Exhibit 5
REGISTRATION RIGHTS AGREEMENT
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.
(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 specified
that the offering pursuant thereto shall be on any other basis, then 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
11
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;
12
(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
13
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
14
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"),
15
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
16
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
17
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
18
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
19
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
20
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
21
communications or documents shall be deemed 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
22
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 and General Counsel
-------------------------------------------
WARBURG, XXXXXX INVESTORS, L.P.
By Warburg, Xxxxxx & Co.,
General Partner
By: /s/ Xxxx 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
