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Exhibit (e)
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of ________ __, 2000 by and
among Perini Corporation, a Massachusetts corporation (together with its
successors, the "Company"), Xxxxx-Xxxxxx Corporation, a California corporation
("TSC"), Xxxxxx X. Tutor ("RNT"), National Union Fire Insurance Company of
Pittsburgh, PA, a Pennsylvania corporation ("National Union"), and O&G
Industries, Inc., a Connecticut corporation (("O&G"), XXXX Capital Partners,
L.P., a California limited partnership ("XXXX"), PB Capital Partners, L.P., a
Delaware limited partnership ("PB Capital"), The Common Fund for Non-Profit
Organizations, a New York non-profit corporation ("The Common Fund"), and The
Union Labor Life Insurance Company, a Maryland corporation acting on behalf of
its Separate Account P ("ULLICO" and collectively with TSC, RNT, AIG, O&G, XXXX
and PB Capital the "Shareholders").
WHEREAS, pursuant to the terms and conditions of the Securities
Purchase Agreement dated as of February 5, 2000 (the "Securities Purchase
Agreement"), among the Company and the Shareholders, TSC, National Union and O&G
shall acquire shares of common stock, par value $1.00 per share, of the Company
on the Closing (as defined in the Securities Purchase Agreement), in the amounts
set forth opposite each name on Exhibit 2.01 thereto;
WHEREAS, pursuant to the terms of certain exchange agreements dated as
of _________ __, 2000, between the Company and certain holders of the Company's
Series B Preferred Stock, such holders have agreed to exchange their Series B
Preferred Stock for Common Stock of the Company; and
WHEREAS, the Company has agreed with the Shareholders to provide
certain rights as set forth herein.
NOW THEREFORE, for valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Unless otherwise defined herein, the
following terms used in this Agreement shall have the meanings specified below.
(a) "XXXX" has the meaning set forth in the introductory paragraph
hereof.
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(b) "Business Day" means any day except a Saturday, Sunday or other day
on which commercial banks in New York City are required or authorized by law to
close.
(c) "The Common Fund" has the meaning set forth in the introductory
paragraph hereof.
(d) "Common Stock" means the common stock, par value $1.00 per share,
of the Company.
(e) "Company" has the meaning set forth in the introductory paragraph
hereof.
(f) "Deferral Period" means the period during which the Company has
elected to postpone the sale or other transfer of Registrable Securities by the
holders thereof pursuant to the applicable terms of Article 2 of this Agreement
or any other period during which a stop order or other order suspending the
effectiveness of a Registration Statement is in effect.
(g) "Effectiveness Period" means the period commencing on the date
hereof and ending on the date that all Shares shall have ceased to be
Registrable Securities.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor Federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time. Reference
to a particular section of the Securities Exchange Act of 1934 shall include a
reference to the comparable section, if any, of any such successor Federal
statute.
(i) "Managing Underwriters" means the investment banking firm or firms
that shall manage or co-manage an Underwritten Offering.
(j) "National Union" has the meaning set forth in the introductory
paragraph hereof.
(k) "Notice Holder" means a holder of Registrable Securities who has
given notice of the intention to distribute such holder's Registrable Securities
in accordance with Section 2.1(d), 2.2 or 2.3, as the case may be.
(l) "O&G" has the meaning set forth in the introductory paragraph
hereof.
(m) "PB Capital" has the meaning set forth in the introductory
paragraph hereof.
(n) "Person" means an individual, a corporation, a partnership, a
limited liability partnership, a limited liability company, an association, a
trust or any other entity
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or organization, including a government or political subdivision or an agency or
instrumentality thereof.
(o) "Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
Registration Statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
(p) "Public Sale" means any sale of Shares to the public pursuant to an
offering registered under the Securities Act or to the public through a broker,
dealer or market maker pursuant to the provisions of Rule 144 (or any successor
provision then in effect) adopted under the Securities Act.
(q) "Registrable Securities" means Shares until the date (if any) when
(i) such Shares shall have been sold or transferred pursuant to a Public Sale,
and transferred or exchanged and new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company or (ii) if
requested to do so, the Company would be required to deliver certificates for
such Shares not bearing a legend restricting further transfer (other than
legends required under Section 2.06 of the Shareholders' Agreement, if
applicable), and, in each case, subsequent sale or other disposition of such
Shares shall not require registration or qualification under the Securities Act
or any similar state or foreign law then in force.
(r) "Registration Statement" means any registration statement of the
Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
amendments and supplements to such Prospectus, all exhibits, and all information
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
(s) "Restricted Securities" means the Shares; provided that particular
Shares shall cease to be Restricted Securities when such securities shall have
(x) been sold or transferred pursuant to a Public Sale, or (y) been otherwise
transferred or exchanged and new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration or qualification
of them under the Securities Act or any similar state law then in force or (z)
ceased to be outstanding.
(t) "RNT" has the meaning set forth in the introductory paragraph
hereof.
(u) "Rule 144" means Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
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(v) "Rule 144A" means Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
(w) "SEC" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
(x) "Securities Act" means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Act of 1933 shall include a reference to
the comparable section, if any, of any such similar Federal statute.
(y) "Securities Purchase Agreement" has the meaning set forth in the
recitals.
(z) "Selling Period" means the period during which a holder of
Registrable Securities shall be entitled to sell its Shares pursuant to a
Prospectus under the applicable provision of Article 2 of this Agreement.
(aa)"Shares" means shares of Common Stock of the Company (including
shares of Common Stock issued from time to time on conversion or exchange of
securities of the Company), currently held, or subsequently acquired, by a
Shareholder or transferee of, or successor to, a Shareholder, as adjusted for
any other shares of Common Stock or securities issued in respect of such shares
or securities because of stock splits, reverse stock splits, stock dividends,
reclassifications, recapitalizations, merger, consolidation, share exchange or
similar events.
(bb)"Shareholders" has the meaning set forth in the introductory
paragraph hereof.
(cc)"Shareholders' Agreement" means that certain Shareholders'
Agreement dated even date herewith among the Shareholders and the Company.
(dd)"Special Counsel" means any law firm retained from time to time by
the holders of a majority of the Registrable Securities to be sold pursuant to a
Registration Statement or during any Selling Period, as shall be specified by
such holders to the Company; provided that at no time there shall be more than
one Special Counsel the fees and expenses of which will be paid by the Company
pursuant to Section 2.4.
(ee)"ULLICO" has the meaning set forth in the introductory paragraph
hereof.
(ff)"Underwritten Offering" means a registration in which Registrable
Securities are sold or to be sold to one or more underwriters for reoffering to
the public.
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Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
---- -------
"Demand Holders" 2.2(a)
"Demand Registration" 2.2(a)
"Filing Date" 2.1(a)
"Initial Shelf Registration" 2.1(a)
"Initiating Holders" 2.1(a)
"Piggyback Registration" 2.3(a)
"Saleable Number" 3.1(a)
"Shelf Registration" 2.1(a)
"Subsequent Shelf Registration" 2.1(b)
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 Shelf Registration.
(a) As soon as practicable but in any event not later than the date
(the "Filing Date") that is thirty (30) days, in the case of a Registration
Statement on Form S-3 (or successor or replacement form) and sixty (60) days, in
the case of a Registration Statement on Form S-1 (or other available form),
after receipt by the Company of a written request by the holder or holders of a
___% of the Registrable Securities (the "Initiating Holders"), the Company shall
prepare and file with the SEC a Registration Statement for an offering to be
made on a delayed or continuous basis pursuant to Rule 415 of the Securities Act
(a "Shelf Registration") registering the resale from time to time by the holders
of all of the Registrable Securities (the "Initial Shelf Registration"). The
Registration Statement for any Shelf Registration shall be on Form S-3 or
another available form permitting registration of such Registrable Securities
for resale by such holders in the manner or manners designated by them
(including, without limitation, one or more Underwritten Offerings). The Company
shall use all commercially reasonable best efforts to cause the Initial Shelf
Registration to become effective under the Securities
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Act as promptly as is practicable and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the end of the
Effectiveness Period.
(b) If the Initial Shelf Registration or any Subsequent Shelf
Registration (as defined below) ceases to be effective for any reason at any
time during the Effectiveness Period (other than because all Registrable
Securities shall have been sold or shall have ceased to be Registrable
Securities), the Company shall use all commercially reasonable best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within thirty days of such cessation of effectiveness
amend the Shelf Registration in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional Shelf Registration covering all of the Registrable Securities (a
"Subsequent Shelf Registration"). If a Subsequent Shelf Registration is filed,
the Company shall use all commercially reasonable best efforts to cause the
Subsequent Shelf Registration to become effective as promptly as is practicable
after such filing and to keep such Registration Statement continuously effective
until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf Registration if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration, if required
by the Securities Act, or if reasonably requested by any holder of the
Registrable Securities covered by such Registration Statement or by any Managing
Underwriter of such Registrable Securities.
(d) Each holder of Registrable Securities agrees that if it wishes to
sell any Registrable Securities pursuant to a Shelf Registration and related
Prospectus, it will do so only in accordance with this Section 2.1(d). Each
holder of Registrable Securities agrees to give written notice to the Company at
least six (6) Business Days prior to any intended distribution of Registrable
Securities under the Shelf Registration, which notice shall specify the date on
which such holder intends to begin such distribution and any information with
respect to such holder and the intended distribution of Registrable Securities
by such holder required to amend or supplement the Registration Statement with
respect to such intended distribution of Registrable Securities by such holder;
provided that no holder may give such notice unless such notice, together with
notices given by other holders of Registrable Securities joining in such notice
or giving similar notices, covers at least ___________ Shares. As promptly as is
practicable after the date such notice is provided, and in any event within five
(5) Business Days after such date, the Company shall either:
(i) (A) prepare and file with the SEC a post-effective
amendment to the Shelf Registration or a supplement to the related
Prospectus or a supplement or amendment to any document incorporated
therein by reference or any other required document, so that such
Registration Statement will not contain any 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
so that, as thereafter delivered to purchasers of the Registrable
Securities being sold thereunder, such Prospectus will not contain any
untrue statement of a material
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fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; (B) provide each Notice
Holder a copy of any documents filed pursuant to Section 2.1(d)(i)(A);
and (C) inform each Notice Holder that the Company has complied with
its obligations in Section 2.1(d)(i)(A) and that the Registration
Statement and related Prospectus may be used for the purpose of selling
all or any of such Registrable Securities (or that, if the Company has
filed a post-effective amendment to the Shelf Registration which has
not yet been declared effective, the Company will notify each Notice
Holder to that effect, will use all commercially reasonable best
efforts to secure the effectiveness of such post-effective amendment
and will immediately so notify each Notice Holder when the amendment
has become effective); each Notice Holder will sell all or any of such
Registrable Securities pursuant to the Shelf Registration and related
Prospectus only during the sixty (60) day period in the case of
registration on Form S-3, or the ninety (90) day period in the case of
registration on any other form available for registration, commencing
with the date on which the Company gives notice (such sixty (60) or
ninety (90) day period, as the case may be, to be calculated without
regard to any Deferral Period), pursuant to Section 2.1(d)(i)(C), that
the Registration Statement and Prospectus may be used for such purpose;
each Notice Holder agrees that it will not sell any Registrable
Securities pursuant to such Registration Statement or Prospectus after
such Selling Period without giving a new notice of intention to sell
pursuant to Section 2.1(d) hereof and receiving a further notice from
the Company pursuant to Section 2.1(d)(i)(C) hereof; or
(ii) if, in the judgment of the Company, it is advisable to
suspend use of the Prospectus for a period of time due to pending
material corporate developments or similar material events that have
not yet been publicly disclosed and as to which the Company believes
public disclosure will be prejudicial to the Company, the Company shall
deliver a certificate in writing, signed by its Chief Executive
Officer, Chief Financial Officer or General Counsel, to the Notice
Holders, the Special Counsel and the Managing Underwriters, if any, to
the effect of the foregoing and, upon receipt of such certificate, each
such Notice Holder's Selling Period will not commence until such Notice
Holder's receipt of copies of the supplemented or amended Prospectus
provided for in Section 2.1(d)(i)(A) hereof, or until it is advised in
writing by the Company that the Prospectus may be used, and has
received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus.
The Company will use all commercially reasonable best efforts to ensure
that the use of the Prospectus may be resumed, and the Selling Period
will commence, upon the earlier of (x) public disclosure of such
pending material corporate development or similar material event or (y)
a determination by the Company that, in the judgment of the Company,
public disclosure of such material corporate development or similar
material event would not be prejudicial to the Company. Notwithstanding
the foregoing, the Company shall not under any circumstances be
entitled to exercise its right under Section 2.1(d)(ii) to defer the
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commencement of a Selling Period more than one time in any three
(3)-month period or two times in any twelve (12)-month period, and the
period in which a Selling Period is suspended shall not exceed fifteen
(15) days unless the Company shall deliver to such Notice Holders a
second certificate to the effect set forth above, which shall have the
effect of extending the period during which such Selling Period is
deferred by up to an additional fifteen (15) days, or such shorter
period of time as is specified in such second certificate. In no event
shall the Company be permitted to extend the period during which such
Selling Period is deferred from and after the date a Notice Holder
provides notice to the Company in accordance with Section 2.1(d)(ii) of
its intention to distribute Registrable Securities beyond such thirty
(30)-day period.
SECTION 2.2 Demand Registration.
(a) At any time during the Effectiveness Period, any holder or holders
of Registrable Securities (the "Demand Holders") may request in writing that the
Company file a Registration Statement under the Securities Act covering the
registration of all or a portion of the Registrable Securities then held by the
Demand Holders (a "Demand Registration"). After the date on which the Company
receives such a request, the Company shall use all commercially reasonable best
efforts (i) to file a Registration Statement under the Securities Act on the
appropriate form (using Form S-3 or other "short form," if available and advised
by counsel) covering all of the Registrable Securities specified by the holders
within forty-five (45) days after the date of such request (thirty (30) days in
the case of a Form S-3) and (ii) to cause such Registration Statement to be
declared effective within sixty (60) days (forty-five (45) days in the case of a
Form S-3) after the filing referenced in clause (i) above. The Company will keep
the Demand Registration current and effective for at least one hundred twenty
(120) days (such one hundred twenty (120) day period to be calculated without
regard to any Deferral Period), or a shorter period during which the holders
shall have sold all Registrable Securities covered by the Demand Registration.
(b) In the event a holder of Registrable Securities makes a demand to
register pursuant to Section 2.2 and later determines not to sell Registrable
Securities pursuant to such registration, the Company shall cease all efforts to
secure registration for such holder's Registrable Securities and shall take all
action necessary to prevent the commencement of effectiveness for any
registration that it is preparing or has prepared in connection with the
withdrawn request, and such holder's Demand Registration shall be reinstated as
if never exercised; provided, however, that such holder withdrawing such demand
shall pay all of the costs and expenses incurred by the Company in connection
with such withdrawn demand, unless the withdrawal is a result of a breach by the
Company of its obligations under this Agreement.
(c) National Union shall be entitled to two (2) Demand Registrations
pursuant to Section 2.2, provided that it shall not be entitled to exercise more
than one (1) Demand Registrations during any twelve (12) month period. TSC, O&G,
ULLICO and XXXX (together with The Common Fund and PB Capital) shall each have
one (1) Demand Registration right pursuant to Section 2.2.
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(d) Notwithstanding the provisions of Section 2.2, if the Company is
requested to file any registration under Section 2.2:
(i) The Company shall have the right to defer the filing
of a Registration Statement relating to a Demand Registration
during the ninety (90) days following the effective date of any
other Registration Statement pertaining to an underwritten public
offering of securities for the account of the Company or security
holders of the Company or such earlier date as such distribution
shall be completed; or
(ii) The Company shall have the right to defer the filing
after receipt of the Demand Holders request or if a Registration
Statement relating to a Demand Registration has already been
filed, the Company may cause the Registration Statement to be
withdrawn and its effectiveness to be terminated, or may postpone
amending or supplementing the Registration Statement, until the
Board of Directors determines that the circumstances requiring the
withdrawal or postponement no longer exist, if, in the judgment of
the Company, (i) it is advisable to suspend use of the Prospectus
for a period of time due to pending material corporate
developments or similar material events that have not yet been
publicly disclosed and as to which the Company believes public
disclosure will be prejudicial to the Company or (ii) the Board of
Directors of the Company determines in good faith that there is a
valid business purpose or reason for delaying such filing or
effectiveness. The Company shall deliver a certificate in writing,
signed by its Chief Executive Officer, Chief Financial Officer or
General Counsel, to the holders of Registrable Securities, the
Special Counsel and the Managing Underwriters, if any, to the
effect of the foregoing and, upon receipt of such certificate,
each such holder's Selling Period will not commence until such
holder's receipt of copies of a supplemented or amended
Prospectus, or until it is advised in writing by the Company that
the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus. The Company will use
all commercially reasonable best efforts to ensure that the use of
the Prospectus may be resumed, and the Selling Period will
commence, upon the earlier of (x) public disclosure of such
pending material corporate development or similar material event
or (y) a determination by the Company that, in the judgment of the
Company, public disclosure of such material corporate development
or similar material event would not be prejudicial to the Company.
Notwithstanding the foregoing, the Company shall not under any
circumstances be entitled to exercise its right under this Section
2.2(d)(ii) to defer the commencement of a Selling Period more than
sixty (60) days during any twelve (12)-month period.
(e) A Demand Registration shall not count as such until a Registration
Statement becomes effective; provided, that if, after it has become effective,
the offering pursuant to the Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC or any other
governmental authority, such registration shall be deemed not to have been
effected unless such stop order, injunction or other order shall
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subsequently have been vacated or otherwise removed within fifteen (15) days of
the imposition thereof.
(f) The Demand Holders shall select the underwriter or underwriters
(including Managing Underwriter) of any offering pursuant to a Demand
Registration, subject to the approval of the Company, which approval shall not
be unreasonably withheld.
SECTION 2.3 Piggyback Registration.
(a) Subject to applicable stock exchange rules and securities
regulations, at least thirty (30) days prior to any public offering of any of
its capital stock of the Company for the account of the Company or any other
Person (other than a Registration Statement on Form S-4 or S-8 (or any successor
forms under the Securities Act), relating solely to employee benefit plans or
any transaction governed by Rule 145 of the Securities Act or Registration
Statement filed pursuant to the Shelf Registration under Section 2.1 of this
Agreement or any substantially comparable shelf registration right granted by
the company to any shareholder not a party to this Agreement), the Company shall
give written notice of such proposed filing and of the proposed date thereof to
the holders and if, on or before the twentieth (20th) day (or such earlier day
specified if registration is for the account of any other Person) following the
date on which such notice is given, (i) a Registration Statement covering the
sale of all of the Registrable Securities is not then effective and available
for sales thereof by the holders and (ii) the Company shall receive written
requests from any holders of Registrable Securities requesting that the Company
include among the securities covered by such Registration Statement any or all
of the Registrable Securities for offering, specifying the amount of Registrable
Securities that such holder intends to sell and such holder's intended method of
distribution, the Company shall include such Registrable Securities in such
Registration Statement, if filed, so as to permit such Registrable Securities to
be sold or disposed of in the manner and on the terms of the offering thereof
set forth in such request. Each such registration shall hereinafter be called a
"Piggyback Registration." The Company shall select the underwriter or
underwriters, including Managing Underwriter, of any offering pursuant to a
Registration Statement filed pursuant to this Section 2.3, provided that any
selected underwriter shall be a well-recognized firm in good standing of
national reputation.
(b) Upon receipt of a request for Piggyback Registration, the Company
shall use all commercially reasonable best efforts to cause all Registrable
Securities which the Company has been requested to register to be registered
under the Securities Act to the extent necessary to permit their sale or other
disposition in accordance with the intended methods of distribution specified in
the request of such Holder; provided, however, that the Company shall have the
right, prior to the effective date of the Registration Statement, to postpone or
withdraw such a registration effected pursuant to this Section 2.3 without
obligation to the holders, other than the Company's obligation to pay the
expenses incurred by the holders in connection with the registration; provided,
further, that if the registration is pursuant to a Demand Registration, the
Company shall only have the right to defer the registration in accordance with
Section 2.2(d). In the event a holder of Registrable Securities makes a demand
to register pursuant to this Section 2.3 and later determines not to sell
Registrable
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Securities pursuant to such registration, the Company shall cease all efforts to
secure registration for such holder's Registrable Securities.
(c) If such registration being effected pursuant to a Piggyback
Registration is a Company registration or a registration pursuant to an
underwritten offering, the shares of Common Stock available for sale shall be
allocated in accordance with Article III of this Agreement.
(d) No registration effected under Section 2.3 shall relieve the
Company of its obligation to effect a demand registration under Section 2.2, nor
shall any registration under this Section 2.3 be deemed to have been effected
under Section 2.2.
ARTICLE III
UNDERWRITERS' CUTBACK
SECTION 3.1 Underwriter's Cutback.
(a) If, in connection with any underwritten public offering for the
account of the Company, the Managing Underwriter(s) thereof shall impose a
limitation on the number of shares of Common Stock (the "Saleable Number") which
may be included in the Registration Statement that is less than all of the
shares of Common Stock sought to be registered because, in such Managing
Underwriter(s)' commercially reasonable judgment, marketing or other factors
dictate such limitation is necessary to facilitate public distributions, then
the number of shares of Common Stock offered shall be limited to the Saleable
Number. The Company will promptly so advise each holder of Registrable
Securities that has requested registration, and will include shares of Common
Stock in such registration in the following order of priority: (A) the shares of
Common Stock the Company desires to include in such registration up to the total
number of shares sought to be registered; (B) the Registrable Securities that
the holders desire to include in such registration up to the total sought to be
registered; and (C) the balance of securities, if any, to be registered by other
holders of the Company's Common Stock to the extent such security holders have
piggyback registration rights and have sought to include their securities in
such registration, in each case until the aggregate number of shares of Common
Stock included in such registration is equal to the number thereof that, in the
opinion of such Managing Underwriter(s), can be sold without adversely affecting
the marketability thereof.
(b) If, in connection with any underwritten public offering for the
account of any security holder of the Company exercising its demand registration
right (other than the holder of Registrable Securities), the Saleable Number
which may be included in the Registration Statement is less than all of the
shares of Common Stock sought to be registered because, in the Managing
Underwriter(s)' commercially reasonable judgment, marketing or other factors
dictate such limitation is necessary to facilitate public distributions, then
the number of securities offered shall be limited to the Saleable Number. The
Company will promptly so advise each holder of Registrable Securities that has
requested registration, and will include
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in such registration in the following order of priority: (A) the shares of
Common Stock sought to be registered by holders of the Company's Common Stock
who have exercised their demand registration right (to the extent the holders
exercising such rights possessed such rights prior to the date hereof); (B) the
Registrable Securities that the holders desire to include in such registration
up to the total sought to be registered and the shares of Common Stock sought to
be registered by holders of the Company's Common Stock who have exercised their
demand registration right (to the extent the holders exercising such rights
obtained such rights on or after the date hereof); (C) any securities to be
registered for the account of the Company together with the balance of
securities, if any, to be registered by other holders of the Company's Common
Stock to the extent such security holders have piggyback registration rights and
have sought to include their securities in such registration, in each case until
the aggregate number of shares of Common Stock included in such registration is
equal to the number thereof that, in the opinion of such Managing
Underwriter(s), can be sold without adversely affecting the marketability
thereof.
(c) If, in connection with any underwritten public offering for the
account of the holders of Registrable Securities pursuant to their Demand
Registration right, as the case may be, the Saleable Number which may be
included in the Registration Statement is less than all of the shares of Common
Stock sought to be registered because, in such underwriter(s)' commercially
reasonable judgment, marketing or other factors dictate such limitation is
necessary to facilitate public distributions, then the Company will promptly so
advise each holder of Registrable Securities that has requested registration,
and will include in such registration in the following order of priority: (A)
the Registrable Shares that the holders who have exercised their Demand
Registration right desire to include in such registration; (B) the shares of
Registrable Securities sought to be registered by holders exercising their
Piggyback Registration rights; and (C) any securities to be registered for the
account of the Company together with the balance of securities, if any, to be
registered by other holders of the Company's Common Stock to the extent such
security holders have piggyback registration rights and have sought to include
their securities in such registration, in each case until the aggregate number
of shares of Common Stock included in such registration is equal to the number
thereof that, in the opinion of such Managing Underwriter(s), can be sold
without adversely affecting the marketability thereof.
(d) If the number of shares of Common Stock that the Managing
Underwriter(s) advise the Company can be registered is less than all of the
Registrable Securities that the holders have sought to register each holder
requesting registration pursuant to rights granted under this Agreement shall be
allocated the number of Registrable Securities eligible for registration pro
rata in proportion to the number of Registrable Securities sought to be
registered under the applicable Registration Statement without regard to the
securities held by holders who have not sought registration.
ARTICLE IV
REGISTRATION PROCEDURES
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SECTION 4.1 Registration Procedures. In connection with the Company's
registration obligations under Article II hereof, the Company shall effect such
registrations to permit the sale of the Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Company shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on the form specified in this Agreement or, if no form
has been specified, on any appropriate form under the Securities Act available
for the sale of the Registrable Securities by the holders thereof in accordance
with the intended method or methods of distribution thereof, and use all
commercially reasonable best efforts to cause each such Registration Statement
to become effective and remain effective as provided herein; provided, that
before filing any such Registration Statement or Prospectus or any amendments or
supplements thereto (other than documents that would be incorporated or deemed
to be incorporated therein by reference and that the Company is required by
applicable securities laws or stock exchange requirements to file) the Company
shall furnish to the holders of Registrable Securities, the Special Counsel and
the Managing Underwriters of such offering, if any, copies of all such documents
proposed to be filed, which documents will be subject to the review of the
holders of Registrable Securities, the Special Counsel and such Managing
Underwriters, and the Company shall not file any such Registration Statement or
amendment thereto or any Prospectus or any supplement thereto (other than such
documents which, upon filing, would be incorporated or deemed to be incorporated
by reference therein and that the Company is required by applicable securities
laws or stock exchange requirements to file) to which the holders of a majority
of the Registrable Securities covered by such Registration Statement or the
Special Counsel shall reasonably object in writing within two full Business Days
after receipt of such materials.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in Article 2; cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the Securities Act; and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement during the applicable
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or such
Prospectus as so supplemented.
(c) Notify the selling holders of Registrable Securities, the Special
Counsel and the Managing Underwriters, if any, promptly, and (if requested by
any such person) confirm such notice in writing, (i) when a Prospectus, any
Prospectus supplement, a Registration Statement, an amendment or a
post-effective amendment to a Registration Statement has been filed with the
SEC, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the SEC or
any other federal or state governmental authority for amendments or supplements
to a Registration Statement or related Prospectus or for additional
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information, and of the contents of such request, (iii) of the issuance by the
SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) 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 or threatening of any proceeding for such
purpose, (v) of the existence of any fact or happening of any event which makes
any statement of a material fact in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue or which would require the making of any changes in the
Registration Statement or Prospectus in order that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact or omit 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, provided that the
Company shall not be required to disclose such fact or event if such fact or
event has not been, and is not required to be, publicly disclosed, and (vi) of
the Company's determination that a post-effective amendment to a Registration
Statement or supplement to a Prospectus would be appropriate.
(d) Use all commercially reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of a Registration
Statement, or the lifting of any suspension of the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment.
(e) If reasonably requested by a holder of Registrable Securities, the
Special Counsel, the Managing Underwriters, if any, or requested by the holders
of a majority of the Registrable Securities being sold, (i) promptly incorporate
in a Prospectus supplement or amendment or post-effective amendment to a
Registration Statement such information as the holders of Registrable
Securities, the Special Counsel, the Managing Underwriters, if any, or such
holders, in connection with any offering of Registrable Securities, agree should
be included therein as required by applicable law, and (ii) make all required
filings of such Prospectus supplement or such amendment or post-effective
amendment as promptly as is practicable after the Company has received
notification of the matters to be incorporated in such Prospectus supplement or
post-effective amendment; provided, that the Company shall not be required to
take any actions under this Section 4.1(e) that are not, in the reasonable
opinion of counsel for the Company, in compliance with or required by applicable
law.
(f) Furnish to each selling holder of Registrable Securities, the
Special Counsel, and each Managing Underwriter, if any, without charge, at least
one conformed copy of the Registration Statement or Statements and any amendment
thereto, including financial statements but excluding schedules, all documents
incorporated or deemed to be
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incorporated therein by reference and all exhibits (unless requested in writing
by such holder, Special Counsel or Managing Underwriter).
(g) Deliver to each selling holder of Registrable Securities, the
Special Counsel, and each Managing Underwriter, if any, in connection with any
offering of Registrable Securities, without charge, as many copies of the
Prospectus or Prospectuses relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto as such
persons may reasonably request; and the Company hereby consents to the use of
such Prospectus or each amendment or supplement thereto by each of the selling
holders of Registrable Securities and the underwriters, if any, in connection
with any offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to register
or qualify or cooperate with the selling holders of Registrable Securities, the
Managing Underwriters, if any, and the Special Counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling holder or Managing Underwriter reasonably requests in writing to the
Company; keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the applicable Registration Statement; provided, that the Company
will not be required to (i) qualify generally to do business in any jurisdiction
where it is not then so qualified or (ii) take any action that would subject it
to general service of process in suits or to taxation in any such jurisdiction
where it is not then so subject.
(i) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States, except as may be
required solely as a consequence of the nature of a selling holder of
Registrable Securities, in which case the Company will cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals, as may be necessary to enable the selling holder or
holders thereof or the Managing Underwriters, if any, to consummate the
disposition of such Registrable Securities.
(j) During any Selling Period (other than during a Deferral Period),
immediately upon the existence of any fact or the occurrence of any event as a
result of which a Registration Statement shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or a Prospectus
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, promptly notify the holders, Special Counsel and any Managing
Underwrite to discontinue use of such Registration Statement; promptly prepare
and file
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an amendment or post-effective amendment to each Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by
reference or file any other required document (such as a Current Report on Form
8-K) that would be incorporated by reference into the Registration Statement so
that the Registration Statement shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and so that the
Prospectus will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, use all commercially
reasonable best efforts to cause it to become effective as promptly as is
practicable.
(k) Enter into such agreements (including, in the event of an
Underwritten Offering, an underwriting agreement in form, scope and substance as
is customary in Underwritten Offerings) and take all such other actions in
connection therewith (including, in the event of an underwritten offering, those
reasonably requested by the Managing Underwriters, if any, or the holders of a
majority of the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into, and if the
registration is an underwritten registration, (i) make such representations and
warranties, subject to the Company's ability to do so, to the holders of such
Registrable Securities and the underwriters with respect to the business of the
Company and its subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if any,
in each case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Managing Underwriters, if any, Special Counsel and the
holders of a majority of the Registrable Securities being sold) addressed to
each of the underwriters covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such Special Counsel and Managing Underwriters; (iii) obtain
"comfort" letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other certified public
accountants of any subsidiary of the Company or any business acquired or to be
acquired by the Company for which financial statements and financial data is, or
is required to be, included in the Registration Statement), addressed to each of
the Managing Underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "comfort" letters in
connection with Underwritten Offerings; and (iv) deliver such documents and
certificates as may be reasonably requested by the holders of a majority of the
Registrable Securities being sold, the Special Counsel and the Managing
Underwriters, if any, to evidence the continued validity of the representations
and warranties of the Company and its subsidiaries made pursuant to clause (i)
above and to evidence compliance with any
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customary conditions contained in the underwriting agreement or other agreement
entered into by the Company.
(l) If requested in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, make available for inspection
by a representative of the holders of Registrable Securities being sold, any
Managing Underwriter participating in any disposition of Registrable Securities,
if any, and any attorney or accountant retained by such selling holders or
underwriter, financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries, and cause the executive
officers, directors and employees of the Company and its subsidiaries to supply
all information reasonably requested by any such representative, Managing
Underwriter, attorney or accountant in connection with such disposition; subject
to reasonable written assurances by each such person that such information will
only be used in connection with matters relating to such Registration Statement.
(m) Comply with all applicable rules and regulations of the SEC and
make generally available to its security holders earning statements (which need
not be audited) satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder (or any similar rule promulgated under the Securities
Act) no later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Securities are
sold to underwriters in a firm commitment or best efforts underwritten offering,
and (ii) if not sold to underwriters in such an offering, commencing on the
first day of the first fiscal quarter of the Company commencing after the
effective date of a Registration Statement, which statements shall cover said
12-month periods.
(n) Cooperate with the selling holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations and registered in
such names as the selling holders may request.
(o) Use all commercially reasonable best efforts to provide a CUSIP
number for the Registrable Securities not later than the effective date of the
registration.
(p) Cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange or quotation system on which
the Company's Common Stock is then listed no later than the date the
Registration Statement is declared effective and, in connection therewith, to
the extent applicable, to make such filings under the Exchange Act (e.g., the
filing of a Registration Statement on Form 8-A) and to have such filings
declared effective thereunder.
(q) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
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(r) Provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such registration statement from and
after a date not later than the effective date of such Registration Statement.
ARTICLE V
HOLDER'S OBLIGATIONS
SECTION 5.1. Holder's Obligations.
(a) Each holder of Registrable Securities agrees, by becoming an owner
or transferee of any Registrable Securities, that no holder of Registrable
Securities shall be entitled to sell any of such Registrable Securities pursuant
to a Registration Statement or to receive a Prospectus relating thereto, unless
such holder has furnished the Company with any applicable notice required
pursuant to Article 2 hereof (including the information required to accompany
such notice) and, promptly after the Company's request, such other information
regarding such holder and the distribution of such Registrable Securities as the
Company may from time to time reasonably request. The Company may exclude from
such registration the Registrable Securities of any holder who does not furnish
such information provided above for so long as such information is not so
furnished. Each holder of Registrable Securities as to which any Registration
Statement is being effected agrees promptly to furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such holder not misleading. Any sale of any
Registrable Securities by any holder shall constitute a representation and
warranty by such holder that the information relating to such holder and its
plan of distribution is as set forth in the Prospectus delivered by such holder
in connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating to
such holder or its plan of distribution and that such Prospectus does not as of
the time of such sale omit to state any material fact relating to such holder or
its plan of distribution necessary to make the statements in such Prospectus, in
light of the circumstances under which they were made, not misleading.
(b) The Company agrees (x) that if any holder of Registrable Securities
shall send a written notice to the Company of an intended distribution of
Registrable Securities under the Shelf Registration pursuant to Section 2.1(d)
or the Demand Registration pursuant to Section 2.2, the Company shall not sell,
make any short sale of, loan, grant any option for the purchase of, effect any
public sale or distribution of or otherwise dispose of its equity securities or
securities convertible into or exchangeable or exercisable for any of such
securities during the period from first day of the applicable Selling Period
until the date that is 90 days after the date when such holder shall have made
such distribution of Registrable Securities under the Shelf Registration or
Demand Registration, as the case may be, as the holder or Managing Underwriter
(in the case of an Underwritten Offering) shall advise the Company (provided,
that if the holder or Managing Underwriter shall fail to advise the Company of
any such date prior to the end
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of the applicable Selling Period, such period shall end on the last day of the
applicable Selling Period), except (i) as part of such registration, (ii)
pursuant to registrations on Form S-4 or S-8 or any successor or similar forms
thereto or (iii) as otherwise permitted by the Managing Underwriter of such
offering (if any), and (y) to use all commercially reasonable best efforts to
cause each holder of its equity securities or any securities convertible into or
exchangeable or exercisable for any of such securities, in each case purchased
from the Company at any time after the date of this Agreement (other than in a
public offering) to agree not to sell, make any short sale of, loan, grant any
option for the purchase of, effect any public sale or distribution of or
otherwise dispose of such securities during such period except as part of such
underwritten registration; provided, that no holder of Registrable Securities
included in any underwritten registration shall be required to make any
representations or warranties to the Company or the underwriters other than
representations and warranties regarding such holder and such holder's intended
method of distribution.
(c) During any Selling Period (other than during a Deferral Period),
immediately upon the existence of any fact or the occurrence of any event as a
result of which a Registration Statement shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or a Prospectus
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, upon being notified by the Company promptly discontinue use of such
Registration Statement until the Company in accordance with its obligations
under this Agreement prepares and files an amendment or post-effective amendment
to each Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
(such as a Current Report on Form 8-K) that would be incorporated by reference
into the Registration Statement so that the Registration Statement shall not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and so that the Prospectus will not contain any untrue statement
of a material fact or omit to state any material fact or omit 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, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder.
(d) Deliver to prospective investors and investors copies of the
Prospectus or Prospectuses relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto in
accordance with the Securities Act and applicable state securities laws.
ARTICLE VI
EXPENSES
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SECTION 6.1 Registration Expenses. All fees and expenses incident to
the Company's performance of or compliance with this Agreement shall be borne by
the Company whether or not any of the Registration Statements become effective.
Such fees and expenses shall include, without limitation, (i) all registration
and filing fees (including, without limitation, fees and expenses (x) with
respect to filings required to be made with the National Association of
Securities Dealers, Inc. and (y) with respect to compliance with federal
securities or Blue Sky laws (including, without limitation, fees and
disbursements of Special Counsel in connection with Blue Sky qualifications of
the Registrable Securities laws of such jurisdictions as the Managing
Underwriters, if any, or holders of a majority of the Registrable Securities
being sold may designate)), (ii) printing expenses (including, without
limitation, expenses of printing certificates for Registrable Securities in a
form eligible for deposit with The Depositary Trust Company and of printing
Prospectuses if the printing of Prospectuses is requested by the Special Counsel
or the holders of a majority of the Registrable Securities included in any
Registration Statement), (iii) messenger, telephone and delivery expenses, (iv)
reasonable fees and disbursements of counsel for the Company and the Special
Counsel in connection with the Registration, (v) fees and disbursements of all
independent certified public accountants (including the expenses of any special
audit and "comfort" letters required by or incident to such performance) and
(vi) Securities Act liability insurance obtained by the Company in its sole
discretion. In addition, the Company shall pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
interim review of financial statements, the fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange on which similar securities issued by the Company are then listed and
the fees and expenses of any person, including special experts, retained by the
Company. Notwithstanding the provisions of this Section 6.1, each seller of
Registrable Securities shall pay all registration expenses to the extent the
Company is prohibited by applicable Blue Sky laws from paying for or on behalf
of such seller of Registrable Securities.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 Company Indemnification. The Company agrees to indemnify
and hold harmless each holder of Registrable Securities whose Registrable
Securities are covered by any Registration Statement, its directors and officers
and each other Person, if any, who controls such holder within the meaning of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which any such indemnified party may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (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 Registration Statement
under which such securities were registered under the Securities Act, any
preliminary
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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 not misleading, and the Company will reimburse each such
indemnified party for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such Registration Statement, any such preliminary Prospectus,
final Prospectus, summary Prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of such holder specifically for use in the preparation thereof. In
addition, the Company shall indemnify any underwriter of such offering and each
other Person, if any, who controls any such underwriter within the meaning of
the Securities Act in substantially the same manner and to substantially the
same extent as the indemnity herein provided to each Indemnified Party. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such holder or any such director, officer, underwriter
or controlling person and shall survive the transfer of such securities by such
holder.
SECTION 7.2 Seller Indemnification. Each prospective seller of
Registrable Securities hereunder severally, and not jointly, shall indemnify and
hold harmless (in the same manner and to the same extent as set forth in Section
7.1) the Company, each director of the Company, each officer of the Company and
each other person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such Registration Statement, any preliminary
Prospectus, final Prospectus or summary Prospectus contained therein, or any
amendment or supplement thereof, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by or on behalf of such seller
specifically for use in the preparation of such Registration Statement,
preliminary Prospectus, final Prospectus, summary Prospectus or amendment or
supplement. Any 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 or controlling person and shall survive the transfer of such securities
by such seller. The amount payable by any prospective seller of Registrable
Securities with respect to the indemnification set forth in this Section 7.2 in
connection with any offering of Registrable Securities will not exceed the
amount of the gain realized by such prospective seller pursuant to such
offering.
SECTION 7.3 Indemnification Procedure. 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 sections of this Article VII,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, 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 sections of this Article VII,
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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, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim, 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 the indemnifying party
may wish, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume 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. No indemnifying
party shall, without the consent of the indemnified party, consent to entry of
any judgment or enter into any settlement of any such action 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. No indemnified party shall consent to entry of any judgment
or enter into any settlement of any such action the defense of which has been
assumed by an indemnifying party without the consent of such indemnifying party.
SECTION 7.4 Remedies.
(a) If the indemnification provided for in Section 7.1 or 7.2, as the
case may be, is unavailable to an indemnified party in respect of any expense,
loss, claim, damage or liability referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such expense,
loss, claim, damage or liability (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
holder or underwriter, as the case may be, on the other from the distribution of
the Registrable Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the holder or
underwriter, as the case may be, on the other in connection with the statements
or omissions which resulted in such expense, loss, damage or liability, as well
as any other relevant equitable considerations. The relative fault of the
Company on the one hand and of the holder or underwriter, as the case may be, on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission to state a
material fact relates to information supplied by the Company, by the holder or
by the underwriter and parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, that the foregoing contribution agreement shall not inure to the
benefit of any indemnified party if indemnification would be unavailable to such
indemnified party by reason of the proviso contained in the first sentence of
subdivision (a) of this Section 7.4, and in no event shall the obligation of any
indemnifying party to contribute under this subdivision (d) exceed the amount
that such indemnifying party would have been obligated to pay by way of
indemnification if the indemnification provided for under subdivisions (a) or
(b) of this Section 2.5 had been available under the circumstances.
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(b) The Company and the holders of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this Section 7.4
were determined by pro rata allocation (even if the holders and any underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in the immediately preceding paragraph (a). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim.
(c) Notwithstanding the other provisions of this Section 7.4, no holder
of Registrable Securities or underwriter shall be required to contribute any
amount in excess of the amount by which (i) in the case of any such holder, the
gain realized by such holder from the sale of Registrable Securities or (ii) in
the case of an underwriter, the total price at which the Registrable Securities
purchased by it and distributed to the public were offered to the public
exceeds, in any such case, the amount of any damages that such holder or
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
ARTICLE VIII
REPORTS
SECTION 8.1 Rule 144; Rule 144A; Form S-3.
(a) The Company will file all reports required to be filed by it under
the Securities Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder and will take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (b) any similar rule or regulation hereafter adopted by
the SEC. Upon the request of any holder of Registrable Securities, the Company
will deliver to such holder a written statement as to whether it has complied
with such requirements. The Company further covenants that it will cooperate
with any holder of Registrable Securities and take such further reasonable
action as any holder of Registrable Securities may reasonably request
(including, without limitation, making such reasonable representations as any
such holder may reasonably request), all to the extent required from time to
time to enable such holder to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144 and Rule 144A, as applicable, under the Securities Act.
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(b) For so long as any shares of Registrable Securities are Restricted
Securities within the meaning of Rule 144(a)(3) under the Securities Act, the
Company covenants and agrees that it shall, during any period in which it is not
subject to Section 13 or 15(d) of the Exchange Act, make available to any holder
of Registrable Securities in connection with the sale by such holder of
Registrable Securities and any prospective purchaser of Registrable Securities
from such, in each case upon request, the information specified in, and meeting
the requirements of, Rule 144A(d)(4) under the Securities Act.
(c) The Company shall file the reports required to be filed by it under
the Exchange Act and shall comply with all other eligibility requirements for
use of Form S-3 set forth in the instructions to Form S-3 (other than
Registration Requirement A.5).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein and all legal process in
regard hereto shall be validly given, made or served, if in writing and
delivered personally, by telecopy (except for legal process) or sent by
registered mail, postage prepaid, if to:
The Company:
Perini Corporation
00 Xx. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Band, President
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
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TSC and RNT:
Xxxxx-Xxxxxx Corp.
00000 Xxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxx X. Tutor
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
National Union:
c/o AIG Global Investment Corp.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxxxx X. Xxx
Xxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
American International Group, Inc.
Law Department
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxxxx
Facsimile: (000) 000-0000
O&G:
O&G Industries, Inc.
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
Xxxxxxx Xxxx
Facsimile: (000) 000-0000
with a copy to:
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00
Xxxxxx, Xxxxxxx, Xxxxxxx & Xxxxxx
000 Xxxxxx Xxxxxx
City Place I
Hartford, Connecticut 06103-3469
Attn: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
XXXX:
XXXX Capital Partners, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
PB Capital:
c/o BLUM Capital Partners, L.P.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
The Common Fund:
x/x XXXX Xxxxxxx Xxxxxxxx, X.X.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
ULLICO:
The Union Labor Life Insurance Company
000 Xxxxxxxxxxxxx Xxxxxx, X.X.
Washington, D.C. 2001
Attn: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
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Facsimile: (000) 000-0000
or to such other address or facsimile number as any party may, from time to
time, designate in a written notice given in a like manner.
SECTION 9.2 Binding Nature of Agreement. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto or their successors in interest, except as expressly otherwise provided
herein.
SECTION 9.3 Descriptive Headings. The descriptive headings of the
several sections and paragraphs of this Agreement are inserted for reference
only and shall not limit or otherwise affect the meaning hereof.
SECTION 9.4 Specific Performance. Without limiting the rights of each
party hereto to pursue all other legal and equitable rights available to such
party for the other parties' failure to perform their obligations under this
Agreement, the parties hereto acknowledge and agree that the remedy at law for
any failure to perform their obligations hereunder would be inadequate and that
each of them, respectively, shall be entitled to specific performance,
injunctive relief or other equitable remedies in the event of any such failure.
SECTION 9.5 Governing Law; Consent to Jurisdiction . This Agreement
shall be governed by and construed and enforced in accordance with the internal
laws of the State of New York. Each of the parties hereto irrevocably submits to
the personal exclusive jurisdiction of the United States District Court for the
Southern District of New York for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby
(and, to the extent permitted under applicable rules of procedure, agrees not to
commence any action, suit or proceeding relating hereto except in such court).
Each of the parties further agree that service of any process, summons, notice
or document hand delivered or sent by registered mail to such party's respective
address set forth in Section 9.1 will be effective service of process for any
action, suit or proceeding in New York with respect to any matters to which it
has submitted to jurisdiction as set forth in the immediately preceding
sentence. Each of the parties hereto irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby in the United States
District Court for the Southern District of New York, and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in such
court that any such action, suit or proceeding brought in such court has been
brought in an inconvenient forum.
SECTION 9.6 WAIVER OF JURY TRIAL. EACH OF PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 9.7 Limitations on Damages. Each party hereto acknowledges
that, except as provided in this Agreement, no party is entitled to seek or
recover consequential,
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punitive or exemplary damages in respect of this Agreement under any
circumstances or for any reason. Consequential damages are, without limitation,
lost profits, lost revenue and the like but do not include the actual costs
incurred in obtaining substitute performance where there has been a failure to
perform an obligation under any provision of this Agreement.
SECTION 9.8 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such which may be hereafter declared invalid, void or
unenforceable.
SECTION 9.9 Amendments to Laws. Any reference to a section, form, rule
or regulation of the Securities Act or Exchange Act, includes any successor
section, form, rule, regulation or law.
SECTION 9.10 Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
SECTION 9.11 Entire Agreement. Each party expressly acknowledges and
agrees that this Agreement is the final expression of the parties agreement, and
supercede all prior and contemporaneous agreements and understandings, both oral
and written, among the parties, with respect to the subject matter hereof.
Except as set forth in this Agreement, the Securities Purchase Agreement and the
Shareholders' Agreement, the parties hereto acknowledge that they are not
parties to, and have no knowledge of, any agreements or understandings, both
oral and written, to act in concert or as a group (including, without
limitation, as a group within the meaning of Section 13(d) of the Exchange Act),
or otherwise act together, with respect to the Company or its securities.
SECTION 9.12 Amendment and Waiver. No provision of this Agreement may
be waived except by an instrument in writing signed by the party against whom
the waiver is to be effective. No provision of this Agreement may be amended or
modified except by an instrument in writing signed by holders of a majority of
Registrable Securities or as otherwise provided in this Agreement, provided,
that no such amendment may adversely affect the rights of any holder of
Registrable Securities unless signed by such holder.
SECTION 9.13 No Third Party Beneficiaries. Nothing in this Agreement
shall convey any rights upon any person or entity which is not a party or a
transferee of or successor to a party to this Agreement.
SECTION 9.14 Effectiveness. This Agreement shall become effective
immediately at such time when Closing under the Securities Purchase Agreement
shall occur.
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SECTION 9.15 No Prior Agreements; No Inconsistent Agreements.
(a) The Company, XXXX, The Common Fund, PB Capital and ULLICO hereby
agree that this Registration Rights Agreement supercedes and replaces all prior
agreements between or among those Persons relating to registration rights.
(b) The Company has not entered into and will not enter into any
registration rights agreement or similar arrangements the performance by the
Company of the terms of which would in any manner conflict with, restrict or be
inconsistent with the performance by the Company of its obligations under this
Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each party hereto have caused this Agreement to be
duly executed by its authorized officer as of the day and year first above
written.
PERINI CORPORATION
By:________________________
Name:______________________
Title:_______________________
XXXXX-XXXXXX CORPORATION
By:__________________________
Name: _______________________
Title:_________________________
XXXXXX X. TUTOR
------------------------------
Xxxxxx X. Tutor
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
By:_____________________________
Name:___________________________
Title:__________________________
O&G INDUSTRIES, INC.
By:_____________________________
Name:__________________________
Title:__________________________
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XXXX CAPITAL PARTNERS, L.P.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: Xxxxxxx X. Xxxx & Associates, Inc.,
its general partner
By: _________________________
Name: Xxxxxx X. Xxxxxx
Title: Partner, General Counsel
and Secretary
PB CAPITAL PARTNERS, L.P.
(Signatory for the purposes set forth in the
Introductory Paragraph of this Agreement only)
By: XXXX Capital Partners, L.P.,
its general partner
By: Xxxxxxx X. Xxxx &
Associates, Inc.,
its general partner
By: ____________________
Name: Xxxxxx X. Xxxxxx
Title: Partner, General
Counsel and
Secretary
THE COMMON FUND FOR NON-PROFIT
ORGANIZATIONS (Signatory for the
purposes set forth in the
Introductory Paragraph of this Agreement only)
By: XXXX Capital Partners, L.P., its
investment advisor
By: Xxxxxxx X. Xxxx &
Associates, Inc.,
its general partner
By: __________________
Name: Xxxxxx X. Xxxxxx
Title: Partner, General
Counsel and
Secretary
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THE UNION LABOR LIFE INSURANCE
COMPANY, acting for its SEPARATE
ACCOUNT P (Signatory for the
purposes set forth in the
Introductory Paragraph of this
Agreement only)
By:____________________________
Name:__________________________
Title:___________________________
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