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REGISTRATION RIGHTS AGREEMENT EXHIBIT 2
This Registration Rights Agreement (this "Agreement"), dated as of
December 11, 1996, is by and among Xxxxx & Xxxxx Company, a Delaware
corporation (the "Company"), Warburg, Xxxxxx Investors, L.P., a Delaware
limited partnership ("Warburg"), Xxx X. Xxxxxxx ("Xxxxxxx"), C. Xxxxxxx
Xxxxxxx, Xxxx Xxxxxxx and Xxxxxxx X. Xxxxxxx (collectively, the "Kojaian
Investors").
WHEREAS, Warburg, Xxxxxxx and the Kojaian Investors have entered into
certain agreements with the Company pursuant to which they purchased shares of
common stock of the Company (the "Common Stock") and/or securities convertible
into or exercisable for shares of Common Stock.
WHEREAS, the parties desire to provide for certain rights to register such
shares of Common Stock and such shares of Common Stock issued or issuable upon
conversion or exercise of any such securities under the Securities Act of 1933,
as amended, in the manner and upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the terms and
conditions herein contained, the parties hereto mutually agree as follows:
1. Definitions.
1.1 Defined Terms. In addition to the capitalized terms defined
elsewhere in this Agreement, as used in this Agreement the following terms
shall have the following meanings (with the singular to include the plural,
except where the context otherwise requires):
(a) "Affiliate" of a Person shall mean any Person directly or
indirectly controlling, controlled by, or under common control with such Person.
(b) "Board of Directors" shall mean the Board of Directors of the
Company.
(c) "Commission" shall mean the Securities and Exchange Commission.
(d) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(e) "Xxxxxxx Securities" shall mean the Xxxxxxx Shares, the Xxxxxxx
Warrants and any and all issued shares of Xxxxxxx Registrable Securities.
(f) "Xxxxxxx Shares" shall mean all shares of Common Stock held by
Xxxxxxx or the Xxx X. Xxxxxxx Trust dated June 15, 1988 (the "Xxxxxxx Trust")
on the date hereof.
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(g) "Xxxxxxx Warrants" shall mean all warrants held by Xxxxxxx or
the Xxxxxxx Trust on the date hereof to purchase shares of Common Stock.
(h) "Kojaian Shares" shall mean the aggregate of 2,500,000 shares
of Common Stock issued to the Kojaian Investors pursuant to the Stock Purchase
Agreement dated as of December 11, 1996 between the Kojaian Investors and the
Company.
(i) "Kojaian Securities" shall mean the Kojaian Shares and any and
all issued shares of Kojaian Registrable Securities.
(j) "Person" shall mean any individual, corporation, partnership,
association, trust or other entity or organization, including a government or
political subdivision or agency or instrumentality thereof.
(k) "Prospectus" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
(l) "Registration" shall mean a Demand Registration or a Piggyback
Registration.
(m) "Registration Statement" shall mean any registration statement
of the Company which covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective
amendments, all exhibits and all material incorporated by reference in such
Registration Statement.
(n) "Securities" shall mean the Xxxxxxx Securities, the Kojaian
Securities and the Warburg Securities.
(o) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(p) "Subsidiary" shall mean any corporation, partnership, joint
venture or other entity of which the Company owns, directly or indirectly, a
majority of the capital stock or a majority of the partnership or other equity
interests, or is a general partner.
(q) "underwritten registration" or "underwritten offering" shall
mean a sale of securities of the Company to an underwriter for reoffering to the
public.
(r) "Warburg Securities" shall mean the Warburg Shares, the Warburg
Warrants and any and all issued shares of Warburg Registrable Securities.
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(s) "Warburg Shares" shall mean all shares of Common Stock held by
Warburg on the date hereof.
(t) "Warburg Warrants" shall mean all warrants held by Warburg on
the date hereof to purchase shares of Common Stock.
2. Registration Rights.
2.1 Demand Registrations.
(a) At any time after the date hereof the holder or holders of at
least 30% of the aggregate amount of Warburg Registrable Securities (based on
the amount of Warburg Registrable Securities beneficially owned by Warburg as of
the date hereof, as adjusted pursuant to the terms hereof) may make three
written requests to the Company for registration under and in accordance with
the provisions of the Securities Act of all or part of the Warburg Registrable
Securities; provided, however, that Warburg may make any of such three requests
for registration regardless of the percentage of Warburg Registrable Securities
it holds. At any time after the date hereof, the holder or holders of at least
30% of the aggregate amount of Kojaian Registrable Securities may make three
written requests to the Company for registration under and in accordance with
the provisions of the Securities Act of all or part of the Kojaian Registrable
Securities.
For purposes of this Section 2, a Person is deemed to be a holder of
Registrable Securities whenever such Person owns Registrable Securities or has
the right to acquire such Registrable Securities, whether or not such
acquisition has actually been effected and disregarding any legal restrictions
upon the exercise of such right.
"Warburg Registrable Securities" shall include the Warburg Shares
and all shares of Common Stock issued or issuable upon exercise of any of the
Warburg Warrants, "Xxxxxxx Registrable Securities" shall include the Xxxxxxx
Shares and all shares of Common Stock issued or issuable upon exercise of any
of the Xxxxxxx Warrants and "Kojaian Registrable Securities" shall include the
Kojaian Shares (Warburg Registrable Securities, Xxxxxxx Registrable Securities
and Kojaian Registrable Securities are sometimes collectively referred to
herein as "Registrable Securities"). Registrable Securities shall include all
shares of Common Stock, or Common Stock issued or issuable upon conversion or
exercise of any securities of the Company, which may be issued or distributed
with respect to, or in exchange for, the Warburg Warrants, the Xxxxxxx Warrants
or any Common Stock referred to in the preceding sentence pursuant to a stock
dividend, stock split or other distribution, merger, consolidation,
recapitalization or reclassification or otherwise, and any securities of the
Company which may be issued or distributed with respect to, or in exchange for,
any such Common Stock or such other securities pursuant to a stock dividend,
stock split or other distribution, merger, consolidation, recapitalization or
reclassification or otherwise; provided, however, that any such Registrable
Securities shall cease to be Registrable Securities when (i) a Registration
Statement with respect to the sale of such Registrable Securities has been
declared effective under the Securities Act and such Registrable Securities
have been disposed of in accordance with the plan of distribution set
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forth in such Registration Statement, (ii) such Registrable Securities are
distributed pursuant to Rule 144 or Rule 144A (or any similar provision then in
force) under the Securities Act or (iii) such Registrable Securities shall have
been otherwise transferred, new certificates for them not bearing a legend
restricting further transfer under the Securities Act shall have been delivered
by the Company and they may be resold without subsequent registration under the
Securities Act; provided, further, however, that any securities that have
ceased to be Registrable Securities cannot thereafter become Registrable
Securities, and any security that is issued or distributed in respect to
securities that have ceased to be Registrable Securities are not Registrable
Securities.
Any registration requested pursuant to Section 2.1(a) shall
hereinafter be referred to as a "Demand Registration." Each request for a
Demand Registration shall specify the kind and aggregate amount of Registrable
Securities to be registered and the intended methods of disposition thereof,
which may be stated in the alternative if a shelf Registration Statement is
requested pursuant to Rule 415 under the Securities Act. The Company shall be
deemed to have effected a Demand Registration if (i) the Registration Statement
relating to such Demand Registration is declared effective by the Commission
and remains effective for at least 30 days; provided, however, that no Demand
Registration shall be deemed to have been effected if (x) such registration,
after it has become effective, is interfered with by any stop order, injunction
or other order or requirement of the Commission or other governmental agency or
court or (y) the conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such registration are
not satisfied or (ii) at any time after the requisite holders request a Demand
Registration and prior to the effectiveness of the Registration Statement, the
preparation of such Registration Statement is discontinued or such Registration
Statement is withdrawn or abandoned at the request of the holders of a majority
of the Registrable Securities sought to be registered in such Registration
Statement pursuant to Section 2.1(a), unless either (x) the holders of such
Registrable Securities have elected to pay and have paid to the Company in full
the Registration Expenses (as hereinafter defined) in connection with such
Registration Statement, or (y) such discontinuation, withdrawal or abandonment
is requested by such holders because of the occurrence of a significant
negative change in market conditions or the Company's business condition or
prospects since the date of the initial request for a Demand Registration.
(b) Demand Notices. Promptly upon receipt of any request for a
Demand Registration pursuant to Section 2.1(a) (but in no event more than five
business days thereafter), the Company will serve written notice (a "Demand
Notice") of any such Registration request to all other beneficial holders of
Registrable Securities who then have the right to request a Demand
Registration, and the Company will include in such Registration all such
Registrable Securities of any holder with respect to which the Company has
received written requests for inclusion therein, in which the holder has
specified that such inclusion is to be deemed a Demand Registration pursuant to
Section 2.1(a) hereof, within 30 days after the Demand Notice has been given to
the applicable holders of Registrable Securities. All requests made pursuant
to this Section 2.1(b) shall specify the kind and aggregate amount of
Registrable Securities to be registered. If such initial request for a Demand
Registration has specified that the offering pursuant thereto
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shall be underwritten, then each holder making a request pursuant to this
Section 2.1(b) must participate in such underwritten offering and shall not be
permitted to make any other offering in connection with such Demand
Registration. If such initial request for a Demand Registration has each
holder making a request pursuant to this Section 2.1(b) must participate in
such offering on such basis and shall not be permitted to make an underwritten
offering in connection with such Demand Registration.
(c) Priority of Demand Registrations. If the managing
underwriter or agent of a Demand Registration (or, in the case of a Demand
Registration not being underwritten, holders of a majority of the Registrable
Securities sought to be registered therein pursuant to Section 2.1), advises
the Company in writing that in its or their opinion the number of securities
requested to be included in such Demand Registration exceeds the number which
can be sold in such offering without a significant adverse effect on the price,
timing or distribution of the securities offered, the Company will include in
such Registration only the number of securities that, in the opinion of such
underwriter or agent (or holders, as the case may be), can be sold without a
significant adverse effect on the price, timing or distribution of the
securities offered, selected pro rata among the holders that have requested to
be included in such Demand Registration pursuant to Sections 2.1(a) or 2.1(g)
or pursuant to other demand registration rights, based on the number of shares
of Registrable Securities or other securities requested to be registered by
each such holder.
The Company and other holders of securities of the Company may
include other securities in such Registration if, but only if, such underwriter
or agent (or holders of Registrable Securities, as the case may be) concludes
that such inclusion will not have a significant adverse effect on the price,
timing or distribution of all the securities requested to be included in such
Registration.
(d) The Company's Right to Defer Registration. If the Company is
requested to effect a Demand Registration and the Company furnishes to the
holders of Registrable Securities requesting such Registration a copy of a
resolution of the Board of Directors certified by the Secretary of the Company
stating that in the good faith judgment of the Board of Directors it would be
adverse to the Company and its securityholders for such Registration Statement
to be filed on or before the date such filing would otherwise be required
hereunder because such registration would interfere with any financing,
acquisition, corporate reorganization or other material transaction involving
the Company or any of its Subsidiaries or would require premature disclosure
thereof, or would require disclosure of material information which the Company
would be justified in not disclosing in the absence of such Registration, the
Company shall have the right to defer such filing for a reasonable period not
to exceed 90 days after receipt of the request for such Registration from such
holders of Registrable Securities. If the Company shall so postpone the filing
of a Registration Statement and if any holder of Registrable Securities
requesting such Demand Registration pursuant to Section 2.1 within 30 days
after receipt of the notice of postponement advises the Company in writing that
it has determined to withdraw its request for Registration, then such Demand
Registration shall be deemed to be withdrawn by it and such request shall be
deemed not to have been exercised for purposes of determining
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whether such holder retains the right to Demand Registrations pursuant to this
Section 2.1. In addition, if any holder of Registrable Securities so notifies
the Company of its determination to withdraw its request for Registration and,
within the 60 days immediately following the deferral period, any holders of
Registrable Securities make a written request to the Company for Registration
of the same class of Registrable Securities that were subject to the
Registration withdrawn pursuant to the preceding sentence, the Company shall
have no right to defer such Registration pursuant to this paragraph (d).
(e) Registration Statement Form. Registrations under this
Section 2.1 shall be on such appropriate registration form of the Commission
(i) as shall be selected by the Company and as shall be reasonably acceptable
to the holders of a majority of the Registrable Securities requesting a Demand
Registration and (ii) as shall permit the disposition of such Registrable
Securities in accordance with the intended method or methods of disposition
specified in such holders' requests for such Registration. If, in connection
with any Registration under this Section 2.1 which is proposed by the Company
to be on Form S-3 or any successor form to such Form, the managing underwriter,
if any, shall advise the Company in writing that in its opinion the use of
another permitted form is of material importance to the success of the
offering, then such Registration shall be on such other permitted form.
(f) Selection of Underwriters. If any offering pursuant to a
Demand Registration involves an underwritten offering, the holders of a
majority of the Registrable Securities included in such Demand Registration
pursuant to Section 2.1(a) shall have the right to select the managing
underwriter or underwriters to administer the offering, subject to the consent
of the Company, which consent shall not be unreasonably withheld.
(g) Xxxxxxx Participation. In the event that a holder or
holders of Warburg Registrable Securities requests a Demand Registration, the
parties hereto agree that Xxxxxxx and the Xxxxxxx Trust may elect to include a
proportionate share of the Xxxxxxx Registrable Securities held by them in such
Registration, in which case Xxxxxxx (or the Xxxxxxx Trust) shall be permitted
to sell such Xxxxxxx Registrable Securities in the same manner and on the same
basis as such holder or holders of Warburg Registrable Securities, including
for purposes of receiving notice pursuant to Section 2.1(b) and for determining
pursuant to Section 2.1(c) the number of Registrable Securities to be selected
for inclusion in such Registration.
2.2 Piggyback Registrations.
(a) Participation. Subject to Section 2.2(b) hereof, if at any
time and from time to time after the date hereof, the Company files a
Registration Statement under the Securities Act with respect to any offering of
any equity securities by the Company for its own account or for the account of
any of its equity holders (other than (i) a registration on Form S-4 or S-8 or
any successor form to such Forms or (ii) any registration of securities as it
relates to an offering and sale to management of the Company pursuant to any
employee stock plan or other employee benefit plan arrangement) then, as soon
as practicable (but in no event less than ten days prior to the proposed date
of filing such
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Registration Statement, unless notice has been given under Section 2.1(b)), the
Company shall give written notice of such proposed filing to all beneficial
holders of Registrable Securities, which notice may be the same as the Demand
Notice given pursuant to Section 2.1(b) if applicable, and such notice shall
offer the holders of Registrable Securities the opportunity to register such
number of Registrable Securities as each such holder may request (a "Piggyback
Registration"). Subject to Section 2.2(b), the Company shall include in such
Registration Statement all Registrable Securities requested within 30 days
after the receipt of any such notice (which request shall specify the
Registrable Securities intended to be disposed of by such holder) to be
included in the Registration for such offering pursuant to a Piggyback
Registration; provided, however, that 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 register or to delay
registration of such securities, the Company may, at its election, give
written notice of such determination to each holder of Registrable Securities
and, thereupon, (i) in the case of a determination not to register, shall be
relieved of its obligation to register any Registrable Securities in connection
with such Registration (but not from its obligation to pay the Registration
Expenses in connection therewith), without prejudice, however, to the rights of
any holders of Registrable Securities entitled to do so to request that such
Registration be effected as a Registration under Section 2.1, and (ii) in the
case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the delay in
registering such other securities. If the offering pursuant to such
Registration Statement is to be underwritten, then each holder making a request
for a Piggyback Registration pursuant to this Section 2.2(a) must participate
in such underwritten offering and shall not be permitted to make any other
offering in connection with such Registration. If the offering pursuant to
such Registration Statement is to be on any other basis, then each holder
making a request for a Piggyback Registration pursuant to this Section 2.2(a)
must participate in such offering on such basis and shall not be permitted to
make an underwritten offering in connection with such Registration. Each
holder of Registrable Securities shall be permitted to withdraw all or part of
such holder's Registrable Securities from a Piggyback Registration at any time
prior to the effective date thereof.
(b) Underwriter's Cutback. The Company shall use its best
efforts to cause the managing underwriter or underwriters of a proposed
underwritten offering to permit the Registrable Securities requested to be
included in the Registration for such offering under Section 2.2(a) or pursuant
to other piggyback registration rights granted by the Company, if any
("Piggyback Securities"), to be included on the same terms and conditions as
any similar securities included therein. Notwithstanding the foregoing, if the
managing underwriter or underwriters of any such proposed underwritten
offerings informs the Company and the holders of such Registrable Securities in
writing that the total amount or kind of securities, including Piggyback
Securities, which such holders and any other persons or entities intend to
include in such offering would be reasonably likely to adversely affect the
price or distribution of the securities offered in such offering or the timing
thereof, then the securities to be included in such Registration shall be (i)
first, 100% of the securities that the Company or the holder or holders making
a request for a Demand Registration pursuant to Section 2.1 or pursuant to
other demand registration
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rights, as the case may be, proposes to sell, subject to the provisions of
Section 2.1(c), and (ii) second, the number of securities that, in the opinion
of such underwriter or underwriters, can be sold without an adverse effect on
the price, timing or distribution of the securities to be included, selected
pro rata among holders of Registrable Securities and holders of Piggyback
Securities to the extent any of such holders has requested pursuant to Section
2.2(a) or pursuant to other incidental registration rights to be included in
such Piggyback Registration, based on the number of shares of Registrable
Securities or Piggyback Securities requested to be registered by each such
holder.
(c) No Effect on Demand Registrations. No Registration of
Registrable Securities effected pursuant to a request under this Section 2.2
shall be deemed to have been effected pursuant to Section 2.1 hereof or shall
relieve the Company of its obligation to effect any Registration upon request
under Section 2.1 hereof.
2.3 Hold-Back Agreements.
(a) Restrictions on Public Sale by Holder of Registrable
Securities. Each holder of Registrable Securities agrees, if requested by (i)
the Company, (ii) the managing underwriters in an underwritten offering or
(iii) the holders of a majority of the Registrable Securities included pursuant
to Section 2.1 hereof in a Demand Registration not being underwritten, not to
effect any public sale or distribution of securities of the Company the same as
or similar to those being registered, or any securities convertible into or
exchangeable or exercisable for such securities, in any Registration Statement,
including a sale pursuant to Rule 144 under the Securities Act (except as part
of such underwritten registration), during the 14-day period prior to, and
during the 90-day period (or, with respect to a Piggyback Registration, such
longer period of up to 180 days as may be required by such underwriter)
beginning on, the effective date of any Registration Statement (except as part
of such registration) or the commencement of the public distribution of
securities, to the extent timely notified in writing by the Company or the
managing underwriters (or the holders, as the case may be).
(b) Restrictions on Public Sale by the Company and Others. The
Company agrees, if requested by the managing underwriter in an underwritten
offering, not to effect any public sale or distribution of any securities the
same as or similar to those being registered by the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
14-day period prior to, and during the 90-day period (or, with respect to a
Piggyback Registration, such longer period of up to 180 days as may be required
by the underwriter) beginning on, the effective date of a Registration
Statement filed under Section 2.1 or Section 2.2 hereof or the commencement of
the public distribution of securities to the extent timely notified in writing
by a holder of Registrable Securities covered by such Registration Statement or
the managing underwriters (except as part of such registration, if permitted,
or pursuant to registrations on Forms S-4 or S-8 or any successor form to such
Forms or any registration of securities for offering and sale to management of
the Company pursuant to any employee stock plan or other employee benefit plan
arrangement). The Company agrees to use reasonable efforts to obtain from each
holder of restricted securities of the Company the same as or similar to those
being
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registered by the Company, or any restricted securities convertible into or
exchangeable or exercisable for any of its securities, an agreement not to
effect any public sale or distribution of such securities (other than
securities purchased in a public offering) during such period, except as part
of any such registration if permitted.
(c) No Inconsistent Agreements. The Company is not presently a
party to any other agreement with respect to the registration under the
Securities Act of any of its securities. The Company may enter into any other
such agreement; provided, however, that the rights and benefits of a
securityholder with respect to registration of the Company's securities as
contained in any such other agreement shall be no more favorable than the
rights and benefits of holders of Registrable Securities as contained in this
Agreement.
2.4 Registration Procedures. In connection with the Company's
Registration obligations pursuant to Sections 2.1 and 2.2 hereof, the Company
will use its best efforts to effect such registration to permit the sale of
such Registrable Securities in accordance with the intended method or methods
of distribution thereof, and pursuant thereto the Company will as expeditiously
as possible:
(a) prepare and, not later than 45 days after receipt of any
request for a Demand Registration, file with the Commission a Registration
Statement or Registration Statements relating to the applicable Demand
Registration or Piggyback Registration including all exhibits and financial
statements required by the Commission to be filed therewith, and use its best
efforts to cause such Registration Statement to become effective under the
Securities Act; provided, however, that the Company may discontinue any
Registration of its securities which are not Registrable Securities (and, under
the circumstances specified in Section 2.1(d), may delay and, under the
circumstances specified in Section 2.2(a), may delay or discontinue
Registration of its securities which are Registrable Securities) at any time
prior to the effective date of the Registration Statement relating thereto;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be requested by
the holders of a majority of the Registrable Securities or as may be necessary
to keep the Registration Statement effective for a period of not less than 270
days (or such shorter period which will terminate when all Registrable
Securities covered by such Registration Statement have been sold or withdrawn),
or, if such Registration Statement relates to an underwritten offering, such
longer period as in the opinion of counsel for the underwriters a Prospectus is
required by law to be delivered in connection with sales of Registrable
Securities by an underwriter or dealer; cause the Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act; and comply with the provisions
of the Securities Act, the Exchange Act, and the rules and regulations
promulgated thereunder with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus;
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(c) notify the selling holders of Registrable Securities and the
managing underwriters, if any, and (if requested) confirm such advice in
writing, as soon as practicable after notice thereof is received by the Company
(i) when the Registration Statement or any amendment thereto has been filed or
becomes effective, the Prospectus or any amendment or supplement to the
Prospectus has been filed, and, to furnish such selling holders and managing
underwriters with copies thereof, (ii) of any request by the Commission or any
other federal or state governmental authority for amendments or supplements to
the Registration Statement or the Prospectus or for additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order preventing or
suspending the use of any preliminary Prospectus or Prospectus or the
initiation or threatening of any proceedings for such purposes, (iv) if at any
time the representations and warranties of the Company contemplated by
paragraph (m) below cease to be true and correct and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Registrable Securities for offering or sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(d) promptly notify the selling holders of Registrable
Securities and the managing underwriters, if any, when the Company becomes
aware of the happening of any event as a result of which the Registration
Statement or the Prospectus included in such Registration Statement (as then in
effect) contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein (in the case of the
Prospectus and any preliminary prospectus, in the light of the circumstances
under which they were made) not misleading or, if for any other reason it shall
be necessary during such time period to amend or supplement the Registration
Statement or the Prospectus in order to comply with the Securities Act and, in
either case as promptly as practicable thereafter, prepare and file with the
Commission, and furnish without charge to the selling holders and the managing
underwriters, if any, a supplement or amendment to such Registration Statement
or Prospectus which will correct such statement or omission or effect such
compliance;
(e) make every reasonable effort to obtain the withdrawal of any
stop order or other order suspending the use of any preliminary Prospectus or
Prospectus or suspending any qualification of the Registrable Securities;
(f) if requested by the managing underwriter or underwriters or a
holder of Registrable Securities being sold in connection with an underwritten
offering, promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters and the holders of a
majority of the Registrable Securities being sold agree should be included
therein relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to the
number of Registrable Securities being sold to such underwriters, the purchase
price being paid therefor by such underwriters and with respect to any other
terms of the underwritten (or best efforts underwritten) offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective
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amendment as soon as practicable after being notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
(g) furnish to each selling holder of Registrable Securities and
each managing underwriter, without charge, one executed copy and as many
conformed copies as they may reasonably request, of the Registration Statement
and any amendment or post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits (including those incorporated by reference);
(h) deliver to each selling holder of Registrable Securities and
the underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such Persons may reasonably request (it being understood that the Company
consents to the use of the Prospectus or any amendment or supplement thereto by
each of the selling holders of Registrable Securities and the underwriters, if
any, in connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto) and such
other documents as such selling holder may reasonably request in order to
facilitate the disposition of the Registrable Securities by such holder;
(i) on or prior to the date on which the Registration Statement is
declared effective, use its best efforts to register or qualify, and cooperate
with the selling holders of Registrable Securities, the managing underwriter or
agent, if any, and their respective counsel in connection with the registration
or qualification of such Registrable Securities for offer and sale under the
securities or blue sky laws of each state and other jurisdiction of the United
States as any such seller, underwriter or agent reasonably requests in writing
and do any and all other acts or things reasonably necessary or advisable to
keep such registration or qualification in effect for so long as such
Registration Statement remains in effect and so as to permit the continuance of
sales and dealings therein for as long as may be necessary to complete the
distribution of the Registrable Securities covered by the Registration
Statement; provided that the Company will not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified or to take
any action which would subject it to taxation or general service of process in
any such jurisdiction where it is not then so subject;
(j) cooperate with the selling holders of Registrable Securities
and the managing underwriter or agent, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold and not bearing any restrictive legends; and enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters may request at least two business days prior to any sale
of Registrable Securities to the underwriters;
(k) use its best efforts to cause the Registrable Securities
covered by the applicable 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
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thereof or the underwriters, if any, to consummate the disposition of such
Registrable Securities;
(l) not later than the effective date of the applicable
Registration Statement, provide a CUSIP number for all Registrable Securities
and provide the applicable transfer agent with printed certificates for the
Registerable Securities which are in a form eligible for deposit with The
Depository Trust Company;
(m) make such representations and warranties to the holders of
Registrable Securities being registered, and the underwriters or agents, if
any, in form, substance and scope as are customarily made by issuers in primary
underwritten public offerings;
(n) enter into such customary agreements (including a purchase
agreement or underwriting agreement) and take all such other actions as the
holders of at least a majority of any Registrable Securities being sold or the
managing underwriter or agent, if any, reasonably request in order to expedite
or facilitate the registration and disposition of such Registrable Securities;
(o) obtain for delivery to the holders of Registrable Securities
being registered and to the underwriter or agent an opinion or opinions from
counsel for the Company, upon consummation of the sale of such Registrable
Securities to the underwriters (the "Closing Date") in customary form and in
form, substance and scope reasonably satisfactory to such holders, underwriters
or agents and their counsel;
(p) obtain for delivery to the Company and the underwriter or
agent, with copies to the holders of Registrable Securities, a cold comfort
letter from the Company's independent public accountants in customary form and
covering such matters of the type customarily covered by cold comfort letters
as the managing underwriter or the holders of at least a majority of the
Registrable Securities being sold reasonably request, dated the effective date
of the Registration Statement and brought down to the Closing Date;
(q) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the National Association of Securities Dealers, Inc. (the
"NASD");
(r) use its best efforts to comply with all applicable rules and
regulations of the Commission and make generally available to its security
holders, as soon as reasonably practicable (but not more than fifteen months)
after the effective date of the Registration Statement, an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and the rules
and regulations promulgated thereunder;
(s) as promptly as practicable after filing with the Commission
of any document which is incorporated by reference into the Registration
Statement or the Prospectus, provide copies of such document to counsel for the
selling holders of Registrable Securities and to the managing underwriters, if
any;
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(t) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such Registration Statement
from and after a date not later than the effective date of such Registration
Statement; and
(u) use its best efforts to cause all Registrable Securities
covered by the Registration Statement to be listed on each securities exchange
on which any of the Company's securities are then listed or quoted on each
inter-dealer quotation system on which any of the Company's securities are then
quoted.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding the distribution of such securities and such other
information relating to such holder and its ownership of Registrable Securities
as the Company may from time to time reasonably request in writing. Each
holder of Registrable Securities agrees to furnish such information to the
Company and to cooperate with the Company as necessary to enable the Company to
comply with the provisions of this Agreement.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 2.4(d) hereof, such
holder will forthwith discontinue disposition of Registrable Securities
pursuant to such Registration Statement until such holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 2.4(d)
hereof, or until it is advised in writing by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the Prospectus,
and, if so directed by the Company, such holder will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in
such holder's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the time periods during which such
Registration Statement shall be maintained effective (including the period
referred to in Section 2.4(b) hereof) 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 Registrable Securities covered by
such Registration Statement either receives the copies of the supplemented or
amended Prospectus contemplated by Section 2.4(d) hereof or is advised in
writing by the Company that the use of the Prospectus may be resumed.
2.5 Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by holders of Registrable Securities
pursuant to a Registration requested under Section 2.1, the Company will use
reasonable efforts to enter into an underwriting agreement with such
underwriters for such offering, such agreement to be reasonably satisfactory in
substance and form to the Company, each such holder and the underwriters and to
contain such representations and warranties by the Company and such other
terms as are generally prevailing in agreements of that type, including,
without limitation, indemnities to the effect and to the extent provided in
Section 2.8. The holders
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of the Registrable Securities proposed to be distributed by such underwriters
will cooperate with the Company in the negotiation of the underwriting
agreement and will give consideration to the reasonable suggestion of the
Company regarding the form thereof. Such 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 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 such underwriters under
such underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. Any such holder of Registrable Securities
shall not be required to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such holder, such holder's Registrable
Securities, such holder's intended method of distribution and any other
representations required by law.
(b) Incidental Underwritten Offerings. If the Company proposes to
register any of its securities under the Securities Act as contemplated by
Section 2.2 and such securities are to be distributed by or through one or more
underwriters, the Company, will, if requested by any holder of Registrable
Securities pursuant to Section 2.2 and subject to the provisions of Section
2.2(b), use its best efforts to arrange for such underwriters to include all
the Registrable Securities to be offered and sold by such holder among the
securities of the Company 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 such underwriters under such underwriting
agreement be conditions precedent to the obligations of such holders of
Registrable Securities. Any such holder of Registrable Securities shall not be
required to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or
agreements regarding such holder, such holders' Registrable Securities and such
holder's intended method of distribution or any other representations required
by law.
(c) Participation in Underwritten Registrations. No Person may
participate in any underwritten registration hereunder unless such Person (i)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
2.6 Preparation; Reasonable Investigation. In connection with
the preparation and filing of each Registration Statement, the Company will give
the holders of Registrable Securities registered under such Registration
Statement, their underwriters, if any, and their respective counsel and
accountants the opportunity to participate in the
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preparation of such Registration Statement, each Prospectus included therein or
filed with the Commission, and, to the extent practicable, each amendment
thereof or supplement thereto, and give each of them such access to its books
and records (to the extent customarily given to underwriters of the Company's
securities) and such opportunities to discuss the business of the Company with
its officers and the independent public accountants who have certified 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; provided, however, that any books,
records, information or documents that are designated by the Company in writing
as confidential shall be kept confidential by such Persons unless disclosure
thereof is required by law.
2.7 Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Agreement, including without limitation
(i) all registration and filing fees, and any other fees and expenses
associated with filings required to be made with the Commission or the NASD
(including, if applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel as may be required by the rules and regulations of
the NASD), (ii) all fees and expenses of compliance with state securities or
blue sky laws (including fees and disbursements of counsel for the underwriters
or selling holders in connection with blue sky qualifications of the
Registrable Securities and determination of their eligibility for investment
under the laws of such jurisdictions as the managing underwriters or holders of
a majority of the Registrable Securities being sold may designate), (iii) all
printing and related messenger and delivery expenses (including expenses of
printing certificates for the Registrable Securities in a form eligible for
deposit with The Depository Trust Company and of printing prospectuses), (iv)
all fees and disbursements of counsel for the Company and of all independent
certified public accountants of the Company (including the expenses of any
special audit and cold comfort letters required by or incident to such
performance), (v) reasonable premiums for Securities Act liability insurance if
the Company so desires or the underwriters so reasonably require in accordance
with then customary underwriting practice, (vi) all fees and expenses incurred
in connection with the listing of the Registrable Securities on any securities
exchange or quotation of the Registrable Securities on any inter-dealer
quotation system, (vii) all reasonable fees and disbursements of one counsel
selected by the holders of a majority of the Registrable Securities being
registered in the case of a Piggyback Registration, or one counsel selected by
Warburg in the case of a Demand Registration requested by Warburg pursuant to
Section 2.1 and one counsel selected by the holder or holders of at least a
majority of the Kojaian Registrable Securities in the case of a Demand
Registration requested by the Kojaian Investors pursuant to Section 2.1, in
each case to represent such holders in connection with such registration,
(viii) all fees and disbursements of underwriters customarily paid by the
issuers or sellers of securities, excluding underwriting discounts and
commissions and transfer taxes, if any, and excluding fees and disbursements of
counsel to such underwriters (other than such fees and disbursements incurred
in connection with any registration or qualification of Registrable Securities
under the securities or blue sky laws of any state), (ix) all fees and expenses
of accountants to the holders of Registrable Securities being sold and (x) fees
and expenses of other Persons retained by the Company (all such expenses being
herein called "Registration Expenses"),
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will be borne by the Company, regardless of whether the Registration Statement
becomes effective (except as provided in Section 2.1 hereof). The Company
will, in any event, pay its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any audit and the fees and expenses of any
Person, including special experts, retained by the Company.
2.8 Indemnification.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, each holder
of Registrable Securities, its officers, directors, employees and agents and
each Person who controls such holder (within the meaning of the Securities Act
or the Exchange Act) from and against all losses, claims, damages, liabilities
and expenses (including reasonable costs of investigation and legal expenses)
arising out of or based upon any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or
preliminary Prospectus or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are caused by or contained
in any information furnished in writing to the Company by such holder expressly
for use therein; provided, however, 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 made in any such preliminary Prospectus if (i)
it is determined that it was the responsibility of such holder to provide the
Person asserting such loss, claim, damage, liability or expense with a current
copy of the Prospectus and such holder failed to deliver or cause to be
delivered a copy of the Prospectus to such Person after the Company had
furnished such holder with a sufficient number of copies of the same and (ii)
the Prospectus completely corrected in a timely manner such untrue statement or
omission. This indemnity shall be in addition to any liability the Company may
otherwise have, shall remain in full force and effect regardless of any
investigation made by or on behalf of such holder or any such officer,
director, employee, agent or controlling Person and shall survive termination
of this Agreement and the transfer of Registrable Securities by such holder.
The Company will also indemnify underwriters, selling brokers, dealer managers
and similar securities industry professionals participating in the
distribution, their officers and directors and each Person who controls such
Persons (within the meaning of the Securities Act and the Exchange Act) to the
same extent as provided above (with appropriate modification) with respect to
the indemnification of the holders of Registrable Securities, if requested.
(b) Indemnification by the Selling Holder of Registrable
Securities. Each selling holder of Registrable Securities agrees to indemnify
and hold harmless, to the full extent permitted by law, the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act or the Exchange Act) from and against any losses,
claims, damages, liabilities and expenses resulting from any untrue statement
of a material fact or any omission of a material fact required to be stated in
the Registration Statement, Prospectus or preliminary Prospectus or necessary to
make the statements therein not misleading, to the extent, but only to the
extent, that such untrue
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statement or omission is contained in any information furnished in writing by
such selling holder to the Company specifically for inclusion in such
Registration Statement or Prospectus and has not been corrected in a subsequent
writing prior to or concurrently with the sale of the Registrable Securities to
the Person asserting such loss, claim, damage, liability or expense. This
indemnity shall be in addition to any liability such selling holder may
otherwise have, shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any such officer, director
or controlling Person and shall survive termination of this Agreement and the
transfer of Registrable Securities by such selling holder. The Company shall
be entitled to receive indemnities from underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, to the same extent as provided above (with appropriate
modification) with respect to information so furnished in writing by such
Persons specifically for inclusion in any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Person entitled
to indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim
with counsel reasonably satisfactory to the indemnified party; provided,
however, that any delay or failure to so notify the indemnifying party shall
relieve the indemnifying party of its obligations hereunder only to the extent,
if at all, that it is prejudiced by reason of such delay or failure; provided
further, however, that any Person entitled to indemnification hereunder shall
have the right to select and employ separate counsel and to participate in the
defense of such claim, but the fees and expenses of such counsel shall be at
the expense of such Person unless (i) the indemnifying party has agreed in
writing to pay such fees or expenses, or (ii) the indemnifying party shall have
failed to assume the defense of such claim within a reasonable time after
receipt of notice of such claim from the Person entitled to indemnification
hereunder and employ counsel reasonably satisfactory to such Person, or (iii)
in the reasonable judgment of any such Person, based upon advice of its
counsel, a conflict of interest may exist between such Person and the
indemnifying party with respect to such claims (in which case, if the Person
notifies the indemnifying party in writing that such Person elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such claim on behalf of
such Person). If such defense is not assumed by the indemnifying party, the
indemnifying party will not be subject to any liability for any settlement made
without its consent (but such consent will not be unreasonably withheld),
provided that an indemnifying party shall not be required to consent to any
settlement involving the imposition of equitable remedies or involving the
imposition of any material obligations on such indemnifying party other than
financial obligations for which such indemnified party will be indemnified
hereunder. No indemnifying party shall 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. Whenever
the indemnified party or the indemnifying party receives a firm offer to settle
a claim for which indemnification is sought hereunder, it shall promptly notify
the other of such offer. If the indemnifying party refuses to accept such
offer within 20 business days after receipt of such offer (or of notice
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thereof), such claim shall continue to be contested and, if such claim is
within the scope of the indemnifying party's indemnity contained herein, the
indemnified party shall be indemnified pursuant to the terms hereof. If the
indemnifying party notifies the indemnified party in writing that the
indemnifying party desires to accept such offer, but the indemnified party
refuses to accept such offer within 20 business days after receipt of such
notice, the indemnified party may continue to contest such claim and, in such
event, the total maximum liability of the indemnifying party to indemnify or
otherwise reimburse the indemnified party hereunder with respect to such claim
shall be limited to and shall not exceed the amount of such offer, plus
reasonable out-of-pocket costs and expenses (including reasonable attorneys'
fees and disbursements) to the date of notice that the indemnifying party
desires to accept such offer, provided that this sentence shall not apply to
any settlement of any claim involving the imposition of equitable remedies or
to any settlement imposing any material obligations on such indemnified party
other than financial obligations for which such indemnified party will be
indemnified hereunder. An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the written opinion of
counsel to the indemnified party reasonably satisfactory to the indemnifying
party, use of one counsel by the underwriters on the one hand, and by the
securityholders on the other, would be expected to give rise to a conflict of
interest between such underwriters, on the one hand and such securityholders on
the other with respect to such claim, in which event the indemnifying party
shall be obligated to pay the fees and expenses of one such additional counsel.
(d) Contribution. If for any reason the indemnification provided
for in the preceding paragraphs (a) and (b) is unavailable to an indemnified
party or insufficient to hold it harmless as contemplated by the preceding
paragraphs (a) and (b), then the indemnifying party shall contribute to the
amount paid or payable by the indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect not
only the relative benefits received by the indemnified party and the
indemnifying party, but also the relative fault of the indemnified party and
the indemnifying party, as well as any other relevant equitable considerations,
provided that no selling holder of Registrable Securities shall be required to
contribute in an amount greater than the dollar amount of the proceeds received
by such selling holder with respect to the sale of any such Registrable
Securities. 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.
2.9 Rules 144 and 144A. 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 Commission thereunder (or, if
the Company is not required to file such reports, it will, upon the request of
any holder of Registrable Securities after the date that is the second
anniversary of the date hereof, make publicly available other information so
long as necessary to permit sales pursuant to Rules 144 or 144A under the
Securities Act), and it will take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable
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such holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rules
144 or 144A under the Securities Act, as such Rules may be amended from time to
time, or (ii) any similar rule or regulation hereafter adopted by the
Commission. Upon the request of any holder of Registrable Securities, the
Company will deliver to such holder a written statement as to whether it has
complied with such requirements.
3. Transfer of Securities.
3.1 Notice of Proposed Transfer. At the time of any transfer or sale
or proposed transfer or sale of any Securities, the Company may require written
notice describing briefly the manner of such transfer or sale and a written
opinion of counsel for the holder thereof (who may be inside counsel) to the
effect that such transfer or sale may be effected without the registration of
such Securities under the Securities Act and will be made in compliance with
applicable state securities and blue sky laws. The Company shall thereupon
permit or cause its transfer agent (if any) to permit such transfer or sale to
be effected unless the Company, within five days after receipt of such notice
and opinion, shall furnish to such holder and such holder's counsel (if any) an
opinion of the Company's outside counsel which (i) states that such sale or
transfer may not be effected without the registration of such Securities under
the Securities Act (or will not be made in compliance with applicable
securities and blue sky laws) and (ii) specifies the reasons, factual, legal or
both, why such counsel's opinion differs from that of holder's counsel.
However, if in such written notice to the Company the transferring holder
informs the Company that the transfer or sale is to a purchaser or transferee
whom the transferring holder knows or reasonably believes to be a "qualified
institutional buyer," as that term is defined in Rule 144A promulgated under
the Securities Act, no opinion of counsel shall be required.
3.2 Termination of Restrictions. Notwithstanding the foregoing
provisions of this Section 3, the restrictions imposed by this Section 3 upon
the transferability of the Securities shall terminate as to any particular
Securities when (i) such Securities shall have been effectively registered
under the Securities Act and sold by the holder thereof in accordance with such
registration, (ii) such Securities have been sold in accordance with Rule 144
or Rule 144A promulgated under the Securities Act, or (iii) written opinions to
the effect that such restrictions are no longer required or necessary under any
federal or state law or regulation have been received from counsel for the
holder thereof (who may be inside counsel) and, if the Company shall so
require, from counsel for the Company.
3.3 Exchange, Transfer and Replacement of Certificates. Subject to
the foregoing provisions of this Section 3, upon surrender of any certificate
representing Securities duly endorsed for exchange or transfer, the Company
will, at its expense, or will cause its transfer agent, at the Company's
expense, to issue in exchange therefor new certificates in such denominations
as may be requested representing in the aggregate the same number of Securities
represented by the certificate so surrendered and registered as such
stockholder may request. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of any certificate
representing Securities and, in the case of any such loss, theft or
destruction, upon delivery of an agreement of indemnity satisfactory
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to the Company or, in the case of any such mutilation, upon surrender and
cancellation of such certificate, the Company will issue, at its expense, or
will cause its transfer agent, at the Company's expense, to issue a new
certificate representing the same aggregate number of Securities represented by
such lost, stolen, destroyed or mutilated certificate; provided, however, that
in the event of any loss, theft or destruction of any certificate representing
Securities registered in the name of Warburg, Xxxxxxx or the Kojaian Investors
or any of their respective Affiliates, or in the name of any other holder which
is an institutional investor or its nominee, the Company shall not require such
person or Affiliate or any other holder which is an institutional investor or
its nominee to furnish any indemnity or surety bond in connection with the
issuance of a new certificate therefor if the Company is furnished with an
affidavit of the holder (if the holder is an individual) or, otherwise, the
Chairman of the Board, President, any Vice President, Treasurer or any
Assistant Treasurer of the holder (or, in the case of a nominee, the beneficial
owner for which such holder is serving as nominee) setting forth the fact of
such loss, theft or destruction and, together with such affidavit, such holder
furnishes (or, in the case of a nominee, the beneficial owner for which such
holder is serving as nominee furnishes) to the Company its written agreement to
indemnify the Company with respect to such loss, theft or destruction; the
Company shall, however, have the right to require any holder of Securities
other than Warburg, Xxxxxxx or the Kojaian Investors or any of their respective
Affiliates or any other holder which is an institutional investor or its
nominee to furnish such an indemnity or surety bond. The party delivering any
certificate representing Securities pursuant to this Section 3.3 will pay the
cost of such delivery (including the cost of insurance against loss or theft in
an amount satisfactory to the sender).
4. Miscellaneous.
4.1. Injunctive Relief. Remedies for breach by the Company of its
obligations to register the Registrable Securities shall be as otherwise set
forth herein. It is hereby agreed and acknowledged that it will be impossible
to measure in money the damages that would be suffered if the parties fail to
comply with any of the obligations herein imposed on them and that in the event
of any such failure, an aggrieved Person will be irreparably damaged and will
not have an adequate remedy at law. Any such Person shall, therefore, be
entitled to injunctive relief, including specific performance, to enforce such
obligations, and if any action should be brought in equity to enforce any of
the provisions of this Agreement, none of the parties hereto shall raise the
defense that there is an adequate remedy at law.
4.2. Notices. All notices, other communications or documents
provided for or permitted to be given hereunder, shall be made in writing and
shall be given either personally by hand-delivery, by facsimile transmission,
by mailing the same in a sealed envelope, registered first-class mail, postage
prepaid, return receipt requested, or by air courier guaranteeing overnight
delivery:
(a) If to the Company: Xxxxx & Xxxxx Company
00000 X. Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
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Attention: General Counsel
Telecopy number: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopy number: (000) 000-0000
(b) If to Warburg: Warburg, Xxxxxx Investors, L.P.
c/o X. X. Xxxxxxx, Xxxxxx & Co., Inc.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telecopy number: (000) 000-0000
With a copy to: Wachtell, Lipton, Xxxxx & Xxxx
00 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
Telecopy number: (000) 000-0000
(c) If to the Kojaian Investors: Mr. C. Xxxxxxx Xxxxxxx
Xx. Xxxx Xxxxxxx
Xx. Xxxxxxx X. Xxxxxxx
c/o Kojaian Management Corporation
00000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telecopy number: (000) 000-0000
With a copy to: Honigman, Miller, Xxxxxxxx & Xxxx
2290 First National Building
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxx
Telecopy number: (000) 000-0000
(d) If to Xxxxxxx: Xxx X. Xxxxxxx
Combined Investments, L.P.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Telecopy number: (000) 000-0000
Each party hereto, by written notice given to the other parties hereto in
accordance with this Section 4.2 may change the address to which notices, other
communications or documents are to be sent to such party. All notices, other
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communications or documents shall bedeemed to have been duly given: (i) at the
time delivered by hand, if personally delivered; (ii) when receipt is
acknowledged by electronic confirmation, if by facsimile transmission; (iii)
four business days after being deposited in the mail, postage prepaid, if
mailed; and (iv) on the next business day, if timely delivered to an air
courier guaranteeing overnight delivery; provided, however, that notices of a
change of address shall be effective only upon receipt.
4.3. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and be binding
upon the parties, and successors and assigns of each of the parties.
(b) All of the terms, covenants and agreements contained in this
Agreement are solely for the benefit of the parties hereto and their respective
successors and assigns as provided in Section 4.3(a), and no other parties
(including, without limitation, any other stockholder or creditor of the
Company, or any director, officer or employee of the Company) are intended to
be benefitted by, or entitled to enforce, this Agreement.
4.4. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the principles of conflicts of laws.
4.5. Headings. The headings in this Agreement are inserted herein
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
4.6. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
4.7. Entire Agreement; Amendment. This Agreement contains the entire
agreement among the parties hereto with respect to the subject matter contained
herein, supersedes all prior agreements, negotiations and understandings,
whether written or oral, with respect to the subject matter hereof, and may not
be amended, modified or supplemented, and waivers and consents to departures
from the provisions hereof may not be given, except by an instrument in writing
signed the holders of not less than a majority of the Warburg Registrable
Securities, the Xxxxxxx Registrable Securities and the Kojaian Registrable
Securities, treated as one class, and by the Company. There are no
restrictions, promises, warranties or undertakings, other than those set forth
in this Agreement.
4.8. Waiver. No action taken pursuant to this Agreement shall be
deemed to constitute a waiver by the party taking such action of compliance
with any covenants or agreements contained herein. No failure to exercise and
no delay in exercising any right, power or privilege of a party hereunder shall
operate as a waiver nor a consent to the
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modification of the terms hereof unless given by that party in writing. The
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any preceding or succeeding breach.
4.9. Inspection. So long as this Agreement shall be in effect,
this Agreement shall be made available for inspection by any stockholder of the
Company at the principal offices of the Company.
4.10. Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts each of which
when so executed shall be deemed to be an original and all of which together
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the date first written above.
XXXXX & XXXXX COMPANY
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Its: Senior Vice President
-----------------------
WARBURG, XXXXXX INVESTORS, L.P.
By Warburg, Xxxxxx & Co.,
General Partner
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------
Its: Partner
------------------------
/s/ Xxx X. Xxxxxxx
------------------------------
Xxx X. Xxxxxxx
/s/ C. Xxxxxxx Xxxxxxx
------------------------------
C. Xxxxxxx Xxxxxxx
/s/ Xxxx Xxxxxxx
------------------------------
Xxxx Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx
