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Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
Among
THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
MONY FINANCIAL SERVICES CORPORATION
and
THE INVESTORS NAMED HEREIN
Dated as of December 30, 1997
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REGISTRATION RIGHTS AGREEMENT
This AGREEMENT is made as of December 30, 1997, among The Mutual Life
Insurance Company of New York, a New York mutual life insurance company (the
"Company"), MONY Financial Services Corporation, a Delaware corporation (the
"Holding Company"), and the purchasers of Warrants identified on Schedule 1
hereto (the "Investors").
WHEREAS, the Holding Company has agreed to issue and sell, and the
Investors have agreed to purchase, pursuant to the Investment Agreement, dated
as of December 30, 1997 (the "Investment Agreement"), among the Company, the
Holding Company and the Investors, the Warrants and certain other securities of
the Company and the Holding Company, subject to the terms and conditions set
forth in the Investment Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein and in the Investment Agreement, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and subject to and on the terms and conditions herein set forth,
the parties hereto agree as follows:
1. Definitions.
Except as otherwise specified herein, capitalized terms used herein but
not defined herein have the meanings assigned to them in the Investment
Agreement, as in effect on the date hereof. In addition, for purposes of this
Agreement, the following terms have the following respective meanings:
"Holding Company Common Stock Equivalents" means any securities
convertible into, or exercisable or exchangeable for, shares of Holding Company
Common Stock, including the Warrants and the Convertible Preferred Stock.
"Holder" means any Investor or any of its Subsidiaries or Affiliates
which as of the date hereof or hereafter shall hold Registrable Securities or
Convertible Preferred Stock.
"Major Holder" means with respect to any registration the Holder that
is deemed to have included the largest number of shares of Holding Company
Common Stock in such registration. In the case of Warrants, the number of shares
of Holding Company Common Stock deemed to be included by a Holder shall be the
number of shares of Holding Company Common Stock issuable upon exercise of the
Warrants being included in such registration.
"Registrable Securities" means (i) the Warrants held by any Holder,
(ii) all shares of Holding Company Common Stock issuable upon exercise of any
Warrant held by any Holder and (iii) the shares of Holding Company Common Stock
issuable upon conversion of any
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Convertible Preferred Stock held by any Holder. 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
been declared effective under the Securities Act and such securities shall have
been disposed of in accordance with such registration statement, or (ii) such
securities shall have been sold to a Person not a Holder pursuant to Rule 144
(or any successor provision) under the Securities Act and in compliance with the
requirements of paragraphs (f) and (g) of Rule 144 (notwithstanding the
provisions of paragraph (k) of such Rule) (or any successor provision).
"S-1", "S-2" and "S-3" mean a registration statement on Form X-0, X-0
and S-3, respectively.
Unless the context otherwise requires, any reference to a statute, rule or
regulation refers to the same (including any successor statute, rule or
regulation thereto) as it may be amended from time to time.
2. Registration Rights.
2.1. Demand Registrations.
(a) (i) Subject to Sections 2.1(b) and 2.3 below, at any
time and from time to time after the Demutualization Date each Holder shall have
the right to require the Holding Company to file a registration statement under
the Securities Act covering all or any part of their respective Registrable
Securities, by delivering a written request therefor to the Holding Company
specifying the number of Registrable Securities to be included in such
registration by such Holder and the intended method of distribution thereof. All
such requests by any Holder pursuant to this Section 2.1(a)(i) are referred to
herein as "Demand Registration Requests," and the registrations so requested are
referred to herein as "Demand Registrations" (with respect to any Demand
Registration, the Holder(s) making such demand for registration being referred
to as the "Initiating Holder"). As promptly as practicable, but no later than
ten days after receipt of a Demand Registration Request, the Holding Company
shall give written notice (the "Demand Exercise Notice") of such Demand
Registration Request to all Holders of record of Registrable Securities and
Convertible Preferred Stock.
(ii) The Holding Company, subject to Sections 2.3 and
2.6, shall include in a Demand Registration (x) the Registrable Securities of
the Initiating Holder and (y) the Registrable Securities of any other Holder
which shall have made a written request to the Holding Company for inclusion in
such registration (which request shall specify the maximum number of Registrable
Securities intended to be disposed of by such Holder) within 15 Business Days
after the receipt of the Demand Exercise Notice (or, 10 Business Days if, at the
request of the Initiating Holder, the Holding Company states in such written
notice or gives
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telephonic notice to all Holders, with written confirmation to follow promptly
thereafter, that such registration will be on an S-3).
(iii) The Holding Company shall, as expeditiously as
possible, use its commercially reasonable efforts to (x) effect such
registration under the Securities Act (including, without limitation, by means
of a shelf registration pursuant to Rule 415 under the Securities Act if so
requested and if the Holding Company is then eligible to use such a
registration) of the Registrable Securities which the Holding Company has been
so requested to register, for distribution in accordance with such intended
method of distribution, and (y) if requested by the Initiating Holder, obtain
acceleration of the effective date of the registration statement relating to
such registration.
(b) The Demand Registration rights granted in Section 2.1(a)
to the Holders are subject to the following limitations: (i) each registration
in respect of a Demand Registration Request must include, in the aggregate
(based on the Holding Company Common Stock or shares of Holding Company Common
Stock issuable pursuant to Holding Company Common Stock Equivalents included in
such registration by all Holders and all holders of Additional Piggyback Rights
(as defined below) participating in such registration), shares of Holding
Company Common Stock having, in the aggregate, a fair market value immediately
prior to such registration of at least $50 million; (ii) the Holding Company
shall not be required to cause a registration pursuant to Section 2.1(a)(i) to
be declared effective within a period of 180 days after the date either (A) any
other registration statement of the Holding Company declared effective pursuant
to a Demand Registration Request was declared effective or (B) the registration
statement relating to the IPO was declared effective; (iii) the Holding Company
shall not be required to effect, in the aggregate, without regard to the Holder
of Registrable Securities making such request, more than three Demand
Registrations; (iv) the Holding Company may postpone filing a registration
statement relating to a Demand Registration Request for a reasonable period of
time, but not more than 120 days after receipt of the Demand Registration
Request, as is necessary to prepare audited financial statements of the Holding
Company for its most recently completed fiscal year or unaudited quarterly
financial statements reasonably required in the registration statement (and in
no event shall the Holding Company be required to prepare such quarterly
financial statements for use in the initial filing of a registration statement
to be filed more than 90 days after the end of the quarter in question); and (v)
if the Board of Directors of the Holding Company, in its good faith judgment,
determines that any registration of Registrable Securities should not be made or
continued because it would materially interfere with any material financing,
acquisition, corporate reorganization or merger or other transaction involving
the Holding Company or any of its subsidiaries (a "Valid Business Reason"), (x)
the Holding Company may postpone filing a registration statement relating to a
Demand Registration Request until such Valid Business Reason no longer exists,
but in no event for more than 90 days, and (y) in case a registration statement
has been filed relating to a Demand Registration Request, the Holding Company
may cause such registration statement to be withdrawn and its effectiveness
terminated or may
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postpone amending or supplementing such registration statement until such Valid
Business Reason no longer exists, but in no event for more than 90 days (such
period of postponement or withdrawal under subclause(s) (x) or (y) of this
clause (v), the "Postponement Period"); and the Holding Company shall give
written notice of its determination to postpone or withdraw the registration
statement and of the fact that the Valid Business Reason for such postponement
or withdrawal no longer exists, in each case, promptly after the occurrence
thereof; provided, however, the Holding Company shall not be permitted to
postpone or withdraw the registration statement filed in response to a Demand
Registration Request after the expiration of any Postponement Period until 12
months after the expiration of such Postponement Period, except pursuant to
request of the Initiating Holder.
If the Holding Company shall give any notice of postponement or withdrawal
of any registration statement, the Holding Company shall not, during the period
of postponement or withdrawal, register any Holding Company Common Stock, other
than pursuant to a registration statement on Form S-4 or S-8 (or an equivalent
registration form then in effect) or other applicable form with respect to any
benefit plan or with respect to any dividend reinvestment plan. Each Holder of
Registrable Securities agrees that, upon receipt of any notice from the Holding
Company that the Holding Company has determined to withdraw any registration
statement pursuant to clause (v) above, such Holder will discontinue its
disposition of Registrable Securities pursuant to such registration statement
and, if so directed by the Holding Company, will deliver to the Holding Company
(at the Holding Company's expense) all copies, other than permanent file copies,
then in such Holder's possession of the prospectus covering such Registrable
Securities that was in effect at the time of receipt of such notice. If the
Holding Company shall have withdrawn or prematurely terminated a registration
statement filed under Section 2.1(a)(i) (whether pursuant to clause (v) above or
as a result of any stop order, injunction or other order or requirement of the
SEC or any other governmental agency or court), the Holding Company shall not be
considered to have effected an effective registration for the purposes of this
Agreement until the Holding Company shall have filed a new registration
statement covering the Registrable Securities covered by the withdrawn
registration statement and such registration statement shall have been declared
effective and shall not have been withdrawn or prematurely terminated. If the
Holding Company shall give any notice of withdrawal or postponement of a
registration statement, the Holding Company shall, at such time as the Valid
Business Reason that caused such withdrawal or postponement no longer exists
(but in no event later than 90 days after the date of the postponement or
withdrawal), use its commercially reasonable efforts to effect the registration
under the Securities Act of the Registrable Securities covered by the withdrawn
or postponed registration statement in accordance with this Section 2.1 (unless
the Initiating Holder shall have withdrawn such request, in which case the
Holding Company shall not be considered to have effected an effective
registration for the purposes of this Agreement), and such registration shall
not be withdrawn or postponed pursuant to clause (v) above.
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In the event that a Demand Registration Request is made and
then later withdrawn by the Initiating Holder (other than a withdrawal in
connection with a postponement or withdrawal made pursuant to clause (v) above),
the Holding Company shall be considered to have effected an effective
registration unless it is reimbursed for any out-of-pocket expenses incurred in
connection with such Demand Registration.
(c) The Holding Company, subject to Sections 2.3 and 2.6, may
elect to include in any registration statement and offering made pursuant to
Section 2.1(a)(i), (i) authorized but unissued shares of Holding Company Common
Stock, Holding Company Common Stock held by the Holding Company as treasury
shares or, if the Major Holder consents, other Holding Company equity securities
and (ii) any other shares of Holding Company Common Stock which are requested to
be included in such registration pursuant to the exercise of piggyback
registration rights granted by the Holding Company after the date hereof which
are not inconsistent with the rights granted in, or otherwise conflict with the
terms of, this Agreement ("Additional Piggyback Rights"); provided, however,
that such inclusion shall be permitted only to the extent that it is pursuant to
and subject to the terms of the underwriting agreement or arrangements, if any,
entered into by the Initiating Holder.
(d) In connection with any Demand Registration, the Initiating
Holder shall have the right to designate the managing underwriter for such
registration, provided that such managing underwriter is reasonably satisfactory
to the Holding Company. To the extent required by applicable law, a Qualified
Independent Underwriter (as defined in Conduct Rule 2720 of the National
Association of Securities Dealers, Inc.) shall be retained, and the Holding
Company shall pay all fees and expenses of such Qualified Independent
Underwriter, as such, unless the Holding Company shall have requested the
Initiating Holder to designate a co-managing underwriter that would be a
Qualified Independent Underwriter and the Initiating Holder shall not have
complied with such request, in which case the participating Holders shall pay
all fees and expenses of such Qualified Independent Underwriter.
2.2. Piggyback Registrations.
(a) If, at any time, the Holding Company proposes or is
required to register any of its equity securities under the Securities Act
(other than pursuant to (i) registrations on such form or similar form(s) solely
for registration of securities in connection with an employee benefit plan or
dividend reinvestment plan or acquisition or (ii) a Demand Registration under
Section 2.1) on an X-0, X-0 or S-3 (or an equivalent general registration form
then in effect), whether or not for its own account, the Holding Company shall
give prompt written notice of its intention to do so to each of the Holders of
record of Registrable Securities and Convertible Preferred Stock. Such notice
shall specify, at a minimum, the number and class of securities so proposed to
be registered, the proposed date of filing of such registration statement, any
proposed means of distribution of such securities and any proposed managing
underwriter or underwriters of such securities. Upon the written request of any
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Holder, made within 15 Business Days following the receipt of any such written
notice (which request shall specify the maximum number of Registrable Securities
intended to be disposed of by such Holder and the intended method of
distribution thereof), the Holding Company shall, subject to Sections 2.2(b),
2.3 and 2.6 hereof, use its commercially reasonable efforts to cause all such
Registrable Securities, the Holders of which have so requested the registration
thereof, to be registered under the Securities Act (with the securities which
the Holding Company at the time proposes to register) to permit the sale or
other disposition by the Holders (in accordance with the intended method of
distribution thereof) of the Registrable Securities to be so registered. There
is no limitation on the number of such piggyback registrations pursuant to the
preceding sentence which the Holding Company is obligated to effect. No
registration effected under this Section 2.2(a) shall relieve the Holding
Company of its obligations to effect Demand Registrations.
(b) If, at any time after giving written notice of its
intention to register any equity securities and prior to the effective date of
the registration statement filed in connection with such registration, the
Holding Company shall determine for any reason not to register or to delay
registration of such equity securities, the Holding Company may, at its
election, give written notice of such determination to all Holders of record of
Registrable Securities and Convertible Preferred Stock and (i) in the case of a
determination not to register, shall be relieved of its obligation to register
any Registrable Securities in connection with such abandoned registration,
without prejudice, however, to the rights of Holders under Section 2.1, and (ii)
in the case of a determination to delay such registration of its equity
securities, shall be permitted to delay the registration of such Registrable
Securities for the same period as the delay in registering such other equity
securities.
(c) Any Holder shall have the right to withdraw its request
for inclusion of its Registrable Securities in any registration statement
pursuant to this Section 2.2 by giving written notice to the Holding Company of
its request to withdraw; provided, however, that (i) such request must be made
in writing prior to the execution of the underwriting agreement and (ii) such
withdrawal shall be irrevocable.
2.3. Allocation of Securities Included in Registration Statement.
(a) If any requested registration pursuant to Section 2.1
involves an underwritten offering and the manager of such offering (or a
co-managing underwriter of such offering, if Xxxxxxx, Xxxxx & Co. or one of its
Affiliates is the lead managing underwriter of such offering) shall advise the
Holding Company in writing that, in its opinion, the number of securities
requested to be included in such registration by the Holders or any other
persons (including those shares of Holding Company Common Stock requested by the
Holding Company or by holders exercising Additional Piggyback Rights to be
included in such registration) exceeds the largest number (the "Section 2.1 Sale
Number") that can be sold in an
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orderly manner in such offering within a price range acceptable to the
Initiating Holder, the Holding Company shall include in such registration:
(i) all Registrable Securities requested to be included in
such registration by Holders of Registrable Securities; provided, however, that,
if the number of such Registrable Securities exceeds the Section 2.1 Sale
Number, the number of such Registrable Securities (not to exceed the Section 2.1
Sale Number) to be included in such registration shall be allocated as the
Holders determine;
(ii) to the extent that the number of Registrable Securities
to be included by all Holders is less than the Section 2.1 Sale Number, shares
of Holding Company Common Stock that the Holding Company proposes to register;
and
(iii) to the extent that the number of Registrable
Securities to be included by all Holders and the number of securities to be
included by the Holding Company is less than the Section 2.1 Sale Number, any
other shares of Holding Company Common Stock that the holders thereof propose to
register pursuant to the exercise of Additional Piggyback Rights.
If, as a result of the proration provisions of this Section 2.3(a), any
Holder shall not be entitled to include all Registrable Securities in a
registration that such Holder has requested be included, such Holder may elect
to withdraw his request to include Registrable Securities in such registration
or may reduce the number requested to be included; provided, however, that (x)
such request must be made in writing prior to the execution of the underwriting
agreement and (y) such withdrawal shall be irrevocable.
(b) If any registration pursuant to Section 2.2 involves an underwritten
offering and the managing underwriter shall advise the Holding Company that, in
its view, the number of securities requested to be included in such registration
exceeds the number (the "Section 2.2 Sale Number") that can be sold in an
orderly manner in such registration within a price range acceptable to the
Holding Company, the Holding Company shall include in such registration:
(i) all Holding Company Common Stock or Holding Company Common
Stock Equivalents that the Holding Company proposes to register for its own
account (the "Holding Company Securities");
(ii) if the number of Holding Company Securities is zero, all
securities being included in such registration either pursuant to the terms of
any contractual demand registration rights which may be granted to any Person
other than a Holder or held by other Persons for whom the registration was
initiated ("Other Demand Rights"); and
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(iii) (x) to the extent that the number of Holding Company
Securities is more than zero but less than the Section 2.2 Sale Number, all
securities being included in such registration pursuant to the terms of any
Other Demand Rights and all Registrable Securities requested to be included in
such registration by Holders of Registrable Securities; provided, however, that,
if the number of such Registrable Securities, securities being included pursuant
to Other Demand Rights and Holding Company Securities exceeds the Section 2.2
Sale Number, the aggregate number of such Registrable Securities and securities
being included pursuant to Other Demand Rights (not to exceed the Section 2.2
Sale Number) to be included in such registration shall be allocated on a pro
rata basis among all Holders requesting that Registrable Securities be included
in such registration and all Persons exercising Other Demand Rights based on the
number of Registrable Securities then owned by each such Holder or Person, as
applicable, requesting inclusion in relation to the aggregate number of
Registrable Securities then owned by all such Holders requesting inclusion and
all Persons exercising Other Demand Rights; and
(y) to the extent that the number of Holding Company
Securities is zero, and the number of securities being included pursuant to
Other Demand Rights is less than the Section 2.2 Sale Number, all Registrable
Securities requested to be included in such registration by Holders of
Registrable Securities, provided, however, that, if the number of such
Registrable Securities and securities being included pursuant to Other Demand
Rights exceeds the Section 2.2 Sale Number, the aggregate number of such
Registrable Securities (not to exceed the Section 2.2 Sale Number) to be
included in such registration shall be allocated on a pro rata basis among all
Holders requesting that Registrable Securities be included in such registration
based on the number of Registrable Securities then owned by each such Holder
requesting inclusion in relation to the aggregate number of Registrable
Securities then owned by all such Holders requesting inclusion, or allocated as
otherwise agreed by such Holders requesting inclusion.
2.4. Registration Procedures. If and whenever the Holding Company is
required by the provisions of this Agreement to use its commercially reasonable
efforts to effect or cause the registration of any Registrable Securities under
the Securities Act as provided in this Agreement, the Holding Company shall, as
expeditiously as possible (but, in any event, subject to the limitations of
Section 2.1(b), within 60 days after a Demand Registration Request in the case
of Section 2.4(a)):
(a) prepare and file with the SEC a registration statement on
an appropriate registration form for the disposition of such Registrable
Securities in accordance with the intended method of disposition thereof, which
form shall be available for the sale of the Registrable Securities by the
selling Holders thereof, and such registration statement shall comply as to form
in all material respects with the requirements of the applicable form and
include all financial statements required to be filed therewith, and the Holding
Company shall use its commercially reasonable efforts to cause such registration
statement to become and
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remain effective for the period specified in Section 2.4(b) below (provided,
however, that before filing a registration statement or prospectus or any
amendments or supplements thereto, or comparable statements under securities or
blue sky laws (which for purposes of this Agreement shall include any insurance
securities laws) of any jurisdiction, the Holding Company will furnish to one
counsel for the Holders participating in the planned offering (selected by the
Initiating Holder, in the case of a registration pursuant to Section 2.1, and
selected by the Major Holder, in the case of a registration pursuant to Section
2.2, and in either case reasonably acceptable to the Holding Company) and the
underwriters, if any, copies of all such documents proposed to be filed
(including all exhibits thereto), which documents will be subject to the
reasonable review and reasonable comment of such counsel, and the Holding
Company shall not file any registration statement or amendment thereto or any
prospectus or supplement thereto to which the Holders of a majority of the
Registrable Securities covered by such registration statement or the
underwriters, if any, shall reasonably object in writing);
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all Registrable Securities covered by such registration
statement in accordance with the intended methods of disposition by the seller
or sellers thereof set forth in such registration statement until the earlier of
(i) such time as all of the Registrable Securities covered by such registration
statement have been so disposed of by the seller or sellers or (ii) 180 days
after such registration statement becomes effective;
(c) furnish, without charge, to each seller of such
Registrable Securities and each underwriter (which term for purposes of this
Agreement shall include a person deemed to be an underwriter within the meaning
of Section 2(11) of the Securities Act and any placement agent or sales agent),
if any, of the securities covered by such registration statement one executed
copy each and such number of conformed copies of such registration statement and
of each amendment and supplement thereto (in each case including all exhibits),
such numbers of copies of the prospectus included in such registration statement
(including each preliminary prospectus) in conformity with the requirements of
the Securities Act, and such other documents, as such seller and underwriter may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities owned by such seller (the Holding Company hereby
consenting to the use in accordance with all applicable law of each such
registration statement (or amendment or post-effective amendment thereto) and
each such prospectus (or preliminary prospectus or supplement thereto) by each
such seller of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
such registration statement or prospectus);
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(d) use its commercially reasonable efforts to register or
qualify the Registrable Securities covered by such registration statement under
such other securities or blue sky laws of such United States jurisdictions as
any sellers of Registrable Securities or any managing underwriter, if any, shall
reasonably request, and do any and all other acts and things which may be
reasonably necessary or advisable to enable such sellers or underwriter, if any,
to consummate the disposition of the Registrable Securities in such
jurisdictions, except that in no event shall the Holding Company be required to
qualify to do business as a foreign corporation in any jurisdiction where it
would not, but for the requirements of this paragraph (d), be required to be so
qualified, to subject itself to taxation in any such jurisdiction or to consent
to general service of process in any such jurisdiction;
(e) promptly notify each Holder selling Registrable Securities
covered by such registration statement and each managing underwriter, if any,
and confirm such advice in writing: (i) when the registration statement, any
pre-effective amendment, the prospectus or any prospectus supplement related
thereto or post-effective amendment to the registration statement has been filed
and, with respect to the registration statement or any post-effective amendment,
when the same has become effective; (ii) of any comments by the SEC or state
securities authority or request by the SEC or state securities authority for
amendments or supplements to the registration statement or the prospectus
related thereto or for additional information; (iii) of the issuance by the SEC
of any stop order suspending the effectiveness of the registration statement or
the initiation of any proceedings for that purpose; (iv) of the receipt by the
Holding Company of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the securities or
blue sky laws of any jurisdiction or the initiation of any proceeding for such
purpose; (v) of the existence of any fact of which the Holding Company becomes
aware which results in the registration statement, the prospectus related
thereto or any document incorporated therein by reference containing an untrue
statement of a material fact or omitting to state a material fact required to be
stated therein or necessary to make any statement therein not misleading in
light of the circumstances then existing; and (vi) if at any time the
representations and warranties contemplated by any underwriting agreement,
securities sale agreement, or other similar agreement, relating to the offering
shall cease to be true and correct in all material respects; and, if the
notification relates to an event described in clause (v), the Holding Company
shall promptly prepare and furnish to each such seller and each underwriter, if
any, a reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to the purchasers of such Registrable 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;
(f) comply in all material respects with all applicable rules
and regulations of the SEC, and make generally available to its security
holders, as soon as reasonably practicable after the effective date of the
registration statement (and in any event within 16 months thereafter), an
earnings statement (which need not be audited) covering the period of at
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least twelve consecutive months beginning with the first day of the Holding
Company's first calendar quarter after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder;
(g) (i) cause all such Registrable Securities covered by such
registration statement to be listed on the principal securities exchange on
which similar securities issued by the Holding Company are then listed (if any),
if the listing of such Registrable Securities is then permitted under the rules
of such exchange, or (ii) if no similar securities are then so listed, to either
cause all such Registrable Securities to be listed on a national securities
exchange or to secure designation of all such Registrable Securities as a NASDAQ
"national market system security" within the meaning of Rule 11Aa2-1 of the
Exchange Act or, failing that, secure NASDAQ authorization for such shares and,
without limiting the generality of the foregoing, take all actions that may be
required by the Holding Company as the issuer of such Registrable Securities in
order to facilitate the managing underwriter's arranging for the registration of
at least two market makers as such with respect to such shares with the National
Association of Securities Dealers, Inc. (the "NASD");
(h) enter into such customary agreements (including, if
applicable, an underwriting agreement), in form and substance satisfactory to
the Major Holder, and take such other actions as the Major Holder shall
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities;
(i) whether or not an agreement of the type referred to in
Section 2.4(h) hereof is entered into and whether or not any portion of the
offering contemplated by such registration statement is an underwritten offering
or is made through a placement or sales agent or any other entity, (i) make such
representations and warranties to the Holders participating in such registration
and the underwriters, if any, thereof in form, substance and scope as are
customarily made in connection with an offering of Holding Company Common Stock
or other equity securities pursuant to any appropriate agreement and/or to a
registration statement filed on the form applicable to such registration; (ii)
obtain opinions of inside and outside counsel to the Holding Company addressed
to the Holders participating in such registration and the underwriters, if any,
in customary form and covering such matters, of the type customarily covered by
such opinions, as the managing underwriters, if any, and as the Major Holder may
reasonably request, which opinions shall be reasonably satisfactory to the
managing underwriter, if any, and the Major Holder; (iii) obtain a "cold
comfort" letter or letters from the independent certified public accountants of
the Holding Company (the "Accountants") addressed to the Holders and the
underwriters, if any, thereof, dated (I) the effective date of such registration
statement and (II) the date of the closing under the underwriting agreement
relating thereto, such letter or letters to be in customary form and covering
such matters of the type customarily covered, from time to time, by letters of
such type and such other financial matters as the managing underwriters, if any,
and as the Major Holder may reasonably request, which letter or letters shall be
reasonably satisfactory to the managing underwriter, if
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any, and the Major Holder (subject to receipt by the Accountants of such letters
or other representations reasonably requested by the Accountants if such letters
or representations are then required under the guidelines of the American
Institute of Certified Public Accountants to be provided to the Accountants);
and (iv) deliver such documents and certificates, including officers'
certificates, as may be reasonably requested by the Major Holder and the
placement or sale agent, if any, therefor and the managing underwriters, if any,
thereof to evidence the accuracy of the representations and warranties made
pursuant to clause (i) above and the compliance with or satisfaction of any
agreements or conditions contained in the underwriting agreement or other
agreement entered into by the Holding Company;
(j) deliver promptly to the Major Holder and each underwriter,
if any, copies of all correspondence between the SEC and the Holding Company,
its counsel or auditors and all memoranda relating to discussions with the SEC
or its staff with respect to the registration statement, other than those
portions of any such correspondence and memoranda which contain information
subject to attorney-client privilege with respect to the Holding Company, and,
upon receipt of such confidentiality agreements as the Holding Company may
reasonably request, make reasonably available for inspection by any seller of
such Registrable Securities covered by such registration statement, by any
underwriter, if any, participating in any disposition to be effected pursuant to
such registration statement and by any attorney, accountant or other agent
retained by any such seller or any such underwriter, all pertinent financial and
other records, pertinent corporate documents and properties of the Holding
Company, and cause all of the Holding Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement;
(k) use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the registration
statement;
(l) use its commercially reasonable efforts to obtain the
consent or approval of each governmental agency or authority, whether federal,
state or local, which may be required to effect such registration or the
offering or sale in connection therewith or to enable the Holders covered by
such registration statement to offer, or to consummate the disposition of, their
Registrable Securities;
(m) provide and cause to be maintained a transfer agent and
registrar for all such Registrable Securities covered by such registration
statement not later than the effective date of such registration statement;
(n) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the registration statement;
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(o) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate as a
member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Conduct of the NASD) thereof,
whether as a holder of such Registrable Securities or as an underwriter, or a
broker or dealer in respect thereof, or otherwise, assist such broker-dealer in
complying with the requirements of such Rules of Conduct;
(p) make reasonably available its employees and personnel and
otherwise provide reasonable assistance to the underwriters (taking into account
the needs of the Holding Company's businesses and the requirements of the
marketing process) in the marketing of Registrable Securities in any
underwritten offering;
(q) promptly prior to the filing of any document which is to
be incorporated by reference into the registration statement or the prospectus
(after the initial filing of such registration statement) provide copies of such
document to counsel for the selling holders of Registrable Securities and to
each managing underwriter, if any, and make the Holding Company's
representatives reasonably available for discussion of such document and make
such changes in such document concerning the selling holders prior to the filing
thereof as counsel for such selling holders or underwriters may reasonably
request;
(r) cooperate with the selling Holders of Registrable
Securities and the managing underwriter, if any, to facilitate the timely
preparation and delivery of certificates not bearing any restrictive legends
representing the Registrable Securities to be sold, and cause such Registrable
Securities to be issued in such denominations and registered in such names in
accordance with the underwriting agreement prior to any sale of Registrable
Securities to the underwriters or, if not an underwritten offering, in
accordance with the instructions of the selling Holders of Registrable
Securities at least two business days prior to any sale of Registrable
Securities and instruct any transfer agent and registrar of Registrable
Securities to release any stop transfer orders in respect thereof; and
(s) take all such other commercially reasonable actions as are
necessary or advisable in order to expedite or facilitate the disposition of
such Registrable Securities.
The Holding Company may require as a condition precedent to
the Holding Company's obligations under this Section 2.4 that each seller of
Registrable Securities as to which any registration is being effected furnish
the Holding Company such information regarding such seller and the distribution
of such securities as the Holding Company may from time to time reasonably
request provided that such information shall be used only in connection with
such registration.
Each Holder of Registrable Securities agrees that upon receipt
of any notice from the Holding Company of the happening of any event of the kind
described in clause (v) of
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paragraph (e) of this Section 2.4, such Holder will discontinue such Holder's
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended prospectus contemplated by paragraph (e) of this
Section 2.4 and, if so directed by the Holding Company, will deliver to the
Holding Company (at the Holding Company's expense) all copies, other than
permanent file copies, then in such Holder's possession of the prospectus
covering such Registrable Securities that was in effect at the time of receipt
of such notice. In the event the Holding Company shall give any such notice, the
applicable period mentioned in paragraph (b) of this Section 2.4 shall be
extended by the number of days during such period from and including the date of
the giving of such notice to and including the date when each seller of any
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
paragraph (e) of this Section 2.4.
If any such registration statement or comparable statement under state
securities or blue sky laws refers to any Holder by name or otherwise as the
Holder of any securities of the Holding Company, then such Holder shall have the
right to require (i) the insertion therein of language, in form and substance
satisfactory to such Holder and the Holding Company, to the effect that the
holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the Holding Company's
securities covered thereby and that such holding does not imply that such Holder
will assist in meeting any future financial requirements of the Holding Company
or (ii) in the event that such reference to such Holder by name or otherwise is
not in the judgment of the Holding Company, as advised by counsel, required by
the Securities Act or any similar federal statute or any state securities or
blue sky law then in force, the deletion of the reference to such Holder.
2.5 Registration Expenses.
(a) "Expenses" shall mean any and all fees and expenses
incident to the Holding Company's performance of or compliance with this Article
2, including, without limitation: (i) SEC, stock exchange or NASD registration
and filing fees and all listing fees and fees with respect to the inclusion of
securities in NASDAQ, (ii) fees and expenses in connection with the
qualification of Registrable Securities for offering and sale under state
securities or blue sky laws and in connection with the preparation of a blue sky
survey, including, without limitation, reasonable fees and expenses of blue sky
counsel, (iii) printing and copying expenses, (iv) messenger and delivery
expenses, (v) expenses incurred in connection with any road show, (vi) fees and
disbursements of counsel for the Holding Company, (vii) with respect to each
registration, the reasonable fees and disbursements of one counsel for the
selling Holder(s) (selected by the Initiating Holder, in the case of a
registration pursuant to Section 2.1, and selected by the Major Holder, in the
case of a registration pursuant to Section 2.2), (viii) fees and disbursements
of all independent public accountants (including the expenses of any audit
and/or "cold comfort" letter) and fees and expenses of other persons, including
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special experts, retained by the Holding Company, (ix) subject to Section
2.1(d), fees and expenses payable to a Qualified Independent Underwriter and (x)
any other fees and disbursements of underwriters, if any, customarily paid by
issuers or sellers of securities (collectively, "Expenses").
(b) The Holding Company shall pay all Expenses with respect to
any Demand Registration. The Holding Company (as between the Holding Company and
any Holder) shall pay all Expenses with respect to any Piggyback Registration.
(c) Notwithstanding the foregoing, each Holder of Registrable
Securities being registered shall pay all underwriting discounts and commissions
and any transfer taxes, if any, attributable to the sale of such Registrable
Securities, pro rata with respect to payments of discounts and commissions in
accordance with the number of Registrable Securities sold in the offering by
such Holder.
2.6. Certain Limitations on Registration Rights. In the case of any
registration under Section 2.1 pursuant to an underwritten offering, or in the
case of a registration under Section 2.2 if the Holding Company has determined
to enter into an underwriting agreement in connection therewith, all securities
to be included in such registration shall be subject to an underwriting
agreement and no person may participate in such registration unless such person
agrees to sell such person's securities on the basis provided therein and
completes and executes all reasonable questionnaires, and other documents
(including custody agreements and powers of attorney) which must be executed in
connection therewith, and provides such other information to the Holding Company
or the underwriter as may be necessary to register such Person's securities.
2.7. Limitations on Sale or Distribution of Other Securities. The
Holding Company hereby agrees that if it shall previously have received a
request for registration pursuant to Section 2.1 or 2.2, and if such previous
registration shall not have been withdrawn or abandoned, the Holding Company
shall not effect any registration of any of its securities under the Securities
Act (other than a registration on Form S-4 or Form S-8 or any successor or
similar form which is then in effect or other applicable form with respect to
any benefit plan or with respect to any dividend reinvestment plan), whether or
not for sale for its own account, until a period of 90 days, or in the case of
an IPO, 180 days shall have elapsed from the effective date of such previous
registration; and the Holding Company shall so provide in any registration
rights agreements hereafter entered into with respect to any of its securities.
2.8. No Required Sale. Nothing in this Agreement shall be deemed to
create an independent obligation on the part of any Holder to sell any
Registrable Securities pursuant to any effective registration statement.
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2.9. Indemnification.
(a) In the event of any registration of any securities of the
Holding Company under the Securities Act pursuant to this Article 2, the Holding
Company will, and hereby does, indemnify and hold harmless, to the fullest
extent permitted by law, each Holder of Registrable Securities, its directors,
officers, fiduciaries, employees and stockholders or general and limited
partners (and the directors, officers, employees and stockholders thereof), each
other Person who participates as an underwriter or a Qualified Independent
Underwriter, if any, in the offering or sale of such securities, each officer,
director, employee, stockholder or partner of such underwriter or Qualified
Independent Underwriter, and each other Person, if any, who controls such seller
or any such underwriter within the meaning of the Securities Act, against any
and all losses, claims, damages or liabilities, joint or several, actions or
proceedings (whether commenced or threatened) and expenses (including reasonable
fees of counsel and any amounts paid in any settlement effected with the Holding
Company's consent, which consent shall not be unreasonably withheld or delayed
if the Holding Company has not assumed the defense of the action or proceeding)
to which each such indemnified party may become subject under the Securities Act
or otherwise (collectively, "Claims"), insofar as such Claims arise out of or
are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any registration statement under which such
securities were registered under the Securities Act or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary, final or summary prospectus or any amendment or supplement thereto,
together with the documents incorporated by reference therein, or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or (iii) any
violation by the Holding Company of any federal, state or common law rule or
regulation applicable to the Holding Company and relating to action required of
or inaction by the Holding Company in connection with any such registration, and
the Holding Company will reimburse any indemnified party for any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such Claim as such expenses are incurred;
provided, however, that the Holding Company shall not be liable to any such
indemnified party in any such case to the extent such Claim arises out of or is
based upon any untrue statement or alleged untrue statement of a material fact
or omission or alleged omission of a material fact made in such registration
statement or amendment thereof or supplement thereto or in any such prospectus
or any preliminary, final or summary prospectus in reliance upon and in
conformity with written information furnished to the Holding Company by or on
behalf of such indemnified party specifically for use therein. Such indemnity
and reimbursement of expenses shall remain in full force and effect regardless
of any investigation made by or on behalf of such indemnified party and shall
survive the transfer of such securities by such seller.
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(b) Each Holder of Registrable Securities that are included in
the securities as to which any registration under Section 2.1 or 2.2 is being
effected (and, if the Holding Company requires as a condition to including any
Registrable Securities in any registration statement filed in accordance with
Section 2.1 or 2.2, any underwriter and Qualified Independent Underwriter, if
any) shall, severally and not jointly, indemnify and hold harmless (in the same
manner and to the same extent as set forth in paragraph (a) of this Section 2.9)
the Holding Company, its officers, employees, stockholders and directors, each
Person controlling the Holding Company within the meaning of the Securities Act
and all other prospective sellers and their directors, officers, general and
limited partners and respective controlling Persons with respect to any untrue
statement or alleged untrue statement of any material fact in, or omission or
alleged omission of any material fact from, such registration statement, any
preliminary, final or summary prospectus contained therein, or any amendment or
supplement thereto, 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 Holding Company or its representatives by or on
behalf of such Holder (or underwriter or Qualified Independent Underwriter, if
any,) specifically for use therein and reimburse such indemnified party for any
legal or other expenses reasonably incurred in connection with investigating or
defending any such Claim as such expenses are incurred; provided, however, that
the aggregate amount which any such Holder shall be required to pay pursuant to
this Section 2.9(b) and Sections 2.9(c) and (e) shall in no case be greater than
the amount of the net proceeds received by such person upon the sale of the
Registrable Securities pursuant to the registration statement giving rise to
such claim. Such indemnity and reimbursement of expenses shall remain in full
force and effect regardless of any investigation made by or on behalf of such
indemnified party and shall survive the transfer of such securities by such
Holder.
(c) Any person entitled to indemnification under this
Agreement shall notify promptly the indemnifying party in writing of the
commencement of any action or proceeding with respect to which a claim for
indemnification may be made pursuant to this Section 2.9, but the failure of any
indemnified party to provide such notice shall not relieve the indemnifying
party of its obligations under the preceding paragraphs of this Section 2.9,
except to the extent the indemnifying party is materially prejudiced thereby and
shall not relieve the indemnifying party from any liability which it may have to
any indemnified party otherwise than under this Section 2.9. In case any action
or proceeding is brought against an indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, unless in the reasonable opinion of outside
counsel to the indemnified party a conflict of interest between such indemnified
and indemnifying parties may exist in respect of such claim, to assume the
defense thereof jointly with any other indemnifying party similarly notified, to
the extent that it chooses, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party that it so chooses, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by such
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indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that (i) if the indemnifying party
fails to take reasonable steps necessary to defend diligently the action or
proceeding within 20 days after receiving notice from such indemnified party
that the indemnified party believes it has failed to do so; or (ii) if such
indemnified party who is a defendant in any action or proceeding which is also
brought against the indemnifying party reasonably shall have concluded that
there may be one or more legal defenses available to such indemnified party,
which are not available to the indemnifying party; then, in any such case, the
indemnified party shall have the right to assume or continue its own defense as
set forth above (but with no more than one firm of counsel for all indemnified
parties in each jurisdiction, except to the extent any indemnified party or
parties reasonably shall have concluded that there may be legal defenses
available to such party or parties which are not available to the other
indemnified parties or to the extent representation of all indemnified parties
by the same counsel is otherwise inappropriate under applicable standards of
professional conduct) and the indemnifying party shall be liable for any
expenses therefor. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (A) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (B) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If for any reason the foregoing indemnity is unavailable
or is insufficient to hold harmless an indemnified party under Sections 2.9(a)
or (b), then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of any Claim 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, with respect to such
offering of securities. 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. If, however, the
allocation provided in the second preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative faults but also the relative benefits of the
indemnifying party and the indemnified party as well as any other relevant
equitable considerations. The parties hereto agree that it would not be just and
equitable if contributions pursuant to this Section 2.9(d) were to be determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the preceding sentences
of this Section 2.9(d). The amount paid or payable in respect of any Claim shall
be deemed to include any legal or other expenses
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reasonably incurred by such indemnified party in connection with investigating
or defending any such Claim. 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. Notwithstanding anything in this Section 2.9(d) to the
contrary, no indemnifying party (other than the Holding Company) shall be
required pursuant to this Section 2.9(d) to contribute any amount in excess of
the net proceeds received by such indemnifying party from the sale of
Registrable Securities in the offering to which the losses, claims, damages or
liabilities of the indemnified parties relate, less the amount of any
indemnification payment made by such indemnifying party pursuant to Section
2.9(b).
(e) The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made or
omitted by or on behalf of any indemnified party and shall survive the transfer
of the Registrable Securities by any such party.
(f) The indemnification and contribution required by this
Section 2.9 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
expense, loss, damage or liability is incurred. Any amounts advanced by an
indemnifying party to an indemnified party pursuant to this Section 2.9 shall be
returned to such indemnifying party if it shall be finally determined by a court
in a judgment not subject to appeal or final review that such indemnified party
was not entitled to indemnification by such indemnifying party.
3. General.
3.1. Holdback. If requested by the managing underwriter of an
underwritten offering, the Holders participating in such offering shall agree
not to sell any Registrable Securities during a period not to exceed 90 days
beginning on the date of the underwriting agreement for such offering, except as
a part of such underwritten offering.
3.2. Rule 144. If the Holding Company shall have filed a registration
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act in
respect of the Holding Company Common Stock or any Holding Company Common Stock
Equivalents, the Holding Company covenants that (i)it will timely file the
reports required to be filed by it under the Securities Act or the Exchange Act
(including, but not limited to, the reports under Sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 under the Securities
Act and the rules and regulations adopted by the SEC thereunder), and (ii) 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
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Securities Act, or (B) any similar rule or regulation hereafter adopted by the
SEC. Upon the request of any Holder of Registrable Securities, the Holding
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
3.3. Nominees for Beneficial Owners. If Registrable Securities are held
by a nominee for the beneficial owner thereof, the beneficial owner thereof may,
at its option, be treated as the Holder of such Registrable Securities for
purposes of any request or other action by any Holder or Holders of Registrable
Securities pursuant to this Agreement (or any determination of any number or
percentage of Registrable Securities held by any Holder or Holders of
Registrable Securities contemplated by this Agreement), provided that the
Holding Company shall have received assurances reasonably satisfactory to it of
such beneficial ownership.
3.4. Amendments and Waivers. This Agreement may be amended, modified,
supplemented or waived only upon the written agreement of the party against whom
enforcement of such amendment, modification, supplement or waiver is sought.
3.5. Notices. All notices required under this Agreement shall be made
as provided in the Investment Agreement.
3.6. Miscellaneous.
(a) This Agreement shall be binding upon and inure to the
benefit of the parties and then successors and legal representatives. No party
shall assign this Agreement or any rights hereunder to any other Person.
(b) This Agreement (with the documents referred to herein)
embodies the entire agreement and understanding between the parties hereto and
supersedes all prior agreements and understandings relating to the subject
matter hereof.
(c) This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of New York without giving
effect to the conflicts of law principles thereof.
(d) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
section references are to this Agreement unless otherwise expressly provided.
(e) This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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(f) Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
(g) The parties hereto acknowledge that there would be no
adequate remedy at law if any party fails to perform any of its obligations
hereunder, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to
injunctive relief, including specific performance, to enforce such obligations
without the posting of any bond, and, if any action should be brought in equity
to enforce any of the provisions of this Agreement, none of the parties hereto
shall, to the extent permitted by law, raise the defense that there is an
adequate remedy at law.
(h) Each party hereto shall do and perform or cause to be done
and performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments, and documents as any other
party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
3.7. No Inconsistent Agreements. The rights granted to the holders of
Registrable Securities hereunder do not in any way conflict with and are not
inconsistent with any other agreements to which the Company or the Holding
Company is a party or by which it is bound. Neither the Company nor the Holding
Company shall enter into any agreement with respect to its securities which is
inconsistent with the rights granted in this Agreement or otherwise conflicts
with the provisions hereof.
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IN WITNESS WHEREOF, the undersigned have executed this Registration
Rights Agreement as of the date set forth above.
MONY FINANCIAL SERVICES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
THE MUTUAL LIFE INSURANCE COMPANY OF
NEW YORK
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
GS MEZZANINE PARTNERS, L.P.
By: GS Mezzanine Advisors, L.P.,
its general partner
By: GS Mezzanine Advisors, Inc.,
its general partner
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
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GS MEZZANINE PARTNERS OFFSHORE, L.P.
By: GS Mezzanine Advisors
(Cayman),L.P.,
its general partner
By: GS Mezzanine Advisors, Inc.,
its general partner
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
STONE STREET FUND 1997, L.P.
By: Stone Street Asset Corp.,
its general partner
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
XXXXXX XXXXXX XXXX 0000, X.X.
By: Stone Street Asset Corp.,
its managing general partner
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
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SCHEDULE I
INVESTORS
GS MEZZANINE PARTNERS, L.P.
GS MEZZANINE PARTNERS OFFSHORE, X.X.
XXXXX STREET FUND 0000, X.X.
XXXXXX XXXXXX FUND 1997, L.P.
24
