[FORM OF
REGISTRATION RIGHTS AGREEMENT]
REGISTRATION RIGHTS AGREEMENT (hereinafter called this
"Agreement"), dated as of September __, 1996, between Antigua Acquisition
Corporation, a Delaware corporation ("Merger Sub"), and Hercules Limited, a
Cayman Islands company (the "Stockholder").
RECITALS
WHEREAS, Merger Sub has entered into an Agreement and Plan of
Merger, dated as of June 5, 1996, as amended (the "Merger Agreement"), among
AT&T Capital Corporation, a Delaware corporation (the "Company"), AT&T Corp., a
New York corporation, the Stockholder and Merger Sub, which is a wholly owned
subsidiary of the Stockholder, providing for the merger (the "Merger") of Merger
Sub with and into the Company, after which the Company will continue its
corporate existence as the surviving corporation (sometimes hereinafter referred
to as the "Surviving Corporation");
WHEREAS, Merger Sub was recently incorporated for the
purpose of merging with and into the Company;
WHEREAS, the Stockholder and Merger Sub have entered into a stock
subscription agreement, pursuant to which the Stockholder has agreed to purchase
from Merger Sub, and Merger Sub has agreed to sell to the Stockholder, shares of
Common Stock, par value $.01 per share, of Merger Sub, each of which will be
converted at the effective time of the Merger (the "Effective Time") pursuant to
the Merger Agreement in one share of Common Stock, par value $.01 per share, of
the Surviving Corporation (the "Common Stock"); and
WHEREAS, the parties hereto desire to enter into this Agreement,
which sets forth certain registration rights applicable to the Registrable
Securities (as hereinafter defined) held from time to time by the Stockholders.
NOW, THEREFORE, to implement the foregoing and in consideration
of the premises and of the mutual agreements contained herein, the parties
hereto agree as follows:
1. Definitions.
Whenever the following terms are used in this Agreement, they
shall have the meaning specified below:
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
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"Holder" shall mean any Stockholder and any holder of Registrable
Securities who agrees in writing to be bound by the provisions of this
Agreement.
"Person" shall mean any individual, partnership, firm,
corporation, limited liability company, association, trust,
unincorporated organization or other entity.
"Registrable Securities" shall mean any Common Stock issued or
issuable to a Holder and any Common Stock which may be issued or
distributed in respect of such Common Stock by way of stock dividend or
stock split or other distribution, recapitalization or reclassification.
As to any particular Registrable Securities, once issued such securities
shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been
disposed of in accordance with such registration statement, (ii) they
shall have been distributed to the public pursuant to Rule 144 or 144A
(or any successor provisions) under the Securities Act, (iii) they shall
have been otherwise transferred, new certificates for them not bearing a
legend restricting further transfer shall have been delivered by the
Company and subsequent disposition of them shall not require
registration or qualification of them under the Securities Act or any
state securities or blue sky law then in force, or (iv) they shall have
ceased to be outstanding.
"Registration Expenses" shall mean any and all expenses incident
to performance of or compliance with this Agreement, including, without
limitation, (i) all SEC and stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses of complying with securities or blue sky laws (including fees
and disbursements of counsel for the underwriters in connection with
blue sky qualifications of the Registrable Securities), (iii) all
printing, messenger and delivery expenses, (iv) all fees and expenses
incurred in connection with the listing of the Registrable Securities on
any securities exchange pursuant to clause (viii) of Section 4, (v) the
fees and disbursements of counsel for the Company and of its independent
public accountants, including the expenses of any special audits and/or
"cold comfort" letters required by or incident to such performance and
compliance, (vi) the reasonable fees and disbursements of counsel to the
Stockholder, and (vii) any fees and disbursements of underwriters
customarily paid by the issuers or sellers of securities, including
liability insurance if the Company so desires or if the underwriters so
require, and the reasonable fees and expenses of any special experts
retained in connection with the requested registration, but excluding
underwriting discounts and commissions and transfer taxes, if any.
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"Securities Act" shall mean the Securities Act of 1933,
as amended.
"SEC" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act or the
Exchange Act.
"Seller" shall mean a Holder whose Registrable Securities are
included in a registration statement pursuant to any provision of this
Agreement.
2. Incidental Registrations.
(a) Right to Include Registrable Securities. If the Company at
any time after the Effective Time proposes to register its Common Stock under
the Securities Act (other than a registration on Form S-4 or S-8, or any
successor or other forms promulgated for similar purposes, or a registration
statement in connection with an offering to employees of the Surviving
Corporation and its subsidiaries or a registration of shares of Common Stock
pursuant to the terms of any Supplemental Agreement (as hereinafter defined)
other than any such registration resulting from any right of a party to such
Supplemental Agreement to have the Company effect registration under Section
7(a) of this Agreement), whether or not for sale for its own account, pursuant
to a registration statement on which it is permissible to register Registrable
Securities for sale to the public under the Securities Act, it will each such
time give prompt written notice to the Stockholder of its intention to do so and
of the Stockholder's rights under this Section 2. Upon the written request of
the Stockholder made within 15 days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to be disposed of by
the Stockholder), the Company will use its best efforts to effect the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by the Stockholder; provided, that (i)
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 Company shall determine for any reason
not to proceed with the proposed registration of the securities to be sold by
it, the Company may, at its election, give written notice of such determination
to the Stockholder and, thereupon, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration (but
not from its obligation to pay the Registration Expenses in connection
therewith), and (ii) if such registration involves an underwritten offering, the
Stockholder must sell its Registrable Securities to the underwriters selected by
the Company on the same terms and conditions as apply to the Company, with such
differences, including any with respect to indemnification and liability
insurance, as may be customary or appropriate in combined primary and secondary
offerings. If a
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registration requested pursuant to this Section 2(a) involves an underwritten
public offering, the Stockholder may elect, in writing prior to the effective
date of the registration statement filed in connection with such registration,
not to register such securities in connection with such registration.
(b) Expenses. The Company will pay all Registration Expenses in
connection with each registration of Registrable Securities requested pursuant
to this Section 2.
(c) Priority in Incidental Registrations. If a registration
pursuant to this Section 2 involves an underwritten offering and the managing
underwriter in good faith advises the Company in writing that, in its opinion,
the total amount of securities requested to be included in such registration
(including the Registrable Securities which the Stockholder has requested to be
included in such registration pursuant to Section 2(a) hereof) exceeds the
amount which can be sold in such offering without having an adverse effect on
such offering as contemplated by the Company (including the price at which the
Company proposes to sell such securities), then the Company will include in such
registration (i) first, 100% of the securities the Company proposes to sell and
(ii) second, to the extent of the number of securities requested to be included
in such registration that, in the opinion of such managing underwriter, can be
sold without having the adverse effect referred to above, the amount of
Registrable Securities that the Stockholder has requested to be included in such
registration (and, in the case of more than one Holder having the rights of the
Stockholder under this Section 2 and requesting pursuant to Section 2(a) hereof
to have Registrable Securities included in such registration, such amount to be
allocated pro rata among all requesting Holders on the basis of the relative
number of shares of Registrable Securities then held by each such Holder,
provided that any Registrable Securities thereby allocated to any such Holder
that exceed such Holder's request will be reallocated among the remaining
requesting Holders in like manner).
3. Registration on Request.
(a) Request by Stockholder. Upon the written request of the
Stockholder requesting that the Company effect the registration under the
Securities Act of all or part of the Stockholder's Registrable Securities and
specifying the amount and intended method of disposition thereof, the Company
will (i) promptly upon receipt thereof, give written notice of such request to
all other Holders and (ii) as expeditiously as possible, use its best efforts to
effect the registration under the Securities Act of the Registrable Securities
which the Company has been so requested to register by the Stockholder and,
subject to the limitations set forth in the Supplemental Agreements, any other
Holders so as to permit the disposition (in accordance with the intended method
thereof as aforesaid) of the Registrable Securities so to be registered.
Notwithstanding the
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foregoing, upon delivery to the requesting Stockholder of written notice and a
brief statement of the reason for the Company's action, the Company shall be
entitled to postpone filing of the registration statement otherwise properly
requested to be filed pursuant to this Section 3 for a period not to exceed 60
days if, in the reasonable judgment of the Board of Directors of the Company,
such registration would materially interfere with or materially adversely affect
any then existing negotiations for financing or any other arrangement, agreement
or plan then pending or being negotiated in good faith, provided that the
duration of such postponement does not exceed the number of days required to
avoid such material interference or material adverse effect.
(b) Registration Statement Form. Registration under this Section
3 shall be on such appropriate registration form prescribed by the SEC under the
Securities Act (i) as shall be selected by the Company and as shall be
reasonably acceptable to the Stockholder and (ii) as shall permit the
disposition of the Registrable Securities pursuant to the intended method of
disposition thereof specified in accordance with Section 3(a) hereof. The
Company agrees to include in such registration statement filed pursuant to this
Section 3 all information that the Stockholder, upon advice of counsel, shall
reasonably request. The Company may, if permitted by law, effect any
registration requested under this Section 3 by the filing of a registration
statement on Form S-3 (or any successor or similar short form registration
statement). If the managing underwriter shall advise the Company in writing
that, in its opinion, the use of a form of registration statement other than
Form S-3 is of material importance to the success of such proposed offering,
then such registration shall be effected on such other form.
(c) Expenses. The Company will pay all Registration Expenses in
connection with the registrations of Registrable Securities pursuant to this
Section 3 upon the written request of the Stockholder.
(d) Effective Registration Statement. A registration requested
pursuant to this Section 3 will not be deemed to have been effected unless it
has become effective; provided, that if, within 180 days after it has become
effective, the offering of Registrable Securities pursuant to such registration
is interfered with by any stop order, injunction or other order or requirement
of the SEC or other governmental agency or court, such registration will be
deemed not to have been effected.
(e) Selection of Underwriters. If a requested registration
pursuant to this Section 3 involves an underwritten offering, the Stockholder
shall have the right to select the investment banker or bankers and managers to
administer the offering; provided, however, that such investment banker or
bankers and managers shall be reasonably satisfactory to the Company.
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(f) Priority in Requested Registrations. If a requested
registration pursuant to this Section 3 involves an underwritten offering and
the managing underwriter in good faith advises the Company in writing that, in
its opinion, the number of securities requested to be included in such
registration (including any Registrable Securities which any other Holder has
requested to be included in such registration pursuant to Section 3(a) hereof)
exceeds the amount which can be sold in such offering without having an adverse
effect on such offering as contemplated by the Stockholder (including the price
at which the Stockholder proposes to sell such securities), then the Company
will include in such registration (i) first, 100% of the securities the
requesting Stockholder proposes to sell and (ii) second, to the extent of the
number of securities requested to be included in such registration that, in the
opinion of such managing underwriter, can be sold without having the adverse
effect referred to above, the amount of Registrable Securities that the other
Holders have requested to be included in such registration, such amount to be
allocated pro rata among all requesting Holders on the basis of the relative
number of shares of Registrable Securities then held by each such Holder,
provided that any Registrable Securities thereby allocated to any such Holder
that exceed such Holder's request will be reallocated among the remaining
requesting Holders in like manner). In the event that the number of Registrable
Securities requested to be included in such registration (consisting of the sum
of the number of Registrable Securities that the Stockholder has requested to be
included in such registration pursuant to Section 2(a) hereof and the number of
Registrable Securities which any other Holder has requested to be included in
such registration pursuant to Section 2(a)) is less than the amount of
Registrable Securities that, in the opinion of the managing underwriter, can be
sold without having the adverse effect referred to above, the Company may
include in such registration the securities the Company proposes to sell up to
the number of securities that, in the opinion of such managing underwriter, can
be so sold.
4. Registration Procedures. If and whenever the
Company is required to use its best efforts to effect or cause
the registration of any Registrable Securities under the
Securities Act as provided in this Agreement, the Company will,
as expeditiously as possible:
(i) prepare and, in any event within 120 days after the end
of the period within which a request for registration may be given to
the Company, file with the SEC a registration statement with respect to
such Registrable Securities and use its best efforts to cause such
registration statement to become effective; provided, however, that the
Company may discontinue any registration of its securities which is
being effected pursuant to Section 2 hereof at any time prior to the
effective date of the registration statement relating thereto;
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(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period not in excess of 180 days (or such
period as may be permitted under the Securities Act) and to comply with
the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement during such period
in accordance with the intended methods of disposition by the Seller or
Sellers thereof set forth in such registration statement; provided, that
before filing a registration statement or prospectus, or any amendments
or supplements thereto, the Company will furnish to counsel for the
Stockholder copies of all documents proposed to be filed, which
documents will be subject to the review of such counsel and no such
registration statement or prospectus, or any amendment or supplement
thereto, shall be filed to which such counsel shall have reasonably
objected on the grounds that such registration statement or prospectus,
or amendment or supplement (with respect to disclosures or omissions in
the case of a registration under Section 3 hereof relating to the
Holders of Registrable Securities), does not comply in all material
respects with the requirements of the Securities Act or the rules or
regulations thereunder and shall have specified the basis for such
objection in reasonable detail;
(iii) furnish to each Seller of such Registrable Securities
such number of copies of such registration statement and of each
amendment and supplement thereto (in each case including all exhibits),
such number of copies of the prospectus included in such registration
statement (including each preliminary prospectus and 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 Registrable Securities by such
Seller;
(iv) use its best efforts to register or qualify such
Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as each Seller
shall reasonably request, and do any and all other acts and things which
may be reasonably necessary or advisable to enable such Seller to
consummate the disposition in such jurisdictions of the Registrable
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 where, but for the requirements
of this clause (iv), it would not be obligated to be so qualified, to
subject itself to taxation in any such jurisdiction, or to consent to
general service of process in any such jurisdiction;
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(v) use its best efforts to cause such Registrable
Securities covered by such registration statement to be registered with
or approved by such other governmental agencies or authorities as may be
necessary to enable the Seller or Sellers thereof to consummate the
disposition of such Registrable Securities;
(vi) notify each Seller of any such Registrable Securities
covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in clause (ii) of this Section
4, of the Company's becoming aware that 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 not
misleading in the light of the circumstances then existing, and at the
request of any such Seller, prepare and furnish to such Seller a
reasonable number of copies of an amended or supplemental prospectus as
may be necessary so that, as thereafter delivered to the purchasers of
such Registrable Securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing;
(vii) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable (but not more than
18 months) after the effective date of the registration statement, an
earnings statement which shall satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations promulgated
thereunder;
(viii) use its best efforts to list such Registrable Securities
on any securities exchange on which the Common Stock is then listed, if
such Registrable Securities are not already so listed and if such
listing is then permitted under the rules of such exchange, and to
provide a transfer agent and registrar for such Registrable Securities
covered by such registration statement not later than the effective date
of such registration statement;
(ix) enter into such customary agreements (including an
underwriting agreement in customary form) and take such other actions as
the Stockholder, the Seller or Sellers of a majority of the Registrable
Securities being sold by other Holders or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities;
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(x) obtain a "cold comfort" letter or letters from the
Company's independent public accountants in customary form and covering
matters of the type customarily covered by "cold comfort" letters as the
Stockholder or the Seller or Sellers of a majority of the Registrable
Securities being sold by other Holders (provided that such Registrable
Securities constitute at least 25% of the securities covered by such
registration statement) shall reasonably request; and
(xi) make available for inspection by any Seller of such
Registrable Securities covered by such registration statement, by any
underwriter participating in any disposition to be effected pursuant to
such registration statement and by any attorney, accountant or other
agent retained by any such Seller or any such underwriter, all pertinent
financial and other records, pertinent corporate documents and
properties of the Company, and cause all of the Company's officers,
directors and employees to supply all information reasonably requested
by any such Seller, underwriter, attorney, accountant or agent in
connection with such registration statement.
The Company may require each Seller to furnish the Company with
such information regarding such Seller and pertinent to the disclosure
requirements relating to the registration and the distribution of such
securities as the Company may from time to time reasonably request in writing.
Each Seller agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in clause (vi) of
this Section 4, such Seller will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Seller's receipt of the copies of the
supplemented or amended prospectus contemplated by clause (vi) of this Section
4, and, if so directed by the Company, such Seller will deliver to the Company
(at the Company's expense) all copies, other than permanent file copies then in
such Seller's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the period mentioned in clause (ii) of this Section 4
shall be extended by the number of days during the period from and including the
date of the giving of such notice pursuant to clause (vi) of this Section 4 and
including the date when each Seller shall have received the copies of the
supplemented or amended prospectus contemplated by clause (vi) of this Section
4.
5. Indemnification.
(a) Indemnification by the Company. In the event of
any registration of any securities of the Company under the
Securities Act pursuant to Section 2 or 3, the Company will, and
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it hereby does, indemnify and hold harmless, to the extent permitted by law, the
Seller of any Registrable Securities covered by such registration statement,
each affiliate of such Seller and their respective directors and officers or
general and limited partners (and the directors, officers, affiliates and
controlling Persons thereof), each other Person who participates as an
underwriter in the offering or sale of such securities and each other Person, if
any, who controls such Seller or any such underwriter within the meaning of the
Securities Act (collectively, the "Indemnified Parties"), against any and all
losses, claims, damages or liabilities, joint or several, and expenses to which
such Seller, any such director or officer or general or limited partner or
affiliate or any such underwriter or controlling Person may become subject under
the Securities Act, common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof, whether or
not such Indemnified Party is a party thereto) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities were
registered under the Securities Act, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement thereto, or (ii)
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing, and the Company will reimburse such
Indemnified Party for any legal or any other expenses reasonably incurred by it
in connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided, that the Company shall not be liable to any
Indemnified Party in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement or amendment or
supplement thereto or in any such preliminary, final or summary prospectus in
reliance upon and in conformity with written information with respect to such
Seller furnished to the Company by such Seller for use in the preparation
thereof; and provided, further, that the Company will not be liable to any
Person who participates as an underwriter in the offering or sale of Registrable
Securities or any other Person, if any, who controls such underwriter within the
meaning of the Securities Act, under the indemnity agreement in this Section
5(a) with respect to any preliminary prospectus or the final prospectus or the
final prospectus as amended or supplemented, as the case may be, to the extent
that any such loss, claim, damage or liability of such underwriter or
controlling Person results from the fact that such underwriter sold Registrable
Securities to a Person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the final prospectus (including any
documents incorporated by reference therein) or of the final prospectus as then
amended or supplemented (including any documents incorporated by reference
therein), whichever is
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most recent, if the Company has previously furnished copies thereof to such
underwriter. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such Seller or any Indemnified Party
and shall survive the transfer of such securities by such Seller.
(b) Indemnification by the Seller. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed in accordance with Section 4 herein, that the Company shall have received
an undertaking reasonably satisfactory to it from the prospective Seller of such
Registrable Securities or any underwriter to indemnify and hold harmless (in the
same manner and to the same extent as set forth in Section 5(a) hereof) the
Company and all other prospective Sellers or any underwriter, as the case may
be, with respect to any statement or alleged statement in or omission or alleged
omission from such registration statement, any preliminary, final or summary
prospectus contained therein, or any amendment or supplement, if such statement
or alleged statement or omission or alleged omission was made in reliance upon
and in conformity with written information with respect to such Seller or
underwriter furnished to the Company by such Seller or underwriter for use in
the preparation of such registration statement, preliminary, final or summary
prospectus or amendment or supplement, or a document incorporated by reference
into any of the foregoing. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any of
the prospective Sellers, or any of their respective affiliates, directors,
officers or controlling Persons and shall survive the transfer of such
securities by such Seller.
(c) Notices of Claims, Etc. Promptly after receipt by an
Indemnified Party hereunder of written notice of the commencement of any action
or proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 5, such Indemnified Party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to the
latter of the commencement of such action; provided, that the failure of the
Indemnified Party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Section 5, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an Indemnified Party, unless in such Indemnified Party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such Indemnified Party, and after notice from
the indemnifying party to such Indemnified Party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
Indemnified Party for any legal or other expenses
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subsequently incurred by the latter in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party will 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, without the prior written consent of the Indemnified Party.
(d) Other Indemnification. Indemnification similar to that
specified in the preceding subdivisions of this Section 5 (with appropriate
modifications) shall be given by the Company and each Seller with respect to any
required registration or other qualification of securities under any federal or
state law or regulation or governmental authority other than the Securities Act.
(e) Non-Exclusivity. The obligations of the parties under this
Section 5 shall be in addition to any liability which any party may otherwise
have to any other party.
6. Rule 144. If the Company shall have filed a registration
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act, the
Company covenants that it will 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
will, upon the request of the Stockholder, make publicly available such
information), and it will take such further action as the Stockholder may
reasonably request, all to the extent required from time to time to enable the
Stockholder to sell shares of Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (i) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or
(ii) any similar rule or regulation hereafter adopted by the SEC. Upon the
request of the Stockholder, the Company will deliver to the Stockholder a
written statement as to whether it has complied with such requirements.
Notwithstanding anything contained in this Section 6, the Company may deregister
under Section 12 of the Exchange Act if it then is permitted to do so pursuant
to the Exchange Act and the rules and regulations thereunder.
7. Miscellaneous.
(a) Other Investors. The Company may enter into agreements with
other purchasers of Common Stock who are then employees of the Company or any of
its subsidiaries making them parties hereto (and thereby giving them all of the
rights, preferences and privileges of an original party (other than the Company)
hereto) with respect to additional shares of Common Stock (collectively, the
"Supplemental Agreements"); provided that, pursuant to any such Supplemental
Agreement, such purchaser
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expressly agrees to be bound by all of the terms, conditions and obligations of
this Agreement as if such purchaser were an original party (other than the
Company) hereto; provided further that the rights of any such purchaser to have
the Company effect registration of his or her Registrable Securities hereunder
shall be limited to the extent set forth in such purchaser's Supplement
Agreement, and further provided that such purchaser shall not obtain any right
to request registration under Section 2 hereof or to initiate registration under
Section 3 hereof. All shares of Common Stock issued or issuable pursuant to such
Supplemental Agreements by such purchasers shall be deemed to be Registrable
Securities.
(b) Holdback Agreement. If any such registration shall be in
connection with an underwritten public offering, the Holders agree not to effect
any public sale or distribution, including any sale pursuant to Rule 144 under
the Securities Act, of any equity securities of the Company, or of any security
convertible into or exchangeable or exercisable for any equity security of the
Company (in each case, other than as part of such underwritten public offering),
within 7 days before or 180 days (or such lesser period as the managing
underwriters may permit) after the effective date of such registration if, and
to the extent, the Company or any managing underwriter of any such offering
determines such action is necessary or desirable in order to effect such
offering, and the Company hereby also so agrees and agrees to cause each other
holder of any equity security, or of any security convertible into or
exchangeable or exercisable for any equity security, of the Company purchased
from the Company (at any time other than in a public offering) to so agree.
(c) 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
Stockholder. Each Holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by any consent authorized by this Section 7(c),
whether or not such Registrable Securities shall have been marked to indicate
such consent.
(d) 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 contained herein.
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(e) Notices. All notices and other communications provided for
hereunder shall be in writing and shall be sent by first class mail, telex,
facsimile or hand delivery:
(i) if to Merger Sub or the Company, to:
AT&T Capital Corporation
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Vice President - Human Resources
With a copy to:
AT&T Capital Corporation
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
(ii) if to the Stockholder, to:
Hercules Limited
x/x Xxxxxx & Xxxxxx
X.X. Xxx 000
Xxxxxx House
South Church Street
Grand Cayman
Cayman Islands, British West Indies
with a copy to:
AT&T Capital Corporation
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
(iii) if to any other Holder, to the address of such other
holder as shown in the books and records of the Company,
or to such other address as any of the above shall have
designated in writing to all of the other above.
All such notices and communications shall be deemed to have been given or made
(1) when delivered by hand, (2) five business days after being deposited in the
mail, postage prepaid, (3) when telexed, answer-back received or (4) when sent
by facsimile, receipt acknowledged.
(f) Descriptive Headings. The headings in this
Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning of terms contained herein.
(g) Severability. In the event that any one or more
of the provisions, paragraphs, words, clauses, phrases or
sentences contained herein, or the application thereof in any
15
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision,
paragraph, word, clause, phrase or sentence in every other respect and of the
remaining provisions, paragraphs, words, clauses, phrases or sentences hereof
shall not be in any way impaired, it being intended that all rights, powers and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
(h) Counterparts. This Agreement may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be deemed an original, but all such counterparts shall together constitute
one and the same instrument, and it shall not be necessary in making proof of
this Agreement to produce or account for more than one such counterpart.
(i) Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
applicable to contracts made and to be performed therein. The parties to this
Agreement hereby agree to submit to the jurisdiction of the courts of the State
of New Jersey in any action or proceeding arising out of or relating to this
Agreement.
(j) Specific Performance. The parties hereto acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, it is agreed that they
shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any court of competent jurisdiction in the United States or
any state thereof, in addition to any other remedy to which they may be entitled
at law or equity.
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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.
ANTIGUA ACQUISITION CORPORATION
By:
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Name:
Title:
HERCULES LIMITED
By:
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Name:
Title:
