f) below, use its
reasonable best efforts to prepare and file with the Commission such
amendments and supplements to such registration statement and any prospectus
used in connection therewith as may be necessary to maintain the
effectiveness of such registration statement and to comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such registration statement, in accordance
with the intended methods of disposition thereof, until the Shelf
Registration Effectiveness Period has ended;
(c) promptly notify the Holders:
(i) when such registration statement or any prospectus used
in connection therewith, or any amendment or supplement thereto, has
been filed and, with respect to such registration statement or any
post-effective amendment thereto, when the same has become effective;
(ii) of the notification to the Company by the Commission of
the issuance of any stop order suspending the effectiveness of such
registration statement, or of any order preventing or suspending the use
of any preliminary prospectus; and
(iii) of the receipt by the Company of any notification with
respect to the suspension of the qualification or the exemption from
qualification of any Registrable Securities for sale under the
applicable securities or blue sky laws of any jurisdiction or the
initiation of any proceeding for such purpose;
(d) furnish to the Holders, not later than two Business Days after
filing with the Commission, such number of copies of the prospectus contained
in such registration statement (including any summary prospectus and
prospectus supplements) that has been declared effective and any other
prospectus filed under Rule 424 promulgated under the Securities Act relating
to the Holders' Registrable Securities
4
as such seller may reasonably request to facilitate the disposition of its
Registrable Securities;
(e) use its reasonable best efforts to register or qualify all
Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as each Holder
thereof shall reasonably request, to keep such registration or qualification
in effect for so long as such registration statement remains in effect, and
to take any other action which may be reasonably necessary or advisable to
enable such Holder to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such Holder, except that the Company shall
not for any such purpose be required (i) to qualify generally to do business
as a foreign corporation in any jurisdiction wherein it would not but for the
requirements of this paragraph (e) be obligated to be so qualified, (ii) to
subject itself to taxation in any such jurisdiction or (iii) to consent to
general service of process in any jurisdiction 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;
(f) promptly notify the Holders, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event, the existence of any condition or any information
becoming known as a result of which any prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and at the request
of the Holders promptly prepare and furnish to the Holders 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; provided, however,
the Company shall not be required to furnish such supplement or amendment at
any time that sales of Registrable Securities are suspended under the
circumstances described in Section 1(a)(ii)(y) for as long as such sales are
suspended;
(g) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
securityholders, as soon as reasonably practicable, an earnings statement of
the Company which complies with the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder;
(h) provide a transfer agent and a registrar for all Registrable
Securities covered by such registration statement not later than the
effective date of such registration statement; and
(i) provide a CUSIP number for all Registrable Securities not
later than the effective date of the Shelf Registration Statement.
5
The Company may require the Holders to furnish the Company with such
information and affidavits regarding the Holders and the distribution of such
securities as the Company may from time to time reasonably request in writing
in connection with such registration.
The Holders agree that upon receipt of any notice from the Company of
the happening of any event of the kind described in paragraph (f), each
Holders will forthwith discontinue such Holder's disposition of Registrable
Securities pursuant to the registration statement relating to such
Registrable Securities until the Holders' receipt of the copies of the
supplemented or amended prospectus contemplated by paragraph (f) and, if so
directed by the Company, will deliver to the Company or destroy all copies,
other than permanent file copies, then in such Holder's possession of the
prospectus relating to such Registrable Securities current at the time of
receipt of such notice.
3. HOLDBACK AGREEMENTS.
If and to the extent requested by the Managing Underwriter (such request
to be made at least five Business Days in advance of the beginning of the
holdback period), the Holders agree, to the extent permitted by law, not to
effect any public sale or distribution (including a sale under Rule 144) of
Common Stock, or securities convertible into or exchangeable or exercisable
for Common Stock, during the 90 days after the effective date of any
registration statement filed by the Company in connection with a primary
offering of Common Stock on behalf of the Company (or for such shorter period
of time as is sufficient and appropriate, in the opinion of the Managing
Underwriter, in order to complete the sale and distribution of the securities
included in such registration), whether or not the Holders participate in
such registration and the Holders shall sign a customary agreement with the
Managing Underwriter with respect to the matters set for above to the extent
requested by the Managing Underwriter. The restrictions in this Section 3
shall only apply to the Holders in connection with one registration statement
filed by the Company in connection with a primary offering of Common Stock on
behalf of the Company and only to the extent that all officers of the
Company, directors of the Company and all other affiliates of the Company
agree to the same restrictions.
4. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall, to the full
extent permitted by law, indemnify and hold harmless the Holders to the
extent the Registrable Securities are included in any registration statement
filed in connection with a Shelf Registration Statement, their directors,
officers, members and partners, and each other Person, if any, who controls
any such holder within the meaning of the Securities Act, against any losses,
claims, damages, expenses or liabilities (as actions or proceedings in
respect thereof), joint or several (together, "LOSSES"), to which such holder
or any such director, officer, member, partner or controlling Person may
become subject under the Securities Act or otherwise, insofar as such Losses
(or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact
6
contained in any such registration statement, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading and the Company will
reimburse the Holders and each such director, officer, member, partner and
controlling Person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending against any such Loss (or
action or proceeding in respect thereof); provided, however, that the Company
shall not be liable in any such case to the extent that any such Loss (or
action or proceeding in respect thereof) (i) is caused by or contained in any
information relating to the Holders furnished in writing to the Company by
the Holders expressly for use in such registration statement, preliminary,
final or summary prospectus contained therein, or any amendment or supplement
thereto, (ii) is caused by the failure of any Holder to deliver a copy of the
current prospectus simultaneously with or prior to such sale after the
Company has furnished such Holder with a sufficient number of copies of such
prospectus correcting such material misstatement or omission, (iii) arises in
respect of any offers to sell or sales made during any period when the
Holders are required to discontinue sales under Section 2(c)(ii) or (iii)
(and after the Holders have received notice as contemplated by Section
2(c)(ii) or (iii)), or (iv) is incurred as a result of such indemnitee's bad
faith, willful misconduct or gross negligence. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf
of the Holders or any such director, officer, member, partner or controlling
Person, and shall survive the transfer of such securities by such Holder to a
Permitted Successor.
(b) INDEMNIFICATION BY THE HOLDER. If Registrable Securities of the
Holders are included or are to be included in any registration statement
filed in connection with a Shelf Registration Statement, as a condition to
including Registrable Securities in such registration statement, the Holders
shall, to the full extent permitted by law, indemnify and hold harmless the
Company, its directors and officers, and each other Person, if any, who
controls the Company within the meaning of the Securities Act, against any
Losses to which the Company or any such director or officer or controlling
Person may become subject under the Securities Act or otherwise, insofar as
such Losses (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any such
registration statement, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or supplement thereto,
or any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein (in the case
of a prospectus, in the light of the circumstances under which they were
made) not misleading, if such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
information furnished or confirmed in writing to the Company by the Holders;
provided, however, that in no event shall any indemnity provided by the
Holders under this Section 4(b) exceed the net proceeds from the offering
received by the Holders. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Company or
any such director, officer, member, partner or controlling Person.
7
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an Indemnified
Party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding paragraph (a) or (b) of this Section 4,
such Indemnified Party will, if a claim in respect thereof is to be made
against an Indemnifying Party pursuant to such paragraphs, give written
notice to the latter of the commencement of such action, provided that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under the preceding
paragraphs of this Section 6, except to the extent that the Indemnifying
Party is actually prejudiced by such failure to give notice. In case any
such action is brought against an Indemnified Party, the Indemnifying Party
shall be entitled to participate in and to assume the defense thereof,
jointly with any other Indemnifying Party similarly notified to the extent
that it may wish, and after notice from the Indemnifying Party to such
Indemnified Party of its election so to assume the defense thereof, the
Indemnifying Party shall not be liable to such Indemnified Party for any
legal or other expenses subsequently incurred by the latter in connection
with the defense thereof other than reasonable costs of investigation;
provided that the Indemnified Party may participate in such defense at the
Indemnified Party's expense; and provided further that the Indemnified Party
(or Indemnified Parties) shall have the right to employ one counsel to
represent it (or them, collectively) if, in the reasonable judgment of the
Indemnified Party or Indemnified Parties, it is advisable for it (or them) to
be represented by separate counsel by reason of having legal defenses which
are different from or in addition to those available to the Indemnifying
Party, and in that event the reasonable fees and expenses of such one counsel
shall be paid by the Indemnifying Party. If the Indemnifying Party is not
entitled to, or elects not to, assume the defense of a claim, it will not be
obligated to pay the fees and expenses of more than one counsel for the
Indemnified Parties with respect to such claim. No Indemnifying Party shall
consent to entry of any judgment or enter into any settlement without the
consent of the Indemnified Party 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 of such claim or litigation.
No Indemnifying Party shall be subject to any liability for any settlement
made without its consent, which consent shall not be unreasonably withheld.
(d) CONTRIBUTION. If the indemnity and reimbursement obligation
provided for in any paragraph of this Section 4 is unavailable or
insufficient to hold harmless an Indemnified Party in respect of any Losses
(or actions or proceedings in respect thereof) referred to therein, then the
Indemnifying Party shall contribute to the amount paid or payable by the
Indemnified Party as a result of such Losses (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and the Indemnified Party on
the other hand in connection with the statements or omissions which resulted
in such Losses, as well as any other relevant equitable considerations. The
relative fault 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 the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The parties hereto agree that
it would not be just and equitable if contributions pursuant to this
paragraph were to be determined by pro rata
8
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the first sentence of this
paragraph. The amount paid by an Indemnified Party as a result of the Losses
referred to in the first sentence of this paragraph shall be deemed to
include any legal and other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any Loss which is the
subject of this paragraph.
No Indemnified Party guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from the Indemnifying Party if the Indemnifying Party was not
guilty of such fraudulent misrepresentation.
(e) INDEMNIFICATION PAYMENTS. The indemnification required by this
Section 4 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
Losses are incurred, provided that each Indemnified Party shall repay such
payments if and to the extent it shall be determined by a court of competent
jurisdiction that such recipient is not entitled to such payment.
5. DEFINITIONS.
Except as otherwise specifically indicated, the following terms will
have the following meanings for all purposes of this Agreement:
"AGREEMENT" means this Registration Rights Agreement, as the same shall
be amended from time to time.
"BANKRUPTCY CASE" has the meaning ascribed to it in the preamble.
"BANKRUPTCY CODE" has the meaning ascribed to it in the preamble.
"BANKRUPTCY COURT" has the meaning ascribed to it in the preamble.
"BUSINESS DAY" means a day other than Saturday, Sunday or any other day
on which banks located in the State of New York are authorized or obligated
to close.
"COMMISSION" means the United States Securities and Exchange Commission,
or any successor governmental agency or authority.
"COMMON STOCK" means shares of Common Stock, par value $0.001 per share,
of the Company, as constituted on the date hereof, and any stock into which
such Common Stock shall have been changed or any stock resulting from any
reclassification of such Common Stock.
"COMPANY" has the meaning ascribed to it in the preamble.
9
"CONFIRMATION ORDER" has the meaning ascribed to it in the preamble.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"HOLDERS" has the meaning ascribed to it in the preamble.
"HOLDER INFORMATION" has the meaning ascribed to it in Section 1(a)(iii).
"INDEMNIFIED PARTY" means a party entitled to indemnity in accordance
with Section 4.
"INDEMNIFYING PARTY" means a party obligated to provide indemnity in
accordance with Section 4.
"INITIAL HOLDERS" has the meaning ascribed to it in the preamble.
"LOSSES" has the meaning ascribed to it in Section 4(a).
"MANAGING UNDERWRITER" means, with respect to any Public Offering, the
underwriter or underwriters managing such Public Offering.
"NASD" means the National Association of Securities Dealers, Inc.
"PERSON" means any natural person, corporation, general partnership,
limited partnership, limited liability company, proprietorship, other
business organization, trust, union or association.
"PLAN" has the meaning ascribed to it in the preamble.
"PUBLIC OFFERING" means any offering of Common Stock to the public,
either on behalf of the Company or any of its securityholders, pursuant to an
effective registration statement under the Securities Act.
"REGISTRABLE SECURITIES" means (i) the Shares held by the Holders, and
(ii) any additional shares of Common Stock issued or distributed to the
Holders by way of a dividend, stock split, conversion, or other distribution
in respect of the Shares, or acquired by way of any rights offering or
similar offering made in respect of the Shares. As to any particular
Registrable Securities, such securities shall cease to be Registrable
Securities when (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
Registrable Securities shall have been disposed of in accordance with such
registration statement, (ii) they shall have been sold pursuant to Rule 144,
or (iii) they shall have ceased to be outstanding.
10
"REGISTRATION EXPENSES" means all expenses incident to the Company's
performance of or compliance with its obligations under this Agreement to
effect and maintain the registration of Registrable Securities in any Shelf
Registration Statement, including, without limitation, all registration,
filing, securities exchange listing and NASD fees (including Nasdaq fees, if
applicable), all registration, filing, qualification and other fees and
expenses of complying with securities or blue sky laws, all word processing,
duplicating and printing expenses, messenger and delivery expenses, the fees
and disbursements of counsel for the Company (but not for the Holders), the
fees and disbursements of the Company's independent public accountants,
including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance in connection with
an underwritten offering and any fees and disbursements of underwriters
customarily paid by issuers or holders of securities, but excluding
underwriting discounts and commissions and transfer taxes, if any, in respect
of Registrable Securities, which shall be payable by each holder thereof.
"RULE 144" means Rule 144 promulgated by the Commission under the
Securities Act, and any successor provision thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SHARES" has the meaning ascribed to it in the preamble.
"SHELF REGISTRATION EFFECTIVENESS PERIOD" has the meaning ascribed to it
in Section 1(a).
"SHELF REGISTRATION STATEMENT" means a registration statement of the
Company in compliance with the provisions of Section 1(a)(i) and Section 1(b)
of this Agreement which registers the continuous offer and sale of all of the
Registrable Securities on an appropriate form under Rule 415 under the
Securities Act or any similar or successor rule that may be adopted by the
Commission, and all amendments to such registration statement, including
post-effective amendments, in each case including any prospectus contained
therein and any supplement to any such prospectus, all exhibits thereto and
all information incorporated by reference therein.
6. MISCELLANEOUS.
(a) NOTICES. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only
if delivered personally or by facsimile transmission or mailed (registered or
certified mail, postage prepaid) to the parties at the following addresses or
facsimile numbers:
11
If to Holders, a single notice delivered to:
Third Point LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Chief Financial Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to the Company, to:
Xxxxxx International, Inc.
0000 Xxxx Xxxx Xxx
Xxxxxx XX 00000-0000
Attn: Chief Financial Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
All such notices, requests and other communications will (i) if
delivered personally to the address as provided in this Section, be deemed
given upon delivery, (ii) if delivered by facsimile transmission to the
facsimile number as provided in this Section, be deemed given when sent by
confirmed facsimile if sent during normal business hours of the recipient, if
not, then on the next Business Day, and (iii) if delivered by mail in the
manner described above to the address as provided in this Section, be deemed
given five days after deposit with the United States Post Office (in each
case regardless of whether such notice, request or other communication is
received by any other Person to whom a copy of such notice is to be delivered
pursuant to this Section). Any party from time to time may change its
address, facsimile number or other information for the purpose of notices to
that party by giving notice specifying such change to the other parties
hereto.
(b) ENTIRE AGREEMENT. This Agreement supersedes all prior
discussions and agreements between the parties with respect to the subject
matter hereof, and contains the sole and entire agreement between the parties
hereto with respect to the subject matter hereof.
(c) AMENDMENT. This Agreement may be amended, supplemented or
modified only by a written instrument (which may be executed in any number of
counterparts) duly executed by or on behalf of each of the Company and the
Holder.
(d) WAIVER. Any term or condition of this Agreement may be waived
at any time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No
waiver by any party of any term or condition of this Agreement, in any one or
more instances, shall be deemed to be or
12
construed as a waiver of the same term or condition of this Agreement on any
future occasion.
(e) CONSENTS BY HOLDERS OF REGISTRABLE SECURITIES. Any consent of
the Holders pursuant to this Agreement shall be in writing.
(f) NO THIRD PARTY BENEFICIARY. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors. It is not the intention of the parties to confer
third-party beneficiary rights upon any other Person other than any Person
entitled to indemnity under Section 4.
(g) SUCCESSORS AND ASSIGNS. This Agreement is binding upon,
inures to the benefit of and is enforceable by the Company and the Holders
and their respective successors; neither party may assign its rights and
obligations hereunder without the prior written consent of the other party
hereto; provided, further, that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Securities in
violation of the terms hereof, the Securities Act or any securities or blue
sky laws of any jurisdiction.
(h) HEADINGS. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
(i) INVALID PROVISIONS. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under any present or future law,
and if the rights or obligations of any party hereto under this Agreement
will not be materially and adversely affected thereby, (i) such provision
will be fully severable, (ii) this Agreement will be construed and enforced
as if such illegal, invalid or unenforceable provision had never comprised a
part hereof and (iii) the remaining provisions of this Agreement will remain
in full force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom.
(j) REMEDIES. Except as otherwise expressly provided for herein,
no remedy conferred by any of the specific provisions of this Agreement is
intended to be exclusive of any other remedy, and each and every remedy shall
be cumulative and shall be in addition to every other remedy given hereunder
or now or hereafter existing at law or in equity or by statute or otherwise.
The election of any one or more remedies by any party hereto shall not
constitute a waiver by any such party of the right to pursue any other
available remedies.
Damages in the event of breach of this Agreement by a party hereto would
be difficult, if not impossible, to ascertain, and it is therefore agreed
that each such Person, in addition to and without limiting any other remedy
or right it may have, will have the right to an injunction or other equitable
relief in any court of competent jurisdiction, enjoining any such breach, and
enforcing specifically the terms and provisions hereof and the Company and
the Holder hereby waives any and all defenses it
13
may have on the ground of lack of jurisdiction or competence of the court to
grant such an injunction or other equitable relief. The existence of this
right will not preclude any such Person from pursuing any other rights and
remedies at law or in equity which such Person may have.
(k) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
(l) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
[Signatures on next page.]
14
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officer of each party hereto as of the date first
above written. "COMPANY"
XXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------
Title: Xxxxxx X. Xxxxxx
-------------------------
"HOLDERS"
Third Point Advisors LLC, General Partner
of Third Point Partners Qualified L.P. and
Third Point Partners L.P.
By: /s/Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
--------------------------
Title: Chief Financial Officer
-------------------------
Third Point LLC, Investment Manager to
Third Point Offshore Fund Ltd. and Third
Point Ultra Ltd.
By: /s/Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
--------------------------
Title: Chief Financial Officer
-------------------------
15
