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EXHIBIT 3
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COMPLETE BUSINESS SOLUTIONS, INC.
REGISTRATION RIGHTS AGREEMENT
Dated as of April 20, 2000
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Table of Contents
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1. Background...............................................................................................1
2. Definitions..............................................................................................1
3. Registration.............................................................................................5
3.1. Registration on Request.........................................................................5
(a) Requests...............................................................................5
(b) Obligation to Effect Registration......................................................5
(c) Registration Statement Form............................................................6
(d) Expenses...............................................................................6
(e) Inclusion of Other Securities..........................................................7
(f) Effective Registration Statement.......................................................7
(g) Pro Rata Allocation....................................................................7
3.2. Piggyback Registration..........................................................................8
3.3. Registration Procedures........................................................................10
3.4. Underwritten Offerings.........................................................................14
(a) Underwritten Offerings Exclusive......................................................14
(b) Underwriting Agreement................................................................14
(c) Selection of Underwriters.............................................................14
(d) Incidental Underwritten Offerings.....................................................15
(e) Hold Back Agreements..................................................................15
3.5. Preparation; Reasonable Investigation..........................................................16
3.6. Other Registrations............................................................................16
3.7. Indemnification................................................................................16
(a) Indemnification by the Company........................................................16
(b) Indemnification by the Sellers........................................................18
(c) Notices of Claims, etc................................................................18
(d) Other Indemnification.................................................................19
(e) Other Remedies........................................................................19
(f) Officers and Directors................................................................20
4. Miscellaneous...........................................................................................20
4.1. Rule 144; Legended Securities; etc.............................................................20
4.2. Amendments and Waivers.........................................................................20
4.3. Nominees for Beneficial Owners.................................................................21
4.4. Successors, Assigns and Transferees............................................................21
4.5. Notices........................................................................................21
4.6. No Inconsistent Agreements.....................................................................22
4.7. Remedies.......................................................................................22
4.8. Stock Splits, etc..............................................................................22
4.9. Term...........................................................................................23
4.10. Severability...................................................................................23
4.11. Headings.......................................................................................23
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Table of Contents
(continued)
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4.12. Counterparts...................................................................................23
4.13. Governing Law..................................................................................23
4.14. Waiver of Jury Trial...........................................................................24
4.15. No Third Party Beneficiaries...................................................................24
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
April 20, 2000, is entered into by and among CD&R-COOKIE Acquisition L.L.C., a
Delaware limited liability company ("CDR-Cookie VI") and CDR-COOKIE Acquisition
VI-A L.L.C., a Delaware limited liability company ("CDR-Cookie VI-A" and,
together with CDR-Cookie VI, the "Shareholders") and COOKIE, a Michigan
corporation (the "Company").
1. Background.
(a) Pursuant to a stock purchase agreement, dated as of March 17,
2000, by and among the Shareholders and the Company (the "Company Stock Purchase
Agreement"), the Shareholders agreed to purchase from the Company, and the
Company agreed to sell to the Shareholders, at the Initial Closing and at the
Subsequent Closing (each, as defined in the Stock Purchase Agreement): (i) an
aggregate of 200,000 shares of the Company's Series A preferred stock, without
par value (the "Preferred Shares"), which shall be convertible into shares of
the Company's common stock, without par value (the "Common Stock"), pursuant to
the certificate of designation with respect to the Preferred Shares filed with
the Department of Consumer and Industry Services of the State of Michigan (the
"Certificate of Designation"); (ii) a warrant to purchase 3.5 million shares of
Common Stock at an exercise price of $25 per share (the "25 Warrant") and (iii)
a warrant to purchase 1.8 million shares of Common Stock at an exercise price of
$31 per share (the "31 Warrant" and, together with the 25 Warrant, the
"Warrants").
(b) The Shareholders, the Fund or any of their respective
Affiliates may in the future acquire additional shares of Common Stock
("Additional Common Stock") from the Company or other Shareholders.
2. Definitions. For purposes of this Agreement, the following
terms have the following respective meanings:
"25 Warrant": is defined in Section 1(a).
"31 Warrant": is defined in Section 1(a).
"Additional Common Stock": is defined in Section 1(b).
"Affiliate": With respect to any Person, any other Person directly or
indirectly Controlling, Controlled by or under common Control with such first
Person. "Control" means the power to direct the affairs of a Person by reason of
ownership of voting securities, by contract or otherwise. Any director, member
of management or
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other employee of the Company or any of its subsidiaries who would not otherwise
be an Affiliate shall not be deemed to be an Affiliate of the Shareholders.
"Agreement": is defined in the introductory paragraph hereof.
"Board": The Board of Directors of the Company.
"Business Day": A day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required to close.
"CD&R": Xxxxxxx, Dubilier & Rice, Inc., a Delaware corporation.
"CDR - Cookie VI": is defined in the introductory paragraph to this
Agreement.
"CDR - Cookie VI-A" is defined in the introductory paragraph to this
Agreement.
"Certificate of Designation": is defined in Section 1(a).
"Common Stock": is defined in Section 1(a).
"Company": is defined in the introduction to this Agreement.
"Company Stock Purchase Agreement": is defined in Section 1(a).
"Conversion Shares": means the shares of Common Stock issuable upon
the conversion of the Preferred Shares.
"Exchange Act": The Securities Exchange Act of 1934, as amended, or
any successor Federal statute, and the rules and regulations thereunder which
shall be in effect at the time. Any reference to a particular section thereof
shall include a reference to the corresponding section, if any, of any such
successor Federal statute, and the rules and regulations thereunder.
"Fund": means any of Xxxxxxx, Dubilier & Rice Fund VI Limited
Partnership, a Cayman Islands exempted limited partnership, Xxxxxxx, Dubilier &
Rice Fund VI-A Limited Partnership, a Cayman Islands exempted limited
partnership, and any other entity organized or managed by or affiliated with
CD&R.
"NASD": National Association of Securities Dealers, Inc.
"NASDAQ": The NASD Automated Quotation System.
"New York Court": is defined in Section 4.14.
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"Other Registrable Securities": means shares of Common Stock subject
to a contractual registration obligation arising under an agreement entered into
by the holders thereof and the Company prior to the date hereof and set forth in
Schedule 2.12(c) of the Company Disclosure Schedule delivered under the Company
Stock Purchase Agreement.
"Person": Any natural person, firm, partnership, association,
corporation, company, trust, business trust, governmental entity or other
entity.
"Preferred Shares": is defined in Section 1(a).
"Public Offering": An underwritten public offering of Common Stock led
by at least one underwriter of nationally recognized standing.
"Registrable Securities": (a) (i) the Conversion Shares, (ii) the
Additional Common Stock and (iii) the Warrant Shares; provided that the Warrant
Shares shall be deemed to constitute "Registrable Securities" only after the
first anniversary of the date of the Company Stock Purchase Agreement; and (b)
any securities issued or issuable with respect to any Common Stock referred to
in the foregoing clauses (w) upon any conversion or exchange thereof, (x) by way
of stock dividend or stock split, (y) in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or (z)
otherwise, in all cases subject to the last paragraph of Section 3.3. As to any
particular Registrable Securities, once issued such securities shall cease to be
Registrable Securities when (A) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, (B) such securities shall have been distributed to the public in
reliance upon Rule 144, (C) such securities become eligible for sale under Rule
144(k) by the holder thereof without volume limitations, (D) such securities
shall have been otherwise transferred, new certificates for such securities not
bearing a legend restricting further transfer shall have been delivered by the
Company and subsequent disposition of such securities shall not require
registration or qualification of such securities under the Securities Act or any
similar state law then in force, or (E) such securities shall have ceased to be
outstanding.
"Registration Expenses": All expenses incident to the Company's
performance of its obligations under or compliance with Section 3, including,
but not limited to, all registration and filing fees, all fees and expenses of
complying with securities or blue sky laws, all fees and expenses associated
with listing securities on exchanges or NASDAQ, all fees and other expenses
associated with filings with the NASD (including, if required, the fees and
expenses of any "qualified independent underwriter" and its counsel), all
printing expenses, the fees and disbursements of counsel for the Company and of
its independent public accountants, and the expenses of any special audits made
by such accountants required by or incidental to such
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performance and compliance, but not including (a) fees and disbursements of
counsel retained by the holders of Registrable Securities or (b) any
underwriting discounts or commissions or any transfer taxes payable in respect
of the sale of Registrable Securities by the holders thereof.
"Requisite Percentage of Shareholders": The holder or holders of at
least 50% (by number of shares) of the Registrable Securities at the time
outstanding.
"Rule 144": Rule 144 (or any successor provision) under the Securities
Act.
"Rule 144A": Rule 144A (or any successor provision) under the
Securities Act.
"Rule 144(k)": Rule 144(k) (or any successor provision) under the
Securities Act.
"Rule 145": Rule 145 (or any successor provision) under the Securities
Act.
"Securities Act": The Securities Act of 1933, as amended, or any
successor Federal statute, and the rules and regulations thereunder which shall
be in effect at the time. Any reference to a particular section thereof shall
include a reference to the corresponding section, if any, of any such successor
Federal statute, and the rules and regulations thereunder.
"Securities and Exchange Commission": The Securities and Exchange
Commission or any other Federal agency at the time administering the Securities
Act or the Exchange Act.
"Shareholders": is defined in the introductory paragraph of this
Agreement.
"Special Registration": (a) The registration of shares of equity
securities or options or other rights in respect thereof to be offered to
directors, members of management, employees, consultants or sales agents,
distributors or similar representatives of the Company or its direct or indirect
subsidiaries or (b) the registration of equity securities and/or options or
other rights in respect thereof solely on Form S-4 or S-8 or any successor form.
"Warrants": is defined in Section 1(a).
"Warrant Shares": means the shares of Common Stock issuable upon the
exercise of the Warrants.
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3. Registration.
3.1. Registration on Request.
(a) Requests. Subject to the provisions of Section 3.6, at any time
or from time to time, the Requisite Percentage of Shareholders shall have the
right to make written requests that the Company effect registrations under the
Securities Act of all or part of the Registrable Securities of the holder or
holders making such request, which requests shall specify the intended method of
disposition thereof by such holder or holders.
(b) Obligation to Effect Registration. Upon receipt by the Company
of any request for registration pursuant to Section 3.1(a), the Company will
promptly give written notice of such requested registration to all holders of
Registrable Securities, and thereupon will use its best efforts to effect the
registration under the Securities Act of
(i) the Registrable Securities which the Company has been so
requested to register pursuant to Section 3.1(a), and
(ii) all other Registrable Securities which the Company has been
requested to register by the holders thereof by written request given to
the Company within 30 days after the Company has given such written notice
(which request shall specify the intended method of disposition of such
Registrable Securities),
all to the extent required to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered. Notwithstanding the preceding sentence:
(x) the Company shall not be required to effect a registration
requested pursuant to Section 3.1(a) if (A) with respect to the first three
such requests, the aggregate number of Registrable Securities referred to
in clauses (i) and (ii) of the preceding sentence to be included in such
registration shall be less than 1,480,000, shares and (B) thereafter, the
number of Registrable Securities to be so included shall be less than
740,000, provided, that in no event shall the Company be required to effect
a registration requested pursuant to Section 3.1(a) if the Board
determines, in its good faith judgment, after consultation with a firm of
nationally recognized underwriters that the aggregate net proceeds from the
disposition of the Registrable Securities for which registration has been
so requested would be less than $50,000,000; and
(y) if the Board determines in its good faith judgment, after
consultation with a firm of nationally recognized underwriters, that there
will be an adverse effect on a then contemplated Public Offering, the
Requisite
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Percentage of Shareholders shall be given notice of such fact and shall be
deemed to have withdrawn such request and such registration shall not be
deemed to have been effected or requested pursuant to this Section 3.1; and
(z) the Company shall be entitled to postpone for a reasonable
period of time not to exceed 60 days from the date a request pursuant to
Section 3.1(a) is received, the filing of any registration statement
otherwise required to be prepared and filed by it pursuant to this Section
3.1, if the Board of Directors of the Company (i) in good faith determines
that such registration and offering would materially adversely affect or
interfere with any proposed or pending financing, acquisition, corporate
reorganization or other material transaction or the conduct or outcome of
any material litigation involving the Company or any of its subsidiaries,
and (ii) as promptly as practicable gives the relevant holders of
Registrable Securities written notice of such postponement, setting forth
the duration of and reasons for such postponement; provided, however, that
the Company shall not effect such a postponement more than twice in any 180
day period, for no more than an aggregate total of 60 days. If the Company
shall so postpone the filing of a registration statement, the holder or
holders of Registrable Securities making the request pursuant to Section
3.1(a) shall within 10 days after receipt of the notice of postponement
advise the Company in writing whether or not it has determined to withdraw
its request for registration. Failure by such holder or holders to timely
notify the Company of its determination shall for all purposes be treated
as a withdrawal of the request for registration. In the event of a
withdrawal, such request for registration shall not be deemed exercised for
purposes of determining whether such holder or holders still have the right
to make a request for registration pursuant to this Section 3.1.
(c) Registration Statement Form. Each registration requested
pursuant to this Section 3.1 shall be effected by the filing of a registration
statement on Form S-1, Form S-2 or Form S-3 (or any other form which includes
substantially the same information as would be required to be included in a
registration statement on such forms as presently constituted), the choice of
such form to be made by holders holding at least a majority (by number of
shares) of the Registrable Securities as to which registration has been
requested pursuant to this Section 3.1, unless the use of a specific or
different form is required by law.
(d) Expenses. The Company will pay all Registration Expenses in
connection with the first three registrations effected pursuant to a request
under Section 3.1(a). The Registration Expenses in connection with each other
registration, if any, requested under Section 3.1(a) shall be apportioned among
the holders whose Registrable Securities are then being registered, on the basis
of the respective amounts (by number of shares) of Registrable Securities then
being registered. However, in the case of each registration requested under
Section 3.1(a), the Company shall pay all
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amounts in respect of (A) any allocation of salaries of personnel of the Company
and its subsidiaries or other general overhead expenses of the Company and its
subsidiaries or other expenses for the preparation of financial statements or
other data normally prepared by the Company and its subsidiaries in the ordinary
course of its business, (B) the expenses of any officers' and directors'
liability insurance, (C) the expenses and fees for listing the securities to be
registered on each exchange on which similar securities issued by the Company
are then listed or, if no such securities are then listed, on an exchange
selected by the Company or on NASDAQ and (D) all fees associated with filings
required to be made with the NASD (including, if required, the fees and expenses
of any "qualified independent underwriter" and its counsel). Notwithstanding the
provisions of this Section 3.1(d) or of Section 3.2, each seller of Registrable
Securities shall pay all Registration Expenses to the extent required to be paid
by such seller by applicable law.
(e) Inclusion of Other Securities. The Company shall neither
register, nor enter into any agreement obligating it to register, securities
(other than Registrable Securities and, to the extent contractually required as
of the date hereof, Other Registrable Securities) for sale for the account of
any Person other than the Company in any registration requested pursuant to
Section 3.1(a) unless permitted to do so by the written consent of holders
holding at least a majority (by number of shares) of the Registrable Securities
proposed to be sold in such registration, which consent shall not unreasonably
be withheld, it being understood and agreed that such holders shall not be
deemed to be unreasonable if they in their good faith judgment believe that the
inclusion of the securities of any such other Person will adversely affect the
price or marketability of the shares such holders of Registrable Securities or
the Company propose to sell in such registration.
(f) Effective Registration Statement. A registration requested
pursuant to Section 3.1(a) will not be deemed to have been effected unless it
has become effective for the period specified in Section 3.3(b). Notwithstanding
the preceding sentence, a registration requested pursuant to Section 3.1(a) that
does not become effective after the Company has filed a registration statement
with respect thereto solely by reason of the refusal to proceed of the holder or
holders of Registrable Securities requesting the registration shall be deemed to
have been effected by the Company at the request of such holder or holders.
(g) Pro Rata Allocation. If any registration statement made
pursuant to Section 3.1(a) involves an underwritten offering and the managing
underwriter of such offering (or, in connection with an offering that is not
underwritten, an investment banker) shall advise the Company that, in its view,
the number of securities requested to be included in such registration exceeds
the largest number that can be sold in an orderly manner in such offering
without adversely affecting the price range of such offering, the Company shall
include in such registration:
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(i) first, all shares of Common Stock requested to be included in
such registration by the Requisite Percentage of Shareholders (and, to the
extent contractually required as of the date hereof, Other Registrable
Securities);
(ii) second, to the extent that the number of securities to be
registered pursuant to clause (i) is less than the largest number that can
be sold in an orderly manner in such offering within a price range
acceptable to the selling holders of Registrable Securities, securities
that the Company proposes to register; and
(iii) third, to the extent that the number of shares registered
pursuant to clauses (i) and (ii) is less than the largest number that can
be sold in an orderly manner in such offering within a price range
acceptable to the selling holders of Registrable Securities, the securities
requested to be included by holders of Other Registrable Securities and, if
permitted by the holders of Registrable Securities pursuant to Section
3.1(e), any other holders.
The securities to be included in any such registration pursuant to clauses (i)
and, except as otherwise contractually required as of the date hereof, (iii)
shall be allocated on a pro rata basis among all holders requesting that
securities be included in such registration pursuant to such clause on the basis
of the number of securities requested to be included by such holders. If a
holder of Registrable Securities requesting a registration pursuant to Section
3.1 is unable to sell at least 75% of the number of securities it requested to
be included therein by virtue of the inclusion of other holders of the Company's
securities included in such offering, such request for registration shall not be
deemed exercised for purposes of determining whether such holder of Registrable
Securities shall have the right to make a further request for registration
pursuant to Section 3.1
3.2. Piggyback Registration. If the Company at any time proposes to
register any of its equity securities (as defined in the Exchange Act) under the
Securities Act (other than pursuant to Section 3.1 or pursuant to a Special
Registration), whether or not for sale for its own account, and the registration
form to be used may be used for the registration of Registrable Securities, it
will at such time give prompt written notice to all holders of Registrable
Securities of its intention to do so and, upon the written request of any holder
of Registrable Securities given to the Company within 30 days after the Company
has given any such notice (which request shall specify the Registrable
Securities intended to be disposed of by such holder and the intended method of
disposition thereof), the Company will use its best efforts to effect the
registration under the Securities Act of all Registrable Securities that the
Company has been so requested to register by the holders thereof, to the extent
required to permit the disposition (in accordance with the intended methods
thereof as aforesaid) of the Registrable Securities so to be registered,
provided that:
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(a) if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the registration
statement filed in connection with such registration, the Board shall determine
for any reason not to register such securities, the Company may, at its
election, give written notice of such determination to each holder of
Registrable Securities that was previously notified of such registration and,
thereupon, shall not register any Registrable Securities in connection with such
registration (but shall nevertheless pay the Registration Expenses in connection
therewith), without prejudice, however, to the rights of any holder or holders
of Registrable Securities to request that a registration be effected under
Section 3.1; and
(b) if the Company shall be advised in writing by the managing
underwriters (or, in connection with an offering which is not underwritten, by
an investment banker) that in their or its opinion the number of securities
requested to be included in such registration (whether by the Company, pursuant
to this Section 3.2 or pursuant to any other rights granted by the Company to a
holder or holders of its securities to request or demand such registration or
inclusion of any such securities in any such registration) exceeds the number of
such securities which can be sold in such offering,
(i) the Company shall include in such registration the number (if
any) of Registrable Securities so requested to be included that in the
opinion of such underwriters or investment banker, as the case may be, can
be sold and shall not include in such registration any securities (other
than securities being sold by the Company, which shall have priority in
being included in such registration) so requested to be included other than
Registrable Securities (and, to the extent contractually required as of the
date hereof, Other Registrable Securities), unless all Registrable
Securities requested to be so included are included therein, and
(ii) if in the opinion of such underwriters or investment banker, as
the case may be, some but not all of the Registrable Securities may be so
included, all holders of Registrable Securities requested to be included
therein (and, to the extent contractually required as of the date hereof,
holders of Other Registrable Securities) shall share pro rata in the number
of shares of Registrable Securities included in such Public Offering on the
basis of the number of Registrable Securities requested to be included
therein by such holders, provided that, in the case of a registration
initially requested or demanded by a holder or holders of securities other
than Registrable Securities, pursuant to a contractual registration
obligation, the holders of the Registrable Securities requested to be
included therein and the holders of such other securities shall share pro
rata (based on the number of shares if the requested or demanded
registration is to cover only Common Stock and, if not, based on the
proposed offering price of the total number of securities included in such
Public Offering requested to be included therein), except to the extent
contractually required as of the date hereof in the
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case of Other Registrable Securities requesting registration, in which
case such Other Registrable Securities shall have priority over
Registrable Securities,
and the Company shall so provide in any registration agreement hereinafter
entered into with respect to any of its securities.
The Company will pay all Registration Expenses in connection with each
registration of Registrable Securities requested pursuant to this Section 3.2.
No registration effected under this Section 3.2 shall relieve the Company from
its obligation to effect registrations upon request under Section 3.1.
3.3. Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Sections 3.1 and 3.2, the
Company will promptly:
(a) subject to clauses (x), (y) and (z) of Section 3.1(b), prepare
and file with the Securities and Exchange Commission as soon as practicable and
in any event within 120 days, after receipt of a request pursuant to Section 3.1
a registration statement with respect to such securities, make all required
filings with the NASD and use best efforts to cause such registration statement
to become effective at the nearest practicable date;
(b) prepare and file with the Securities and Exchange Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith and such other documents as may be
necessary to keep such registration statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement until such time as all of such
securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such registration
statement, but in no event for a period of more than six months after such
registration statement becomes effective;
(c) furnish to counsel (if any) selected by the holders of a
majority (by number of shares) of the Registrable Securities covered by such
registration statement and to counsel for the underwriters in any underwritten
offering copies of all documents proposed to be filed with the Securities and
Exchange Commission (including all documents to be filed on a confidential
basis) in connection with such registration, which documents will be subject to
the review of such counsel; the Company shall not file any registration
statement or prospectus or any amendments or supplements thereto pursuant to a
registration under Section 3.1(a) if the holders of a majority of the
Registrable Securities covered by such registration statement, their counsel, or
the underwriters, if any, shall reasonably object in writing;
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(d) furnish to each seller of such securities, without charge, such
number of conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case, including all exhibits and
documents filed therewith (other than those filed on a confidential basis),
except that the Company shall not be obligated to furnish any seller of
securities with more than two copies of such exhibits and documents), such
number of copies of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus) in conformity
with the requirements of the Securities Act, and such other documents, as such
seller may reasonably request in order to facilitate the disposition of the
securities owned by such seller;
(e) use its best efforts to register or qualify the securities
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions as each seller shall request, and do any and all
other acts and things which may be necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the securities owned by
such seller, except that the Company shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any jurisdiction
wherein it is not so qualified, subject itself to taxation in any jurisdiction
wherein it is not so subject, or take any action which would subject it to
general service of process in any jurisdiction wherein it is not so subject;
(f) furnish to each seller a signed counterpart, addressed to the
sellers, of
(i) an opinion of counsel for the Company experienced in securities
law matters, dated the effective date of the registration statement, and
(ii) a "comfort" letter signed by the independent public accountants
who have issued an audit report on the Company's financial statements
included in the registration statement, subject to such seller having
executed and delivered to the independent public accountants such
certificates and documents as such accountants shall reasonably request,
covering substantially the same matters with respect to the registration
statement (and the prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to the underwriters in underwritten Public
Offerings of securities;
(g)(i) notify each seller of any securities covered by such
registration statement if such registration statement, at the time it or any
amendment thereto became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not
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misleading, and, as promptly as practicable, prepare and file with the
Securities and Exchange Commission a post-effective amendment to such
registration statement and use best efforts to cause such post-effective
amendment to become effective such that such registration statement, as so
amended, shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (ii) notify each holder of Registrable
Securities covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, if the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, and, as
promptly as is practicable, prepare and furnish to such holder a reasonable
number of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(h) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
of the Company complying with the provisions of Section 11(a) of the Securities
Act and Rule 158 under the Securities Act;
(i) notify each seller of any securities covered by such registration
statement (i) when such registration statement, or any post-effective amendment
to such registration statement, shall have become effective, or any amendment of
or supplement to the prospectus used in connection therewith shall have been
filed, (ii) of any request by the Securities and Exchange Commission to amend
such registration statement or to amend or supplement such prospectus or for
additional information, (iii) of the issuance by the Securities and Exchange
Commission of any stop order suspending the effectiveness of such registration
statement or of any order preventing or suspending the use of any preliminary
prospectus, and (iv) of the suspension of the qualification of such securities
for offering or sale in any jurisdiction, or of the institution of any
proceedings for any of such purposes;
(j) use its best efforts (i) (A) to list such securities on any
securities exchange on which the Common Stock is then listed or, if no Common
Stock is then listed, on an exchange selected by the Company, if such listing is
then permitted under the rules of such exchange or (B) if such listing is not
practicable or the Board determines that quotation as a NASDAQ National Market
System security is preferable, to secure designation of such securities as a
NASDAQ "national market system security" within the meaning of Rule 11Aa2-1
under the Exchange Act or, failing that, to secure
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NASDAQ authorization for such securities, and, without limiting the foregoing,
to arrange for at least two market makers to register as such with respect to
such securities with the NASD, (ii) to provide a transfer agent and registrar
for such Registrable Securities not later than the effective date of such
registration statement and (iii) to obtain a CUSIP number for the Registrable
Securities; and
(k) use every reasonable effort to obtain the lifting of any stop
order that might be issued suspending the effectiveness of such registration
statement or of any order preventing or suspending the use of any preliminary
prospectus.
The Company may require each seller of any securities as to which any
registration is being effected to furnish to the Company such information
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request in writing and as shall be required by law
in connection therewith. Each such holder agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such holder not materially
misleading.
The Company agrees not to file or make any amendment to any
registration statement with respect to any Registrable Securities, or any
amendment of or supplement to the prospectus used in connection therewith, which
refers to any seller of any securities covered thereby by name, or otherwise
identifies such seller as the holder of any securities of the Company, without
the consent of such seller, such consent not to be unreasonably withheld, except
that no such consent shall be required for any disclosure that is required by
law.
By acquisition of Registrable Securities, each holder of such
Registrable Securities shall be deemed to have agreed that upon receipt of any
notice from the Company pursuant to Section 3.3(g), such holder will promptly
discontinue such holder's disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until such holder
shall have received, in the case of clause (i) of Section 3.3(g), notice from
the Company that such registration statement has been amended, as contemplated
by Section 3.3(g), and, in the case of clause (ii) of Section 3.3(g), copies of
the supplemented or amended prospectus contemplated by Section 3.3(g). If so
directed by the Company, each holder of Registrable Securities will deliver to
the Company (at the Company's expense) all copies, other than permanent file
copies, in such holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice. In the event that the Company
shall give any such notice, the period mentioned in Section 3.3(b) shall be
extended by the number of days during the 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
Section 3.3(g).
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Notwithstanding any other provision of this Agreement, the parties
hereto acknowledge that the Company shall have no obligation to prepare or file
any registration statement prior to the time that financial information required
to be included therein is available for inclusion therein.
3.4. Underwritten Offerings. The provisions of this Section 3.4 do
not establish additional registration rights but instead set forth procedures
applicable, in addition to those set forth in Sections 3.1 through 3.3, to any
registration which is an underwritten offering.
(a) Underwritten Offerings Exclusive. Whenever a registration
requested pursuant to Section 3.1 is for an underwritten offering, only
securities which are to be distributed by the underwriters may be included in
the registration.
(b) Underwriting Agreement. If requested by the underwriters for
any underwritten offering by holders of Registrable Securities pursuant to a
registration requested under Section 3.1, the Company shall enter into an
underwriting agreement with such underwriters for such offering, such agreement
to be reasonably satisfactory in substance and form to the holders of a majority
(by number of shares) of the Registrable Securities to be covered by such
registration and to the underwriters and to contain such representations and
warranties by the Company and such other terms and provisions as are customarily
contained in agreements of this type, including, but not limited to, indemnities
to the effect and to the extent provided in Section 3.7, provisions for the
delivery of officers' certificates, opinions of counsel and accountants'
"comfort" letters and hold-back arrangements. The holders of Registrable
Securities to be distributed by such underwriters shall be parties to such
underwriting agreement and may, at their option, require that any or all of the
representations and warranties by, and the agreements on the part of, the
Company to and for the benefit of such underwriters be made to and for the
benefit of such holders of Registrable Securities and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement shall also be conditions precedent to the obligations of
such holders of Registrable Securities. If any condition to the obligations
under such underwriting agreement are not met or waived, and such failure to be
met or waived is not attributable to the fault of the holders of Registrable
Securities requesting a demand registration pursuant to Section 3.1(a), such
request for registration shall not be deemed exercised for purposes of
determining whether such registration has been effected for purposes of Section
3.1. No such holder of Registrable Securities shall be required by the Company
to make any representations or warranties to, or agreements with, the Company or
the underwriters other than as set forth in Section 3.4(e) and representations,
warranties or agreements regarding such holder and such holder's intended method
of distribution.
(c) Selection of Underwriters. Whenever a registration requested
pursuant to Section 3.1 is for an underwritten offering, the holders of a
majority of the
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shares requested to be included in such registration will have the right to
select one or more underwriters to administer the offering at least one of which
shall be an underwriter of nationally recognized standing reasonably
satisfactory to the Company. If the Company at any time proposes to register any
of its securities under the Securities Act for sale for its own account and such
securities are to be distributed by or through one or more underwriters, the
Company will have the right to select one or more underwriters to administer the
offering at least one of which shall be an underwriter of nationally recognized
standing.
(d) Incidental Underwritten Offerings. Subject to the provisions of
the proviso to the first sentence of Section 3.2, if the Company at any time
proposes to register any of its equity securities under the Securities Act
(other than pursuant to Section 3.1 or pursuant to a Special Registration),
whether or not for its own account, and such securities are to be distributed by
or through one or more underwriters, the Company will give prompt written notice
to all holders of Registrable Securities of its intention to do so and, if
requested by any holder of Registrable Securities, will arrange for such
underwriters to include the Registrable Securities to be offered and sold by
such holder among those to be distributed by such underwriters. The holders of
Registrable Securities to be distributed by such underwriters shall be parties
to the underwriting agreement between the Company and such underwriters and may,
at their option, require that any or all of the representations and warranties
by, and the other agreements on the part of, the Company to and for the benefit
of such underwriters shall also be made to and for the benefit of such holders
of Registrable Securities and that any or all of the conditions precedent to the
obligations of the underwriters under such underwriting agreement shall also be
conditions precedent to the obligations of such holders of Registrable
Securities. No such holder of Registrable Securities shall be required by the
Company to make any representations or warranties to, or agreements with, the
Company or the underwriters other than as set forth in Section 3.4(e) and
representations, warranties or agreements regarding such holder and such
holder's intended method of distribution.
(e) Hold Back Agreements. If and whenever the Company proposes to
register any of its equity securities under the Securities Act, whether or not
for its own account (other than pursuant to a Special Registration), or is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act pursuant to Section 3.1 or 3.2, each holder
of Registrable Securities, if required by the managing underwriter, agrees by
acquisition of such Registrable Securities not to effect (other than pursuant to
such registration) any public sale or distribution, including, but not limited
to, any sale pursuant to Rule 144 or Rule 144A, of any Registrable Securities,
any other equity securities of the Company or any securities convertible into or
exchangeable or exercisable for any equity securities of the Company during the
20 day period prior to or the 90 day period following the effective date of such
registration, provided that each holder of Registrable Securities further agrees
that, if required by the
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managing underwriter for such registered offering, such holder shall not effect
any such public sale or distribution during the 180 day period following the
effective date of such registration, or during such lesser period that is
applicable to any of Other Registrable Securities and securities held by the
Company's officers and directors and [R], and the Company agrees to cause each
holder of any equity security, or of any security convertible into or
exchangeable or exercisable for any equity security, of the Company purchased or
acquired from the Company at any time other than in a Public Offering to enter
into a similar agreement with the Company.
3.5. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement registering Registrable
Securities under the Securities Act, the Company will give the holders of such
Registrable Securities so to be registered and their underwriters, if any, and
their respective counsel and accountants the opportunity to participate in the
preparation of such registration statement, each prospectus included therein or
filed with the Securities and Exchange Commission, and each amendment thereof or
supplement thereto, and will give each of them such access to its books and
records and such opportunities to discuss the business of the Company with its
officers and the independent public accountants who have issued audit reports on
its financial statements as shall be necessary, in the opinion of such holders'
and such underwriters' respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
3.6. Other Registrations. If and whenever the Company is required
to use its best efforts to effect the registration of any Registrable Securities
under the Securities Act pursuant to Section 3.1 or 3.2, and if such
registration shall not have been withdrawn or abandoned, the Company shall not
be obligated to and shall not file any registration statement with respect to
any of its securities (including Registrable Securities and Other Registrable
Securities) under the Securities Act (other than a Special Registration),
whether of its own accord or at the request or demand of any holder or holders
of such securities, until a period of 270 days shall have elapsed from the
effective date of such previous registration. The Company agrees not to effect
(other than pursuant to such registration or pursuant to a Special Registration)
any public sale or distribution, or to file any registration statement (other
than such registration or a Special Registration) covering any, of its equity
securities, or any securities convertible into or exchangeable or exercisable
for such securities, for 180 days after, and during the 20 days prior to, the
effective date of any registration effected pursuant to Sections 3.1 or 3.2
hereunder, if so required by the managing underwriter.
3.7. Indemnification.
(a) Indemnification by the Company. In the event of any
registration of any Registrable Securities under the Securities Act pursuant to
Section 3.1 or 3.2, the Company will indemnify and hold harmless the seller of
such securities, its directors,
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officers, and employees, each other person who participates as an underwriter,
broker or dealer in the offering or sale of such securities and each other
person, if any, who controls such seller or any such participating person within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, against any and all losses, claims, damages or liabilities, joint
or several, to which such seller or any such director, officer, employee,
participating person or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein or related thereto, or any
amendment or supplement thereto, or (ii) any omission or alleged omission to
state a fact required to be stated in any such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement or necessary to make the statements therein not misleading; and the
Company will reimburse such seller and each such director, officer, employee,
participating person and controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding, provided that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or expense arises out of or is based upon an untrue statement
or omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such seller or participating person expressly for use in the
preparation thereof and provided, further, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission in the prospectus, if such untrue
statement or alleged untrue statement or omission or alleged omission is
completely corrected in an amendment or supplement to the prospectus and the
seller of Registrable Securities thereafter fails to deliver such prospectus as
so amended or supplemented prior to or concurrently with the sale of Registrable
Securities to the person asserting such loss, claim, damage, liability or
expense after the Company had furnished such seller with a sufficient number of
copies of the same or if the seller received notice from the Company of the
existence of such untrue statement or alleged untrue statement or omission or
alleged omission and the seller continued to dispose of Registrable Securities
prior to the time of the receipt of either (A) an amended or supplemented
prospectus which completely corrected such untrue statement or omission or (B) a
notice from the Company that the use of the existing prospectus may be resumed.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such seller or any such director, officer,
employee, participating person or controlling person and shall survive the
transfer of such securities by such seller.
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(b) Indemnification by the Sellers. In the event of any
registration of any Registrable Securities under the Securities Act pursuant to
Section 3.1 or 3.2, each of the prospective sellers of such securities, will
indemnify and hold harmless the Company, each director of the Company, each
officer of the Company who shall sign such registration statement, each other
person who participates as an underwriter, broker or dealer in the offering or
sale of such securities and each other person, if any, who controls the Company
or any such participating person within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any and all losses,
claims, damages or liabilities, joint or several, to which the Company or any
such director, officer, employee, participating person or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein or related thereto, or
any amendment or supplement thereto, if such statement or omission was made in
reliance upon and in conformity with written information furnished to the
Company by such seller expressly for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement or (ii) any omission or alleged omission to state a fact
with respect to such seller required to be stated in any such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement or necessary to make the statements therein not
misleading; and the seller will reimburse the Company and each such director,
officer, employee, participating person and controlling person for any legal or
any other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, liability, action or proceeding, provided
that the liability of each such seller will be in proportion to and limited to
the net amount received by such seller (after deducting any underwriting
discount and expenses) from the sale of Registrable Securities pursuant to such
registration statement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any such
director, officer, participating person or controlling person and shall survive
the transfer of such securities by such seller.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding paragraphs of this Section 3.7,
such indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party hereunder, give written notice to the latter of the
commencement of such action, provided that the failure of any indemnified party
to give notice as provided therein shall not relieve the indemnifying party of
its obligations under the preceding paragraphs of this Section 3.7. In case any
such action is brought against an indemnified party, the indemnifying party will
be entitled to participate therein and to assume the defense thereof, jointly
with any other indemnifying party similarly notified to the extent that it may
wish, with counsel
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reasonably satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party for any legal or other expenses subsequently incurred by the latter in
connection with the defense thereof, provided that if such indemnified party and
the indemnifying party reasonably determine, based upon advice of their
respective independent counsel, that a conflict of interest may exist between
the indemnified party and the indemnifying party with respect to such action and
that it is advisable for such indemnified party to be represented by separate
counsel, such indemnified party may retain other counsel, reasonably
satisfactory to the indemnifying party, to represent such indemnified party, and
the indemnifying party shall pay all reasonable fees and expenses of such
counsel. No indemnifying party, in the defense of any such claim or litigation,
shall, except with the consent of such indemnified party, which consent shall
not be unreasonably withheld, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation.
(d) Other Indemnification. Indemnification similar to that
specified in the preceding paragraphs of this Section 3.7 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
such Registrable Securities under any Federal or state law or regulation of
governmental authority other than the Securities Act.
(e) Other Remedies. If for any reason the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party, other
than by reason of the exceptions provided therein, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other from
the offering of Registrable Securities (taking into account the portion of the
proceeds of the offering realized by each such party) or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, or provides a
lesser sum to the indemnified party than the amount hereinafter calculated, in
such proportion as is appropriate to reflect not only the relative benefits
received by the indemnifying party on the one hand and the indemnified party on
the other but also the relative fault of the indemnifying party and the
indemnified party as well as any other relevant equitable considerations. 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. No party shall be
liable for contribution under this Section 3.7(e) except to the extent and under
such circumstances as such party would have been liable to indemnify under this
Section 3.7 if such indemnification were enforceable under applicable law.
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(f) Officers and Directors. As used in this Section 3.7, the terms
"officers" and "directors" shall include the partners of the holders of
Registrable Securities which are partnerships and the trustees and beneficiaries
of the holders of Registrable Securities which are trusts.
4. Miscellaneous.
4.1. Rule 144; Legended Securities; etc.
(a) The Company shall file the reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder (or, if the Company is not required to file such
reports, it shall, upon the request of any holder of Registrable Securities,
make publicly available such information as necessary to permit sales pursuant
to Rule 144 or Rule 145), and shall take such further action as any such holder
may reasonably request, all to the extent required from time to time to enable
such holder to sell shares of Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by Rule 144
or Rule 145. Upon the request of any holder of Registrable Securities, the
Company shall deliver to such holder a written statement as to whether it has
complied with such requirements.
(b) The Company shall issue new certificates for Registrable
Securities without a legend restricting further transfer if (i) such securities
have been sold to the public pursuant to an effective registration statement
under the Securities Act (other than Form S-8 if the holder of such Registrable
Securities is an Affiliate of the Company) or Rule 144, or (ii) (x) such
issuance is otherwise permitted under the Securities Act, (y) the holder of such
shares has delivered to the Company an opinion of counsel to such effect and (z)
the holder of such shares expressly requests the issuance of such certificates
in writing.
4.2. Amendments and Waivers. This Agreement may be amended, and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the holder or
holders of at least 66% of the shares then constituting Registrable Securities.
Each holder of any Registrable Securities at the time or thereafter outstanding
shall be bound by any consent authorized by this Section 4.2, whether or not
such Registrable Securities shall have been marked to indicate such consent. No
amendment, modification or discharge of this Agreement, and no waiver hereunder,
shall be valid or binding unless set forth in writing. Any such waiver shall
constitute a waiver only with respect to the specific matter described in such
writing and shall in no way impair the rights of the party or parties granting
such waiver in any other respect or at any other time.
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4.3. Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election and unless notice is otherwise
given to the Company by the record owner, 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 shares of Registrable Securities
held by any holder or holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so elects, the
Company may require assurances reasonably satisfactory to it of such owner's
beneficial ownership of such Registrable Securities.
4.4. Successors, Assigns and Transferees. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the parties hereto other than the Company shall also be for the
benefit of and enforceable by any subsequent holder of any Registrable
Securities, subject to the provisions respecting the minimum numbers or
percentages of shares of Registrable Securities required in order to be entitled
to certain rights, or take certain actions, contained herein.
4.5. Notices. All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given if delivered personally or sent by certified or
express mail, return receipt requested, postage prepaid, or by any recognized
international equivalent of such delivery, to the Company, the Fund or the other
parties hereto, as the case may be, at the following addresses or to such other
address as the Company, the Fund or the other parties hereto, as the case may
be, shall specify by notice to the others:
(i) if to the Company, to it at:
Complete Business Solutions, Inc.
00000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
(ii) if to the other parties hereto, to the address of such party
set forth on the signature page hereof.
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(iii) if to the Shareholders, to:
The Xxxxxxx & Dubilier Private Equity
Fund VI Limited Partnership
Xxxxxxxxxx Xxxxx, Xxxxx 000
0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
All such notices and communications shall be deemed to have been received on the
date of delivery if delivered personally or on the third business day after the
mailing thereof. Copies of any notice or other communication given under this
Agreement shall also be given to:
Xxxxxxx, Dubilier & Rice, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
and
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
4.6. No Inconsistent Agreements. The Company will not hereafter
enter into any agreement with respect to its securities which is inconsistent
with the rights granted to the holders of Registrable Securities by this
Agreement.
4.7. Remedies. Each holder of Registrable Securities, in addition to
being entitled to exercise all rights provided herein or granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
any provision of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
4.8. Stock Splits, etc. Each party hereto agrees that it will vote
to effect a stock split (forward or reverse, as the case may be) with respect to
any Registrable Securities in connection with any registration of such
Registrable Securities hereunder, or otherwise, if the managing underwriter
shall advise the Company in writing (or, in connection with an offering that is
not underwritten, if an investment banker shall advise the Company in writing)
that in their or its opinion such a stock split would facilitate or increase the
likelihood of success of the offering. Each party hereto agrees that any
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number of shares of Common Stock referred to in this Agreement shall be
equitably adjusted to reflect any stock split, stock dividend, stock
combination, recapitalization or similar transaction.
4.9. Term. This Agreement shall be effective as of the date hereof
and shall continue in effect thereafter until the earliest of (a) its
termination by the consent of the parties hereto or their respective successors
in interest, (b) the date on which no Registrable Securities remain outstanding,
(c) the dissolution, liquidation or winding up of the Company and (d) the tenth
anniversary of the date hereof.
4.10. Severability. If any provision of this Agreement is inoperative
or unenforceable for any reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable in any other
case or circumstance, or of rendering any other provision or provisions herein
contained invalid, inoperative, or unenforceable to any extent whatsoever. The
invalidity of any one or more phrases, sentences, clauses, Sections or
subsections of this Agreement shall not affect the remaining portions of this
Agreement.
4.11. Headings. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
4.12. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which
together constitute one and the same instrument.
4.13. Governing Law. This agreement shall be governed in all
respects, including as to validity, interpretation and effects, by the laws of
the State of New York, without giving effect to its principles or rules of
conflict of laws to the extent such principles or rules would require or permit
the application of the laws of another jurisdiction. The parties hereto hereby
irrevocably submit to the jurisdiction of the federal courts of the united
states of America, in each case located in the State, City and County of New
York, solely in respect of the interpretation and enforcement of the provisions
of this agreement, and hereby waive, and agree not to assert, as a defense in
any action, suit or proceeding for the interpretation or enforcement hereof,
that it is not subject thereto or that such action, suit or proceeding may not
be brought or is not maintainable in such courts or that the venue thereof may
not be appropriate or that this agreement may not be enforced in or by such
courts, and the parties hereto irrevocably agree that all claims with respect to
such action or proceeding shall be heard and determined in such a New York
federal court. The parties hereto hereby consent to and grant any such court
jurisdiction over the person of such parties and over the subject matter of any
such dispute and agree that mailing of process or other papers in connection
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with any such action or proceeding in the manner provided in Section 4.5, or in
such other manner as may be permitted by law, shall be valid and sufficient
service thereof.
4.14. Waiver of Jury Trial. (A) Each of the parties hereto
irrevocably and unconditionally (i) agrees that any legal suit, action or
proceeding brought by any party hereto arising out of or based upon this
agreement or the transactions contemplated hereby may be brought in the courts
of New York, in the County of New York, or the United States District Court for
the Southern District of New York (each, a "New York Court"), (ii) waives, to
the fullest extent it may effectively do so, any objection which it may now or
hereafter have to the laying of venue of any such proceeding brought in any New
York Court, and any claim that any such action or proceeding brought in any New
York Court has been brought in an inconvenient forum, and (iii) submits to the
non-exclusive jurisdiction of New York Courts in any suit, action or proceeding.
Each of the parties agrees that a judgment in any suit, action or proceeding
brought in a New York Court shall be conclusive and binding upon it and may be
enforced in any other courts to whose jurisdiction it is or may be subject, by
suit upon such judgment.
(B) Each of the parties agrees and acknowledges that any
controversy that may arise under this Agreement is likely to involve complicated
and difficult issues, and therefore each such party hereby irrevocably and
unconditionally waives any right such party may have to a trial by jury in
respect of any litigation directly or indirectly arising out of or relating to
this Agreement, or the breach, termination or validity of this agreement.
4.15. No Third Party Beneficiaries. Except as provided in Sections
3.7 and 4.4, nothing in this Agreement shall confer any rights upon any person
or entity other than the parties hereto, each such party's respective successors
and permitted assigns.
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IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
COMPLETE BUSINESS SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
CD&R-COOKIE ACQUISITION L.L.C.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
CD&R-COOKIE ACQUISITION VI-A L.L.C.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
[Address]
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