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EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of 1996 by
and among BEC Group, Inc., a Delaware corporation (the "Company"), and each of
the several Holders (as hereinafter defined) executing a signature page hereto.
This Agreement is made pursuant to those certain Agreements for
Conversion and Exchange of Notes dated as of the date of this Agreement by and
among the Company and the holders named therein (the "Exchange Agreements"). In
order to induce the holders to enter into the respective Exchange Agreements,
the Company has agreed to provide the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing of the
transactions contemplated by the Exchange Agreements.
In consideration of the foregoing, the parties hereby agree as
follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
"Advice" shall have the meaning set forth in Section 4.
"Affiliate"means, with respect to any specified Person, any other
Person who, directly or indirectly, controls, is controlled by, or is under
common control with such specified Person.
"Business Day" means any day other than a day on which banks are
authorized or required to be closed in the State of New York.
"Commission"means the Securities and Exchange Commission.
"Common Stock" means the common stock, par value $.0l per share, of the
Company.
"Company" shall have the meaning set forth in the preamble and shall
include the Company's successors by merger, acquisition, reorganization or
otherwise.
"Controlling Persons" shall have the meaning set forth in Section
6(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor statute, and the rules and regulations of
the Commission promulgated thereunder.
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"Holder" means (i) each Person (other than the Company) who is a
signatory to this Agreement and (ii) each Person (other than the Company and
its Affiliates) to whom a Holder transfers Securities if such Person acquires
such Securities as Registrable Securities.
"Holders' Counsel" means Xxxxxxx, Procter & Xxxx, special counsel to
the Holders, or any successor counsel selected by Holders of a majority in
interest of the Registrable Securities.
"Indenture" means the Indenture, dated as of the date of this
Agreement, between the Company and the Trustee, pursuant to which the Notes are
being issued, as amended, modified or supplemented from time to time, together
with any exhibits, schedules or other attachments thereto.
"Inspectors" shall have the meaning set forth in Section 4(m).
"NASD" shall have the meaning set forth in Section 4(q).
"NASDAQ" shall have the meaning set forth in Section 4(o).
"Notes" means the Company's 8% Subordinated Convertible Notes due 2002
issued pursuant to the Exchange Agreements and in accordance with the Indenture
in an aggregate principal amount of up to $23,000,000.
"Objection Notice" shall have the meaning set forth in Section 4(a).
"Objecting Party" shall have the meaning set forth in Section 4(a).
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, limited liability company,
unincorporated organization or government or other agency or political
subdivision thereof.
"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 prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, and all other amendments and
supplements to the prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such prospectus.
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"Records"shall have the meaning set forth in Section 4(m)
"Registrable Securities" means the Securities; provided, however, that
any Securities shall cease to he Registrable Securities when (i) a Registration
Statement covering such Registrable Securities has been declared effective and
such Registrable Securities have been disposed of pursuant to such effective
Registration Statement or (ii) such Registrable Securities are transferred or
transferable to any Person other than a Holder pursuant to Rule 144 (or any
similar Provision then in force, but not Rule 144A) under the Securities Act,
including a sale pursuant to the provisions OF Rule 144(k).
"Registration Expenses" shall have the meaning set forth in Section 5.
"Registration Statement" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the
provisions of this Agreement (including any Shelf Registration Statement), and
all amendments and supplements to any such registration statement, including
post amendments, in each case including the Prospectus, all exhibits, and all
material incorporated by reference or deemed to be incorporated by reference in
such registration statement.
"Securities" means the Notes, any Common Stock which may be issued as
payment of interest with respect to the Notes and the Common Stock issued or
issuable upon conversion of any Note.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor statute, and the rules and regulations of the
Commission promulgated thereunder.
"Shelf-Registration Statement" shall have the meaning set forth in
Section 2 (a).
"Suspension Notice," has the meaning set forth in Section 4.
"Suspension Period" has the meaning set forth in Section 4.
"Target Effective Period" shall have the meaning set forth in Section
2 (a).
"Target Filing Date" means the date 30 days after the Closing (as
defined in the Exchange Agreements)
SECTION 2. SHELF REGISTRATION.
(a) Filing; Effectiveness. As soon as practicable but
not later than the Target Filing Date, the Company shall prepare and file with
the Commission a "shelf" registration statement (the
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"Shelf Registration Statement") on the appropriate form for an offering to be
made on a continuous basis pursuant to Rule 415 under the Securities Act (or
such successor rule or similar provision then in effect) covering all of the
Registrable Securities. The Company shall use its commercially reasonable best
efforts to have the Shelf Registration Statement declared effective and to keep
such Shelf Registration Statement continuously effective for a period (the
"Target Effective Period") of at least 36 months following the date on which
such Shelf Registration Statement is declared effective. The Holders of
Registrable Securities shall be permitted to withdraw all or any part of the
Registrable Securities from a Shelf Registration Statement at any time prior to
effective date of such Shelf Registration Statement.
(b) Supplements; Amendments. The Company agrees, if necessary,
to supplement or amend the Shelf Registration Statement, as required by the
rules, regulations or instructions applicable to the registration form used by
the Company for such Shelf Registration Statement or by the Securities Act or
as requested (which request shall result in the filing of a supplement or
amendment) by any Holder of Registrable Securities to which such Shelf
Registration Statement relates, and the Company agrees to furnish to the
Holders, Holders' Counsel and any managing underwriter copies of any such
supplement or amendment prior to its being used and/or filed with the
Commission.
(c) Effective Registration. A registration will not be
deemed to have been effected as a Shelf Registration Statement unless the Shelf
Registration Statement with respect thereto has been declared effective by the
Commission and the Company has complied in all material respects with its
obligations under this Agreement with respect thereto; provided, however, that
if after it has been declared effective, the offering of Registrable Securities
pursuant to a Shelf Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the Commission or any other
governmental agency or court, such Shelf Registration Statement will be deemed
not to have become effective during the period of such interference until the
offering of Registrable Securities pursuant to such Shelf Registration
Statement may legally resume. If a registration requested pursuant to this
Section 2 is deemed not to have been effected, then the Company shall continue
to be obligated to effect a registration pursuant to this Section 2.
(d) Selection of Underwriter. If the Holders so elect,
the offering of Registrable Securities pursuant to a Shelf Registration
Statement shall be in the form of an under written offering. If they so elect,
the Holders participating in such Shelf Registration Statement shall select one
or more nationally recognized firms of investment bankers to act as the
book-running managing underwriter or underwriters in connection with such
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offering and shall select any additional investment bankers and managers to be
used in connection with the offering.
SECTION 3. [INTENTIONALLY OMITTED].
SECTION 4. REGISTRATION PROCEDURES.
In connection with the obligations of the Company to effect or cause
the registration of any Registrable Securities pursuant to the terms and
conditions OF this Agreement, the Company shall use its best efforts to effect
the registration of such Registrable Securities in accordance with the intended
method of distribution thereof as quickly as practicable, and in connection
therewith:
(a) The Company shall prepare and file with the
Commission a Registration Statement on the appropriate form under the
Securities Act, which form shall comply as to form in all material respects
with the requirements of the applicable form and include all financial
statements required by the Commission to be filed therewith, and use its best
efforts to cause such Registration Statement to become effective and remain
effective in accordance with the provisions of this Agreement; provided that,
at least ten Business Days prior to filing a Registration Statement or
Prospectus or any amendments or supplements thereto, including documents
incorporated by reference after the initial filing of the Registration
Statement, the Company shall furnish to the Holders of the Registrable
Securities covered by such Registration Statement, Holders' Counsel and the
underwriters, if any, draft copies of all such documents proposed to be filed,
which documents will be subject to the review of Holders' Counsel and the
underwriters, if any, and the Company will not, unless required by law, file
any Registration Statement or amendment thereto or any Prospectus or any
supplement thereto to which Holders holding a majority in interest of the
Registrable Securities covered by such Registration Statement or the
underwriters with respect to such Securities, if any, shall object; provided,
however, that any such objection to the filing of any Registration Statement or
amendment thereto or any Prospectus or supplement thereto shall be made by
written notice (the "Objection Notice") delivered to the Company no later than
ten Business Days after the party or parties asserting such objection (the
"Objecting Party") receives draft copies of the documents that the Company
proposes to file. The Objection Notice shall set forth the objections and the
specific areas in the draft documents where such objections arise. The Company
shall have five Business Days after receipt of the Objection Notice to correct
such deficiencies to the satisfaction of the Objecting Party, and will notify
each Holder of any stop order issued or threatened by the Commission in
connection therewith and shall use its best efforts to prevent the entry of
such stop order or to remove it if entered at the earliest possible moment.
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(b) The Company shall promptly prepare and file with the
Commission such amendments and post-effective amendments to the Registration
Statement as may be necessary to keep such Registration Statement effective for
as long as such registration is required to remain effective pursuant to the
terms hereof; shall cause the Prospectus to be supplemented by any required
Prospectus supplement, and, as so supplemented, to be filed pursuant to Rule
424 under the Securities Act; and shall comply with the provisions of the
Securities Act applicable to it with respect to the disposition of all
Registrable Securities covered by such Registration Statement during the
applicable period in accordance with the intended methods of disposition by the
Holders set forth in such Registration Statement or supplement to the
Prospectus;
(c) The Company shall promptly furnish to any Holder and
the underwriters, if any, without charge, such number of conformed copies of
such Registration Statement and any post-effective amendment thereto and such
number of copies of the Prospectus (including each preliminary Prospectus) and
any amendments or supplements thereto, any documents incorporated by reference
therein and such other documents as such Holder or underwriter may request in
order to facilitate the public sale or other disposition of the Registrable
Securities being sold by such Holder.
(d) The Company shall, on or prior to the date on which a
Registration Statement is declared effective, (i) use its best efforts to
register or qualify the Registrable Securities covered by such Registration
Statement under the securities or "blue sky" laws of each of the fifty states
of the United States; (ii) do any and all other reasonable acts and things
which may be necessary or advisable to enable such Holder to consummate the
disposition of such Registrable Securities owned by such Holder; (iii) use its
best efforts to keep each such registration or qualification (or exemption
therefrom) effective during the period in which the Registration Statement is
required to be kept effective; and (iv) use its best efforts to do any and all
other acts or things necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities; provided, however, that the
Company shall not be required (x) to qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 4(d) or (y) to file any general consent to service of process.
(e) The Company shall use its best efforts to cause the
Registrable Securities covered by a Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company to enable the
Holders to consummate the disposition of such Registrable Securities.
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(f) The Company shall promptly notify each Holder,
Holders' Counsel and any underwriter and (if requested by any such Person)
confirm such notice in writing, (i) when a Prospectus or any Prospectus
supplement or post-effective amendment has been filed and, with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the Commission or any state securities
authority for amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement has
become effective, (iii) of the issuance by the Commission 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 issuance by any
state securities commission or other regulatory authority of any order
suspending the qualification or exemption from qualification of any of the
Registrable Securities under state securities or "blue sky" laws or the
initiation of any proceedings for that purpose, (v) if, between the effective
date of a Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the Company
contained in any underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to the offering cease to be true and
correct in all material respects, and (vi) of the happening of any event which
makes any statement made in a Registration Statement or related Prospectus
untrue or which requires the making of any changes in such Registration
Statement or Prospectus so that they 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 light of the circumstances under
which they were made not misleading; and, as promptly as practicable
thereafter, prepare and file with the Commission and furnish a supplement or
amendment to such Prospectus so that, as thereafter deliverable to the
purchasers of such Registrable Securities, such Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(g) The Company shall make generally available to the
Holders an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act no later than 30 days after the end of the 12-month period
beginning with the first day of the Company's first fiscal quarter commencing
after the effective date of a Registration Statement, which earnings statement
shall cover said 12-month period, and which requirement will be deemed to be
satisfied if the Company timely files complete and accurate information on
forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with
Rule 158 under the Securities Act.
(h) The Company shall promptly use its best efforts to
prevent the issuance of any order suspending the effectiveness of a
Registration Statement, and if one is issued use its best
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efforts to obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement at the earliest possible moment.
(i) The Company shall, if requested by the managing
underwriter or underwriters, if any, Holders' Counsel, or any Holder promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as such managing underwriter or underwriters requests, or Holders'
Counsel requests, to be included therein, including, without limitation, with
respect to the Registrable Securities being sold by such Holder to such
underwriter or underwriters, the purchase price being paid therefor by such
underwriter or underwriters and with respect to any other terms of an
underwritten offering of the Registrable Securities to be sold in such
offering, and promptly make all required filings of such Prospectus supplement
or post-effective amendment.
(j) The Company shall, as promptly as practicable after
filing with the Commission of any document which is incorporated by reference
into a Registration Statement (in the form in which it was incorporated),
deliver a copy of each such document to each of the Holders and to Holders'
Counsel.
(k) The Company shall cooperate with the Holders and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates (which shall not bear any restrictive
legends unless required under applicable law) representing securities sold
under a Registration Statement, and enable such securities to be in such
denominations and registered in such names as the managing underwriter or
underwriters, if any, or such Holders may request and keep available and make
available to the Company's transfer agent prior to the effectiveness of such
Registration Statement a supply of such certificates.
(l) The Company shall enter into such customary
agreements (including, if applicable, an underwriting agreement in customary
form) and take such other actions as the Holders or the underwriters retained
by the Holders participating in an underwritten public offering, if any, may
request in order to expedite or facilitate the disposition of Registrable
Securities (the Holders may, at their option, require that any or all of the
representations, warranties and covenants of the Company to or for the benefit
of any underwriters also be made to and for the benefit of the Holders).
(m) The Company shall promptly make available to each
Holder, any underwriter participating in any disposition pursuant to a
Registration Statement, and any attorney, accountant or other agent or
representative retained by any such Holder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company
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(collectively, the "Records"), as shall be reasonably necessary to enable them
to exercise their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information requested by any
such Inspector in connection with such Registration Statement.
(n) The Company shall furnish to each Holder and to each
underwriter, if any, a signed counterpart, addressed to such Holder or
underwriter, of (i) an opinion or opinions of counsel to the Company, and (ii)
a comfort letter or comfort letters from the Company's independent public
accountants, each in customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the case may be, as the
Holders of Registrable Securities included in such offering or the managing
underwriter therefor reasonably requests.
(o) The Company shall use its best efforts to cause the
Registrable Securities included in a Registration Statement to be (i) listed on
each securities exchange, if any, on which similar securities issued by the
Company are then listed, or (ii) authorized to be quoted and/or listed, as
applicable, on the National Association of Securities Dealers, Inc. Automated
Quotation ("NASDAQ") or the National Market System of NASDAQ if the Registrable
Securities so qualify.
(p) The Company shall provide a CUSIP number for all
Registrable Securities covered by a Registration Statement not later than the
effective date of such Registration Statement.
(q) The Company shall cooperate with each Holder and each
underwriter participating in the disposition of Registrable Securities and
their respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. ("NASD").
(r) The Company shall, during the period when the
Prospectus is required to be delivered under the Securities Act, promptly file
all documents required to be filed with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act.
(s) The Company shall appoint a transfer agent and
registrar for all Registrable Securities covered by a Registration Statement
not later than the effective date of such Registration Statement.
(t) In connection with an underwritten offering, the
Company will participate, to the extent reasonably requested by the managing
underwriter for the offering or the Holders, in customary efforts to sell the
securities under the offering, including without limitation, participating in
"road shows."
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In the case of a Shelf Registration Statement, each Holder, upon
receipt of any notice (a "Suspension Notice") from the Company of the happening
of any event of the kind described in Section 4(f)(vi), shall forthwith
discontinue disposition of the Registrable Securities pursuant to the Shelf
Registration Statement covering such Registrable Securities until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 4(f) or until it is advised in writing (the "Advice") by the Company
that the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
Prospectus, and, if so directed by the Company, such Holder will, or will
request the managing underwriter or underwriters, if any, to, deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice; provided, however,
that the Company shall not give a Suspension Notice until after the Shelf
Registration Statement has been declared effective and shall not give more than
two (2) Suspension Notices during any period of twelve consecutive months and in
no event shall the period from the date on which any Holder receives a
Suspension Notice to the date on which any Holder receives either the Advice or
copies of the supplemented or amended Prospectus contemplated by Section 4(f)
(the "Suspension Period") exceed 45 days. In the event that the Company shall
give any Suspension Notice, (i) the Company shall use its best efforts and take
such actions as are reasonably necessary to render the Advice and end the
Suspension Period as promptly as practicable and (ii) the time periods for which
a Shelf Registration Statement is required to be kept effective pursuant to
Section 2 hereof shall be extended by the number of days during the Suspension
Period.
If any Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such Holder
shall have the right to require (i) the insertion therein of language, in form
and substance reasonably satisfactory to such Holder, 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 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 Company,
or (ii) in the event that such reference to such Holder by name or otherwise is
not required by the Securities Act or any similar Federal or state "blue sky"
statute and the rules and regulations thereunder then in force, the deletion of
the reference to such Holder.
SECTION 5. REGISTRATION EXPENSES. Any and all expenses incident to
the Company's performance of or compliance with this Agreement, including
without limitation, all Commission and securities exchange, NASDAQ or NASD
registration and filing fees, all fees and expenses incurred in connection with
compliance
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with state securities or "blue sky" laws (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection with
"blue sky" qualifications of the Registrable Securities), printing expenses,
messenger and delivery expenses, internal expenses (including, without
limitation, all salaries and expenses of the Company's officers and employees
performing legal or accounting duties) , all expenses for word processing,
printing and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities
sales agreements and other documents relating to the performance of and
compliance with this Agreement, the fees and expenses incurred in connection
with the listing of the Registrable Securities, the fees and disbursements of
counsel for the Company and of the independent certified public accountants of
the Company (including the expenses of any comfort letters or costs associated
with the delivery by independent certified public accountants of a comfort
letter or comfort letter requested pursuant to Section 4 (n) , Securities Act
liability insurance (if the Company elects to obtain such insurance), the
reasonable fees and expenses of any special experts or other Persons retained
BY the Company in connection with any registration, the reasonable fees and
disbursements of Holders, Counsel and any reasonable out-of-pocket expenses of
the Folders and their agents, including any reasonable travel costs, but
excluding underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities (all such
expenses being herein called "Registration Expenses"), will be borne by the
Company whether or not the Shelf Registration Statement to which such expenses
relate becomes effective.
SECTION 6. INDEMNIFICATION AND CONTRIBUTION.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, each Holder,
its partners, officers, directors, trustees, stockholders, employees, agents
and investment advisers, and each Person who controls such Holder within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, or is under common control with, or is controlled by, such
Holder, together with the partners, officers, directors, trustees,
stockholders, employees, agents and investment advisors of such controlling
Person (collectively, the "Controlling Persons") , from and against all losses,
claims, damages, liabilities and expenses (including without limitation any
legal or other fees and expenses incurred by any Holder or any such Controlling
Person in connection with defending or investigating any action or claim in
respect thereof) (collectively, the "Damages") to which such Holder, its
partners, officers, directors, trustees, stockholders, employees, agents and
investment advisers, and any such Controlling Person may become subject under
the Securities Act or otherwise, insofar as such Damages (or proceedings in
respect thereof) arise out of or are based upon any untrue or alleged untrue
statement of material fact contained in any Registration
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Statement (or any amendment thereto) pursuant to which Registrable Securities
were registered under the Securities Act, including all documents incorporated
therein by reference, or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein in light of
the circumstances under which they were made not misleading, or caused by any
untrue statement or alleged untrue statement of a material fact contained in
any Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in light of the circumstances under which they were made not
misleading, except insofar as such Damages arise out of or are based upon any
such untrue statement or omission based upon information relating to such
Holder furnished in writing to the Company by such Holder expressly for use
therein; provided, however, that the Company shall not be liable to any Holder
under this Section 6(a) to the extent that any such Damages were caused by the
fact that such Holder sold Securities to a Person as to whom it shall be
established that there was not sent or given, or deemed sent or given pursuant
to Rule 153 under the Securities Act, at or prior to the written confirmation
OF such sale, a copy of the Prospectus as then amended or supplemented if, and
only if, (i) the Company has previously furnished copies of such amended or
supplemented Prospectus to such Holder and (ii) such Damages were caused by any
untrue statement or omission or alleged untrue statement or omission contained
in the Prospectus so delivered which was corrected in such amended or
supplemented Prospectus. In connection with an underwritten offering, the
Company will indemnify the underwriters thereof, their officers and directors
and each Person who controls such underwriters (within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same
extent as provided above with respect to the indemnification of the Holders of
Registrable Securities except with respect to information provided by the
underwriter specifically for inclusion therein.
(b) Indemnification by the Holders. Each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, its
directors, officers and each Person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Holder, but only with reference to information relating to such Holder
furnished to the Company in writing by such Holder expressly for use in any
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto); provided, however, that such Holder shall not
be obligated to provide such indemnity to the extent that such Damages result
from the failure of the Company to promptly amend or take action to correct or
supplement any such Registration Statement or Prospectus on the basis of
corrected or supplemental information provided in writing by such Holder to the
Company expressly for such purpose. In no
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event shall the liability of any Holder of Registrable Securities hereunder he
greater in amount than the amount of the proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Indemnification Procedures. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to either paragraph
(a) or (b) above, such Person (the indemnified party") shall promptly notify
the Person against whom such indemnity may be sought (the "indemnifying party")
in writing and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceedings and shall pay the fees and disbursements of such
counsel relating to such proceeding. The failure of an indemnified party to
notify an indemnifying party with respect to a particular proceeding shall not
relieve the indemnifying party from any obligation or liability (i) which it
may have pursuant to this Agreement if the indemnifying party is not
substantially prejudiced by the failure to notify or (ii) which it may have
otherwise than pursuant to this Agreement. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel, or (ii) the indemnifying party fails
promptly to assume the defense of such proceeding or fails to employ counsel
reasonably satisfactory to such indemnified party or parties, or (iii) (A) the
named parties to any such proceeding (including any impleaded parties) include
both such indemnified party or parties and any indemnifying party or an
Affiliate of such indemnified party or parties or of any indemnifying party,
(B) there may be one or more defenses available to such indemnified party or
parties or such Affiliate of such indemnified party or parties that are
different from or additional to those available to any indemnifying party or
such Affiliate of any indemnifying party and (C) such indemnified party or
parties shall have been advised by such counsel that there may exist a conflict
of interest between or among such indemnified party or parties or such
Affiliate of such indemnified party or parties and any indemnifying party or
such Affiliate of any indemnifying party, in which case, if such indemnified
party or parties notifies the indemnifying party or parties in writing that it
elects to employ separate counsel of its choice at the expense of the
indemnifying parties, the indemnifying parties shall not have the right to
assume the defense thereof and such counsel shall be at the expense of the
indemnifying parties, it being understood, however, that unless there exists a
conflict among indemnified parties, the indemnifying parties shall not, in
connection with any one such proceeding or separate but substantially similar
or related proceedings in the same jurisdiction, arising out of the same
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general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (together with appropriate local
counsel) at any time for such indemnified party or parties. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent but, if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party or parties from and against any loss or liability by reason
of such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which such indemnified party is a party,
and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) Contribution. To the extent that the indemnification
provided for in paragraph (a) or (b) of this Section 6 is unavailable to an
indemnified party or insufficient in respect of any Damages, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such Damages (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Holders on the other hand from the offering of such 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 the Holders on the other hand
in connection with the statements or omissions that resulted in such Damages,
as well as any other relevant equitable considerations. The relative fault of
the Company on the one hand and of the Holders on the other hand 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 Company or by the
Holders and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
Notwithstanding the provisions of this Section 6(d), no Holder shall
be required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities of such Holder were offered to the
public (less any underwriting discounts and commissions) exceeds the amount of
any damages which such Holder has otherwise been required to pay by reason of
such untrue statement or omission. Each Holder's obligation to contribute
pursuant to this Section 6(d) is several in the proportion that the proceeds of
the offering received by such Holder bears to the total proceeds of the
offering received by all the Holders and not joint.
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If indemnification is available under paragraph (a) or (b) of this
Section 6, the indemnifying parties shall indemnify each indemnified party to
the full extent provided in such paragraphs without regard to the relative
fault of said indemnifying party or indemnified party or any other equitable
consideration provided for in this Section 6(d).
The Company and each Holder agrees that it would not be just or
equitable if contribution pursuant to this Section 6(d) were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to herein. The amount paid or payable
by an indemnified party as a result of the Damages referred to in this Section
6 shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred (and not otherwise reimbursed) by
such indemnified party in connection with investigating or defending any such
action or 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. The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
SECTION 7. RULE 144. The Company covenants that it will file any
reports required to be filed by it under the Securities Act and the Exchange
Act (or, if the Company is not required to file such reports, it will, upon the
request of any Holder, make publicly available other information so long as
necessary to permit sales under Rule 144 under the Securities Act), and it will
take such further action as any Holder may 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 Commission. Upon the request of any Holder, the Company will deliver to
such Holder a written statement as to whether it has complied with such
requirements.
SECTION 8. RULE 144A. The Company covenants that it 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 Commission
thereunder (or if the Company is not required to file such reports, it will,
upon the request of any Holder, make available other information so long as
necessary to permit sales of the Registrable Securities pursuant to Rule 144A
under the Securities Act), all to the extent as may be required from time to
time to enable such Holder to sell then Securities without registration under
the Securities Act within the limitation of the exemptions provided by (a) Rule
144A, as such
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rule may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the Commission.
SECTION 9. RESTRICTIONS ON SALE BY THE COMPANY AND OTHERS. The
Company agrees and it shall use its best efforts to cause its Affiliates to
agree (i) not to effect any public sale or distribution of any securities
similar to those being registered in accordance with Section 2 hereof, or any
securities convertible into or exchangeable into or exchangeable or exercisable
for such securities, during the 14 days prior to, and during the 180-day period
beginning on, the effective date of any Registration Statement (except as part
of such Registration Statement) if, and to the extent, requested by the
managing underwriter or underwriters in the case of an underwritten public
offering and (ii) to use their best efforts to ensure that any agreement
entered into after the date of this Agreement pursuant to which the Company
issues or agrees to issue any privately placed securities (other than to
officers or employees) shall contain a provision under which holders of such
securities agree not to effect any sale or distribution of any such securities
during the periods described in (i) above, in each case including a sale
pursuant to Rule 144 or Rule 144A under the Securities Act (except as part of
any such registration, if permitted); provided, however, that the provisions of
this Section 9 shall not prevent the conversion or exchange of any securities
pursuant to their terms into or for other securities.
SECTION 10. MISCELLANEOUS.
(a) No Inconsistent Agreements. The Company has not
entered into nor will the Company on or after the date of this Agreement enter
into any agreement which is inconsistent with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's other issued and outstanding securities under any such
agreements.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company has obtained the written
consent of Holders of at least a majority in interest of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or consent; provided, however, that, no amendment, modification,
supplement, waiver or consent to any departure from the provisions of Section 4
hereof (other than any immaterial amendment, modification, supplement, waiver
or consent) shall be effective as against any Holder of Registrable Securities
unless consented to in writing by such Holder.
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(c) Notices. All notices and other communications
provided for or permitted hereunder shall be in writing and shall be deemed to
have been duly given if delivered personally or sent by telecopier, registered
or certified mail (return receipt requested), postage prepaid or courier to the
parties at their respective addresses set forth on the signature pages hereof
(or at such other address for any party as shall be specified by like notice,
provided that notices of a change of address shall be effective only upon
receipt thereof).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; by
confirmed receipt of transmission, if telecopied; and on the next Business Day
if timely delivered to a courier guaranteeing overnight delivery.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders. If any transferee of any Holder shall
acquire Registrable Securities in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities
such person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement and such person shall
be entitled to receive the benefits hereof.
(e) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
regard to principles of conflicts of law.
(h) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained herein shall not
be in any way impaired thereby, it being intended that all of the rights and
privileges of the Holders shall be enforceable to the fullest extent permitted
by law.
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(i) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be the
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(j) Attorneys' Fees. In any action or proceeding brought
to enforce any provision of this Agreement or where any provision hereof is
validly asserted as a defense, the successful party shall, to the extent
permitted by applicable law, be entitled to recover reasonable attorneys' fees
in addition to any other available remedy.
(k) Further Assurances. Each party shall cooperate and
take such action as may be reasonably requested by another party in order to
carry out the provisions and purposes of this Agreement and the transactions
contemplated hereby.
(l) Remedies. In the event of a breach or a threatened
breach by any party to this Agreement of its obligations under this Agreement,
any party injured or to be injured by such breach will be entitled to specific
performance of its rights under this Agreement or to injunctive relief, in
addition to being entitled to exercise all rights provided in this Agreement
and granted by law. The parties agree that the provisions of this Agreement
shall be specifically enforceable, it being agreed by the parties that remedies
at law for violations hereof (including monetary damages) are inadequate and
that the right to object in any action for specific performance or injunctive
relief hereunder on the basis that a remedy at law would be adequate is waived.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BEC Group, Inc.
By:
--------------------------------
Name:
Title:
With a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
One Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx X. Xxxxx, Xx.
20
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
HOLDER:
By:
--------------------------------
Name:
Title:
Address:
With a copy to:
