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EXHIBIT Q
Registration Rights Agreement among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Financial Performance Corporation.
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF
NOVEMBER 17, 1999
AMONG
FINANCIAL PERFORMANCE CORPORATION
AND
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
AND
▇▇▇▇▇▇ ▇▇▇▇
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND USAGE...............................................1
Section 1.1 Definitions......................................................1
Section 1.2 Usage............................................................4
ARTICLE II DEMAND AND SHELF REGISTRATION STATEMENTS............................5
Section 2.1 Demand Registration Statements...................................5
Section 2.2 Shelf Registration Statements....................................6
Section 2.3 Limitation on Demand Registration................................6
Section 2.4 Manner of Sale...................................................7
Section 2.5 Withdrawal.......................................................7
ARTICLE III PIGGYBACK REGISTRATION STATEMENTS...................................7
Section 3.1 Piggyback Registration Statements................................7
Section 3.2 Priority in Registrations........................................8
ARTICLE IV REGISTRATION PROCEDURES AND EXPENSES................................9
Section 4.1 Registration Procedures..........................................9
Section 4.2 Holders' Obligations............................................12
Section 4.3 Registration Expenses...........................................14
ARTICLE V INDEMNIFICATION AND CONTRIBUTION...................................14
Section 5.1 Indemnification by the Company..................................14
Section 5.2 Indemnification by the Selling Holders..........................15
Section 5.3 Notice of Claims, etc...........................................15
Section 5.4 Contribution....................................................16
Section 5.5 Survival........................................................17
ARTICLE VI RULE 144 AND RULE 144A.............................................17
Section 6.1 Reports, etc....................................................17
Section 6.2 Rule 144 Information............................................17
Section 6.3 Rule 144A Information...........................................17
ARTICLE VII MISCELLANEOUS......................................................17
Section 7.1 Amendment, Modification and Waivers; Further Assurances.........17
Section 7.2 Assignment......................................................18
Section 7.3 Invalid Provisions..............................................18
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 7.4 Nominees for Beneficial Owners..................................18
Section 7.5 Governing Law...................................................19
Section 7.6 Notices.........................................................19
Section 7.7 Entire Agreement; Integration...................................21
Section 7.8 Injunctive Relief...............................................21
Section 7.9 Section Headings................................................21
Section 7.10 Counterparts....................................................21
Section 7.11 Filing..........................................................21
Section 7.12 Termination.....................................................22
Section 7.13 Attorneys' Fees.................................................22
Section 7.14 No Third Party Beneficiaries....................................22
Section 7.15 Requisite Holders...............................................22
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REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement dated as of November 17, 1999 by and among
Financial Performance Corporation, a New York corporation (the "Company"),
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇"), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
("▇▇▇▇▇▇▇▇▇") and ▇▇▇▇▇▇ ▇▇▇▇ ("▇▇▇▇").
RECITALS
WHEREAS, ▇▇▇▇▇▇ is President, Chief Executive Officer, Principal
Financial Officer and a shareholder of the Company;
WHEREAS, the Company and ▇▇▇▇▇▇ desire to set forth in this agreement the
registration rights which the Company will grant to ▇▇▇▇▇▇,
WHEREAS, ▇▇▇▇▇ is a principal shareholder of the Company;
WHEREAS, ▇▇▇▇▇ has entered into several registration rights agreements
with the Company and desires to set forth in one agreement, to supercede any and
all such prior registration rights agreements, all of the registration rights
granted to him by the Company; and
WHEREAS, as of the date hereof, ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ have each become
directors of the Company and principal shareholders of the Company through their
purchase from ▇▇▇▇▇ of an aggregate of 1,000,000 shares of common stock and
options to purchase an additional 2,500,000 shares of common stock of the
Company and the grant to them by the Company of options to purchase an aggregate
of 2,000,000 shares of common stock of the Company,
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND USAGE
Section 1.1 Definitions. As used in this Agreement:
Affiliate. "Affiliate" shall mean (a) when used with reference to any
partnership, any Person that, directly or indirectly through one or more
intermediaries, owns or controls 10% or more of either the capital or profit
interests of such partnership or is a general partner of such partnership or is
a Person in which such partnership has a 10% or greater direct or indirect
equity interest, and (b) when used with reference to any corporation, any Person
that, directly or indirectly, owns or controls 10% or more of the outstanding
voting securities of such corporation or is a Person in which such corporation
has a 10% or greater direct or indirect equity interest. In addition, the term
"Affiliate," when used with reference to any Person, also means any other Person
that, directly or indirectly through one or more intermediaries, controls or is
controlled by
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or is under common control with such Person. As used in the preceding sentence,
(i) the term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of the
entity referred to, whether through ownership of voting securities, by contract,
or otherwise, and (ii) the terms "controlling" and "controls" shall have
meanings correlative to the foregoing.
Agreement. "Agreement" shall mean this Registration Rights Agreement, as
the same may be amended from time to time.
Commission. "Commission" shall mean the United States Securities and
Exchange Commission, or any successor governmental agency or authority thereto.
Common Stock. "Common Stock" shall mean (a) the common stock, par value
$0.01 per share, of the Company, and (b) shares of capital stock of the Company
issued by the Company in respect of or in exchange for shares of such common
stock in connection with any stock dividend or distribution, stock split-up,
recapitalization, recombination or exchange by the Company generally of shares
of such common stock.
Demand Registration Request. "Demand Registration Request" shall have the
meaning set forth in Section 2.1(a).
Demand Registration Statement. "Demand Registration Statement" shall have
the meaning set forth in Section 2.1(a).
Demanding Holders. "Demanding Holders" shall have the meaning set forth
in Section 2.1(a).
Exchange Act. "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
Holder or Holders. "Holders" shall mean each of Finley, Trump, ▇▇▇▇▇▇▇▇▇
and ▇▇▇▇ and any Person or Persons to whom the rights granted under this
Agreement are transferred by Finley, Trump, ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇ and the Permitted
Transferees (thereof of any such Transferee as defined in Section 7.2 hereof)
pursuant to Section 7.2 hereof.
Person. "Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or other agency or political
subdivision thereof.
Piggyback Registration Statement. "Piggyback Registration Statement"
shall have the meaning set forth in Section 3.1.
Register, Registered and Registration. "Register", "registered", and
"registration" shall refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities
Act, and the declaration or ordering by the Commission of effectiveness of such
registration statement or document.
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Registrable Securities. "Registrable Securities" shall mean (a) the
shares of Common Stock beneficially owned (as determined under Rule 13d-3 under
the Exchange Act) by the Holders on the date hereof; (b) any shares of Common
Stock or other securities issued to the Holders as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange by the
Company generally for, or in replacement by the Company generally of, such
shares of Common Stock; and (c) any securities issued in exchange for shares of
Common Stock beneficially owned by a Holder on the date hereof in any merger,
recapitalization or reorganization of the Company. As to any particular
Registrable Securities, once issued, such securities will cease to be
Registrable Securities (a) when a registration statement with respect to the
resale of such securities has become effective under the Securities Act and such
securities shall have been disposed of in accordance with the plan of
distribution set forth in such registration statement; (b) when such securities
have been transferred pursuant to Rule 144 to a third party who is not an
Affiliate of the Company, and new certificates evidencing such securities
without legends restricting further transfer have been delivered by the Company,
and the Holders have received an opinion of Company counsel that, in the opinion
of such counsel, subsequent public distribution of such securities requires
neither registration under the Securities Act or qualification (or any similar
filing) under any state securities or blue sky law then in effect nor the use of
an applicable exemption from such registration qualification; or (c) in the
event such Holder is not an Affiliate of the Company, when all of a Holder's
otherwise Registrable Securities may be immediately sold without registration
under the Securities Act pursuant to Rule 144 without any restrictions under
Rule 144(k).
Registration Expenses. "Registration Expenses" shall mean all expenses
incident to the Company's performance of, or compliance with, this Agreement,
including, without limitation, (a) all registration, filing, securities exchange
listing, rating agency and National Association of Securities Dealers, Inc.
fees, (b) all registration, filing, qualification and other fees and expenses of
complying with securities or blue sky laws of all jurisdictions in which the
securities are to be registered and the reasonable legal fees and expenses
incurred in connection with the blue sky qualifications of the Registrable
Securities and the determination of their eligibility for investment under the
laws of all such jurisdictions, (c) all word processing, duplicating, printing,
messenger and delivery expenses incurred by the Company, (d) the fees and
disbursements of counsel for the Company and of its independent public
accountants, including, without limitation, the expenses of any special audits
or "cold comfort" letters required by or incident to such performance and
compliance, (e) the reasonable fees and disbursements incurred for one counsel
or firm of counsel selected by the Requisite Holders of the Registrable
Securities, (f) premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Registrable Securities
being registered to the extent the Company elects to obtain such insurance, (g)
any fees and disbursements of underwriters customarily paid by issuers or
sellers of securities (but excluding underwriting discounts, concessions,
allowances and commissions and transfer taxes, if any, relating to the
Registrable Securities being registered), and (h) fees and expenses of other
Persons retained or employed by the Company.
Requisite Holders. "Requisite Holders" shall mean any Selling Holder or
Selling Holders of a majority in interest of the Registrable Securities
requested to be included in a registration or other relevant action, as the case
may be.
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Rule 144. "Rule 144" shall mean Rule 144 promulgated by the Commission
under the Securities Act, and any successor provision thereto.
Rule 144A. "Rule 144A" shall mean Rule 144A promulgated by the Commission
under the Securities Act, and any successor provision thereto.
Securities Act. "Securities Act" shall mean the Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder.
Selling Holders. "Selling Holders" shall mean, with respect to a
specified registration pursuant to this Agreement, Holders whose Registrable
Securities are included in such registration.
Shelf Registration Statement. "Shelf Registration Statement" shall have
the meaning set forth in Section 2.2(a).
Transfer. "Transfer" shall mean and include the act of selling, giving,
transferring, creating a trust (voting or otherwise), assigning or otherwise
disposing of (other than pledging, hypothecating or otherwise transferring as
collateral security for an underlying obligation) (and correlative words shall
have correlative meanings); provided, however, that any transfer or other
disposition upon foreclosure or other exercise of remedies of a secured creditor
after an event of default under or with respect to a pledge, hypothecation or
other transfer as collateral security shall constitute a "Transfer."
Underwriters' Representative. "Underwriters' Representative" shall mean
the managing underwriter, or, in the case of a co-managed underwriting, the lead
manager, within the meaning of Rule 12b-2 under the Exchange Act.
Violation. "Violation" shall have the meaning set forth in Section 5.1.
Section 1.2 Usage. (a) References to a Person are also references to
its assigns and successors in interest (by any means whatever, including merger,
consolidation or sale of all or substantially all of the assets of such Person
or otherwise, as the case may be).
(b) References to Registrable Securities "owned" by a Holder
shall include Registrable Securities beneficially owned by such Person but which
are held of record in the name of a nominee, trustee, custodian, or other agent,
but shall exclude shares of Common Stock held by a Holder in a fiduciary
capacity for customers of such Person.
(c) References to a document are to it as amended, waived and
otherwise modified from time to time and references to a statute or other
governmental rule are to it as amended and otherwise modified from time to time
(and references to any provision thereof shall include references to any
successor provision).
(d) References to Sections, Articles or Schedules are to
sections or articles hereof or schedules hereto, unless the context otherwise
requires.
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(e) The definitions set forth herein are equally applicable
both to the singular and plural forms and the feminine, masculine and neuter
forms of the terms defined.
(f) The term "including" and correlative terms shall be deemed
to be followed by "without limitation" whether or not followed by such words or
words of like import.
(g) The "date of" any notice or request given pursuant to this
Agreement shall be determined in accordance with Section 7.6.
ARTICLE II
DEMAND AND SHELF REGISTRATION STATEMENTS
Section 2.1 Demand Registration Statements. (a) At any time during the
period commencing on the date hereof and ending on the fifth anniversary hereof,
a Holder (the "Demanding Holder") may at his option make a written request (a
"Demand Registration Request") to the Company requesting that the Company file
with the Commission a registration statement on an appropriate form under the
Securities Act (a "Demand Registration Statement") to register all or such
number of such Demanding Holder's Registrable Securities as the Demanding Holder
shall request in writing; provided, however, that no request may be made
pursuant to this Section 2.1 unless the Demanding Holder requests that at least
250,000 shares of Registrable Securities be included in the Demand Registration
Statement. Upon receipt of a Demand Registration Request, the Company shall
promptly give written notice of such proposed registration to all other Holders
known to the Company. Such Holders shall have the right, by giving written
notice to the Company within fifteen (15) days after the Company provides its
notice, to elect to have included in such registration such number of their
Registrable Securities as such Holders may request in such notice. Each Holder
may, at any time up to five (5) business days before the filing date of the
applicable Registration Statement relating to the Demand Registration, request
that his Registrable Securities not be included therein by providing a written
notice to that effect to the Company. The Company shall not be obligated to file
the Demand Registration Statement if, after giving effect to any such
withdrawal(s) from one or more Holders, the Demand Registration Statement does
not include at least 250,000 shares of Common Stock constituting Registrable
Securities.
After an effective Demand Registration Request is made, the Company
shall, as soon as reasonably practicable but in any event within 60 days of the
date of such Demand Registration Request (unless the Company's financial
statements would otherwise be "stale" under Rule 3-12 of Regulation S-X), file
with the Commission the Demand Registration Statement. Any Demand Registration
Statement shall provide for an underwritten offering (whether on a "firm," "best
efforts" or "all reasonable efforts" basis or otherwise) or an offering on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act. Any
Demand Registration Request made pursuant to this Section 2.1 shall be addressed
to the attention of the President of the Company and shall specify the number of
Registrable Securities to be registered, the intended methods of disposition
thereof and that the request is for a Demand Registration Statement pursuant to
this Section 2.1. The Company shall use its reasonable best efforts to keep any
Demand Registration
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Statement continuously effective for a period of one year following the
effective date thereof, or such shorter period ending on the earlier of (i) when
all Registrable Securities covered by such Registration Statement have been sold
or (ii) if none of the Holders of Registrable Securities included in such
Registration Statement are Affiliates of the Company, the first date when all
Registrable Securities covered by the Registration Statement may be immediately
sold without registration under the Securities Act pursuant to the exemptions
provided by Rule 144 under the Securities Act and without restriction under Rule
144(k), subject to the provisions of Article IV hereof.
(b) The Company shall be entitled to postpone for up to 90 days
the filing of any Demand Registration Statement otherwise required to be
prepared and filed pursuant to this Section 2.1 if (i) the Board of Directors of
the Company determines, in its good faith reasonable judgment, that such
registration and the Transfer of Registrable Securities contemplated thereby
would materially interfere with, or require the premature disclosure of, any
financing, securities purchase, acquisition or reorganization or other material
transaction involving the Company or any of its subsidiaries or would otherwise
require the premature disclosure of any other material nonpublic information as
to which the Company has a bona fide business purpose for maintaining its
confidentiality, and (ii) the Company promptly gives the Demanding Holders
notice of such determination (which notice need not disclose the fact, event or
information); provided, however, that the Company shall not have, within the 12
months prior to the date of the postponement, postponed pursuant to this Section
2.1(b) the filing of any other Demand Registration Statement covering such
Holder's Registrable Securities that was subsequently abandoned because the
Demand Registration Request relating thereto was withdrawn.
Section 2.2 Shelf Registration Statements. As soon as practicable but
no later than 120 days after the date hereof, the Company shall file with the
Commission a registration statement on Form ▇▇-▇, ▇-▇ or Form S-3 (if use of
such form is then available) or such other appropriate form in accordance with
the Securities Act for an offering or offerings by the Holders of the
Registrable Securities on a delayed or continuous basis pursuant to Rule 415
under the Securities Act (each, a "Shelf Registration Statement"). The Company
shall use its reasonable best efforts to have such Shelf Registration Statement
declared effective within 180 days following the filing of the registration
statement. Subject to compliance with the provisions of Section 4.2, each Holder
shall be entitled to have all or a portion of such Holder's Registrable
Securities included in the applicable Shelf Registration Statement. The Company
shall use its reasonable best efforts to keep such Shelf Registration Statement
continuously effective for a period of 270 days following the effective date
thereof, or such shorter period ending on the earlier of (i) when all
Registrable Securities covered by such Registration Statement have been sold or
(ii) if none of the Holders of Registrable Securities included in such
Registration Statement are Affiliates of the Company, the first date when all
Registrable Securities covered by the Registration Statement may be immediately
sold without registration under the Securities Act pursuant to the exemptions
provided by Rule 144 under the Securities Act and without restriction under Rule
144(k), subject to the provisions of Article IV hereof.
Section 2.3 Limitation on Demand Registration. The Company shall be
obligated to effect no more than three (3) Demand Registration Statements for
each Holder of the Registrable
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Securities. For purposes of the preceding sentence, a Demand Registration
Statement shall not be deemed to have been effected as to a Holder's Registrable
Securities (a) unless a registration statement with respect thereto has become
effective, (b) if after such registration statement has become effective, such
registration or the related offer, sale or distribution of such Holder's
Registrable Securities thereunder is interfered with by any stop order,
injunction or other order or requirement of the Commission or other governmental
agency or court for any reason not attributable to such Selling Holder and such
interference is not thereafter eliminated, or (c) if the conditions to closing
specified in any underwriting agreement containing usual and customary terms
entered into in connection with such registration are not satisfied or waived,
other than by reason of a failure on the part of such Selling Holder. The
Company's obligation to effect a given Demand Registration pursuant to Section
2.1 shall be deemed to have been satisfied upon the earlier of (i) the date as
of which all of the Registrable Securities included therein shall have been
sold, and (ii) the date as of which such Demand Registration Statement shall
have been continuously effective for a period of one year or such shorter period
as provided in Article IV.
Section 2.4 Manner of Sale. The Demanding Holder shall, in connection
with a Demand Registration Statement, be entitled, in his sole and absolute
discretion, to select the manner in which his Registrable Securities are sold,
including, but not limited to, the selection of underwriters or brokers through
whom such securities will be sold and the purchasers for such securities,
subject solely in the case of underwriters, to the Company's prior approval of
such underwriters or brokers, which approval shall not be unreasonably withheld
or delayed. In connection therewith, the Company shall take such actions as are
reasonably requested by such underwriters or brokers in order to facilitate the
registration and disposition of the Registrable Securities in accordance with
this Agreement, including, but not limited to, cooperating in the performance of
any reasonable due diligence investigation by a Holder or a Holder's
representative or any underwriter, including making available for inspection and
discussion, respectively, necessary corporate documents and records and company
personnel, subject to the receipt, where reasonably requested, of an executed
confidentiality agreement in a form reasonably satisfactory to the Company.
Section 2.5 Withdrawal. Any Holder participating in a registration
pursuant to this Agreement shall be permitted to withdraw all or part of its
Registrable Securities from such registration at any time (but not later than
two business days) prior to the effective date of the registration statement
covering such securities; provided that, in the event of a withdrawal from a
registration effected pursuant to Section 2.1 hereof, such registration shall be
deemed to have been effected for purposes of the first sentence of Section 2.3
hereof (subject to any otherwise applicable provisions in Section 2.3 hereof).
ARTICLE III
PIGGYBACK REGISTRATION STATEMENTS
Section 3.1 Piggyback Registration Statements. (a) If at any time the
Company proposes to register equity securities or securities convertible or
exchangeable into equity securities under the Securities Act in connection with
a public offering solely for cash (other than
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by a registration on Form S-4 or S-8 or any successor or similar forms or filed
in connection with an exchange offer or any offering of securities solely to the
Company's existing stockholders or otherwise pursuant to a dividend reinvestment
plan or a dividend reinvestment and stock purchase plan, and other than pursuant
to Article II), the Company shall promptly give each Holder of Registrable
Securities written notice of such proposed registration (a "Piggyback
Registration Statement"). Upon the written request of a Holder receiving such
notice given within 20 days following the date of such notice (which request
shall state the number of Registrable Securities to be registered and the
intended method of distribution of such Registrable Securities), the Company
shall cause to be included in such registration statement and use its reasonable
best efforts to have registered under the Securities Act all the Registrable
Securities that each such Holder shall have requested to be registered;
provided, however, that the Company shall have the right to postpone or withdraw
any registration (in its entirety) effected pursuant to this Section 3.1 without
obligation or liability to any Holder, subject to Section 3.1(b) hereof.
(b) If at any time after giving written notice of its intention
to register any of its securities pursuant to Section 3.1(a), and prior to the
effective date of the Piggyback Registration Statement filed in connection with
such Registration, the Company shall determine for any reason not to register or
to delay the Registration of such securities, the Company shall give written
notice of such determination to each Holder of Registrable Securities
contemplated to be included in such registration. If the Company shall elect not
to register such securities, the Company shall be relieved of its obligation to
register any Registrable Securities in connection therewith (but not from its
obligation, if any, to pay the Registration Expenses in connection therewith),
provided however, that in no event may the Company include in a Piggyback
Registration Statement the Registrable Securities of one requesting Holder and
exclude therefrom the Registrable Securities of the other requesting Holder,
unless the excluded Holder is not in compliance with the terms hereof. In the
event of an election by the Company not to register such securities, such
non-registration shall not count as an exercised piggyback registration right
pursuant to this Section 3.1 hereof.
(c) Until the fifth anniversary of the date hereof, each Holder
shall be entitled to have its Registrable Securities included in an unlimited
number of Piggyback Registration Statements pursuant to this Section 3.1.
Section 3.2 Priority in Registrations. (a) If the Company's offering
pursuant to which a Piggyback Registration Statement is proposed to be filed is
underwritten, the Holders shall sell the Registrable Securities to be sold
pursuant to such offering to or through the underwriter or underwriters of the
securities being registered for the account of the Company upon terms generally
comparable to the terms applicable to the Company and substantially identical to
those for the account of the other Holders, and if the lead underwriter
reasonably determines in writing to be provided to the Holders that the number
of securities included in the registration statement exceeds the number (the
"Saleable Number") that can be sold in an orderly fashion within a price range
reasonably acceptable to the Company, then the number of securities that the
Company and the Holders will be permitted to include in such Registration
Statement will be allocated as follows: (i) first, all the securities to be sold
by the Company for its own account pursuant to
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Section 3.1(a), and (ii) second, the difference between the Saleable Number and
the number, if any, to be included pursuant to clause (i) hereof, such amount to
be allocated among the Holders pro rata on the basis of the relative number of
Registrable Securities held by each of them.
(b) If as a result of the proration provisions of this Section
3.2, any Holder of Registrable Securities is not entitled to include all such
Registrable Securities in such registration (a "Cutback"), such Holder may, on
written notice to the Company given at least two business days prior to the
effective date of the applicable registration statement, elect to withdraw his,
her or its request to include any Registrable Securities in such registration (a
"Withdrawal Election"); provided, however, that a Withdrawal Election shall be
irrevocable and any Holder of Registrable Securities who has made a Withdrawal
Election shall no longer have any right to include any Registrable Securities in
the registration as to which such Withdrawal Election was made. The number of
securities required to satisfy any underwriters' overallotment option shall be
allocated pro rata among the Company and all Holders on the basis of the
relative number of securities otherwise to be included by each of them in the
registration.
ARTICLE IV
REGISTRATION PROCEDURES AND EXPENSES
Section 4.1 Registration Procedures. Whenever required under Article II
or Article III to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as practicable (but subject to the periods set
forth in Sections 2.1(a) and 2.2):
(a) Prepare and file with the Commission a registration
statement with respect to such Registrable Securities and use the Company's
reasonable best efforts to cause such registration statement to become
effective, in each instance giving due regard to the need to prepare current
financial statements, conduct due diligence and complete other actions that are
reasonably necessary to effect a registered public offering.
(b) Use the Company's reasonable best efforts to keep the
relevant Demand Registration Statement continuously effective for one year, or
Shelf Registration Statement continuously effective for 270 days, from the
effective date thereof or such shorter period ending on the earlier of (i) when
all Registrable Securities covered by such Registration Statement have been
sold, or (ii) if none of the Holders of Registrable Securities included in such
Registration Statement are Affiliates of the Company, the first date when all
Registrable Securities covered by the Registration Statement may be immediately
sold without registration under the Securities Act pursuant to the exemptions
provided by Rule 144 under the Securities Act, without restriction under Rule
144(k). As soon as reasonably practicable after the occurrence of any fact or
event that makes untrue any statement of a material fact made in the Shelf
Registration Statement or that requires the making of any additions to or
changes in the Shelf Registration Statement in order to make the statements
therein, in light of the circumstances in which they were made, not misleading,
the Company shall prepare and file a supplement or amendment to the Shelf
Registration Statement or related prospectus, or a document incorporated therein
by reference, so that such Shelf Registration Statement and related prospectus
shall not contain any
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such untrue statement of a material fact or any such omission of a material
fact; provided, however, that if the Board of Directors of the Company
determines, in its good faith reasonable judgment, that the Transfer of
Registrable Securities pursuant to the Shelf Registration Statement would
materially interfere with, or require the premature disclosure of, any
financing, acquisition or reorganization involving the Company or any of its
subsidiaries or otherwise would require premature disclosure of any other
material nonpublic information as to which the Company has a bona fide business
purpose for maintaining its confidentiality, then for so long as such
circumstances or such business purpose continues to exist (provided that, the
number of days of any such suspension may not exceed an aggregate of 120 days in
any 360-day period), the Company shall not be required to prepare or file any
such supplement, amendment or document.
(i) Each Holder agrees, by acquisition of a Registrable
Security, that, upon receipt of any notice from the Company of the existence of
any fact or event of the kind described in Section 2.1(b) or 4.1(b) (which
notice need not disclose the fact, event or information), such Holder will
forthwith discontinue the disposition of any Registrable Securities pursuant to
the Demand Registration Statement or Shelf Registration Statement, as the case
may be, until such Holder's receipt of the copies of a supplemented or amended
prospectus as contemplated by Section 4.1(b), or until it is advised in writing
by the Company that the use of the prospectus related to such Demand
Registration Statement or Shelf Registration Statement may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in such prospectus. If so directed by the Company, each Holder will
deliver to the Company all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Registrable Securities that
was current at the time of receipt of such notice. Any such notice or writing of
the Company, or prospectus supplement or amendment, shall be delivered
simultaneously to all Holders of Registrable Securities included in such
registration statement.
(ii) Notwithstanding the foregoing, if, in the case of a
Demand Registration Statement, the filing of a registration statement is
postponed as permitted by Section 2.1(b), or, in the case of a Shelf
Registration Statement, the preparation and filing of a supplement, amendment or
incorporated document is postponed as permitted by Section 4.1(b), or in the
case of a Piggyback Registration Statement, the filing of a registration
statement is postponed as permitted by Section 3.1(b), the five-year period for
filing a Demand Registration Statement or a Piggyback Registration Statement or
the 270-day period of effectiveness of the Shelf Registration Statement, as the
case may be, shall be extended by the aggregate number of days of such
postponement.
(c) Prepare and file with the Commission such amendments,
supplements or incorporated documents to such registration statement and the
prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement. If the
registration statement is for an underwritten offering, the Company shall amend
the registration statement or supplement the prospectus whenever required by the
terms of the underwriting agreement entered into pursuant to Section 4.1(f). In
the event that any Registrable Securities included in a registration statement
subject to, or required by, this Agreement remain
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unsold at the end of the period during which the Company is obligated to use its
reasonable best efforts to maintain the effectiveness of such registration
statement, the Company may file a post-effective amendment to the registration
statement for the purpose of removing such securities from registered status.
(d) Furnish to each Selling Holder of Registrable Securities
copies of the registration statement, any pre-effective or post-effective
amendment thereto, the prospectus, including each preliminary prospectus and any
amendments or supplements thereto, in each case in conformity with the
requirements of the Securities Act.
(e) Use the Company's reasonable best efforts (i) to register
and qualify the securities covered by such registration statement under the
securities or Blue Sky laws of such states or jurisdictions as shall be
reasonably requested by the Underwriters' Representative (or if inapplicable,
the Requisite Holders), and (ii) to obtain the withdrawal of any order
suspending the effectiveness of a registration statement, or the lifting of any
suspension of the qualification (or exemption from qualification) of the offer
and transfer of any of the Registrable Securities in any jurisdiction, at the
earliest practicable moment; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business, subject itself to taxation or to file a general consent to service of
process in any states or jurisdictions where it is not now so subject.
(f) In the event of a Demand Registration Statement, enter into
and perform the Company's obligations under an underwriting or agency agreement
(including indemnification and contribution obligations of underwriters or
agents), in usual and customary form, with the managing underwriter or
underwriters of or agents for such offering. The Company shall also cooperate
with the Requisite Holders and the Underwriters' Representative for such
offering in the marketing of the Registrable Securities, including making
reasonably available the Company's officers, accountants, counsel, premises, and
books and records for such purpose.
(g) Promptly notify each Selling Holder of any stop order
issued or threatened to be issued by the Commission in connection therewith (and
take all actions required to prevent the entry of such stop order or to remove
it if entered).
(h) Make generally available to the Company's security holders
an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act no later than 90 days following the end of the 12-month period
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of each registration statement filed pursuant to this
Agreement.
(i) Make reasonably available for inspection by any Selling
Holder, any underwriter participating in such offering and the representatives
of such Selling Holder and Underwriter, all financial and other information as
shall be reasonably requested by them, and provide each Selling Holder, any
underwriter participating in such offering and the
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representatives of such Selling Holder and Underwriter the opportunity to
discuss the business affairs of the Company with its principal executives and
independent public accountants who have certified the audited financial
statements included in such registration statement, in each case to the extent
necessary to enable them to exercise their due diligence responsibility under
the Securities Act; provided, however, that information that the Company
determines, in good faith, to be confidential and which the Company advises such
Person in writing, is confidential, shall not be disclosed unless such Person
signs a confidentiality agreement reasonably satisfactory to the Company.
(j) In the event of a Demand Registration Statement, use the
Company's reasonable best efforts to obtain a "comfort letter" from its
independent public accountants and legal opinions of counsel to the Company
addressed to each of the Selling Holders and each underwriter or agent, in
customary form and covering such matters of the type customarily covered by such
letters and in a form that shall be reasonably satisfactory to the Selling
Holders and the Underwriters' Representative. The Company shall furnish to each
Selling Holder and each underwriter or agent a signed counterpart of any such
comfort letter or legal opinion. Delivery of any comfort letter shall be subject
to the recipient furnishing such written representations or acknowledgments as
are customarily provided by selling stockholders, underwriters or agents who
receive such comfort letters under SAS No. 72. Nothing in the immediately
preceding sentence shall be deemed to require a Selling Holder, underwriter or
agent to make representations and warranties if the Selling Holder, underwriter
or agent is willing to receive a letter in the form to be provided to selling
stockholders, underwriters or agents not making representations and warranties
under SAS No. 76.
(k) 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.
(l) Use all reasonable efforts to cause the Registrable
Securities, if the Common Stock is then listed on a national securities exchange
or included for quotation in a recognized trading market, to continue to be so
listed or included to ensure that the Registrable Securities are freely
tradeable thereon.
(m) Provide a CUSIP number for all Registrable Securities
covered by such registration statement not later than the effective date of such
registration statement.
Section 4.2 Holders' Obligations. (a) Each Selling Holder shall:
(i) furnish to the Company such information regarding
such Selling Holder and its affiliates, the number of Registrable Securities
owned and proposed to be sold by it, the intended method of disposition of such
securities and any other information as shall be required to effect the
registration of such Selling Holder's Registrable Securities, and cooperate with
the Company in preparing such registration statement and in complying with the
requirements of the Securities Act;
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(ii) agree to sell its Registrable Securities to the
underwriters at the same price and on substantially the same terms and
conditions as the Company or the other Persons on whose behalf the registration
statement was being filed have agreed to sell their securities, and execute the
underwriting agreement agreed to by the Company and customary custody
arrangements, lock-up letters, indemnities, questionnaires and other documents
reasonably required by the underwriters or agents; provided, however, that the
lock-up period for each Selling Holder shall be the same.
(b) In the event that a Demand Registration Statement or a
Piggyback Registration Statement becomes effective, if and to the extent
requested by the managing underwriter or lead agent for the offering relating
thereto, no Holder shall offer, sell or agree to sell or otherwise dispose of or
transfer any Registrable Securities or securities convertible into or
exchangeable or exercisable for any Registrable Securities (other than, in the
case of the Selling Holders under the Demand Registration Statement or Piggyback
Registration Statement, pursuant to such Demand Registration Statement or
Piggyback Registration Statement, as the case may be), or exercise any right to
register any such securities, during the period commencing ten days prior to the
anticipated effective date of such registration statement and ending 90 days
from the effective date of such registration statement. In order to enforce the
foregoing agreement, the Company shall be entitled to impose stop-transfer
instructions with respect to the Registrable Securities of each Holder until the
end of such period.
(c) Each Selling Holder of Registrable Securities agrees that,
upon receipt of any notice from the Company of (i) any request by the Commission
for amendments or supplements to a Registration Statement or related prospectus
covering any of such Selling Holder's Registrable Securities, (ii) the issuance
by the Commission of any stop order suspending the effectiveness of a
registration statement covering any of such Selling Holder's Registrable
Securities or the initiation of any proceedings for that purpose, (iii) the
receipt by the Company of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (iv) the happening
of any event that requires the making of any changes in the registration
statement covering any of such Selling Holder's Registrable Securities so that
it will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that any related prospectus will not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading, and (v) the Company's good faith
reasonable determination that a post-effective amendment to a registration
statement covering any of such Selling Holder's Registrable Securities or a
supplement to any related prospectus is required under the Securities Act; such
Selling Holder will forthwith discontinue disposition of such Registrable
Securities until it is advised in writing by the Company that the use of the
applicable prospectus (as amended or supplemented, as the case may be) and
disposition of the Registrable Securities covered thereby pursuant thereto may
be resumed; provided, however, (x) that such Selling Holder shall not resume its
disposition of Registrable Securities pursuant to such registration statement or
related prospectus unless it has received notice from the Company that such
registration statement or amendment has become effective under the Securities
Act and
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has received a copy or copies of the related prospectus (as then amended or
supplemented, as the case may be) unless the Registrable Securities are then
listed on a national securities exchange and the Company has advised such
Selling Holder that the Company has delivered copies of the related prospectus,
as then amended or supplemented, in transactions effected upon such exchange,
subject to any subsequent receipt by such Selling Holder from the Company of
notice of any of the events contemplated by clauses (i) through (v) of this
paragraph, and (y) if so directed by the Company, such Selling Holder will
deliver to the Company all copies, other than permanent file copies then in such
Selling Holder's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice.
Section 4.3 Registration Expenses. Expenses in connection with
registrations pursuant to this Agreement shall be allocated and paid as follows:
(a) With respect to each Shelf Registration Statement and
Demand Registration Statement, the Company shall bear and pay all of the
Registration Expenses incurred in connection with the registration and offering
of Registrable Securities with respect to such Shelf Registration Statement or
Demand Registration Statement, as the case may be; provided, however, that the
Selling Holders shall pay (i) underwriting discounts and commissions relating to
the Registrable Securities sold by them pursuant to any such registration
statement and (ii) all fees and disbursements of any additional counsel not
required to be paid by the Company and any other advisors to the Selling
Holders.
(b) The Company shall bear and pay all Registration Expenses
incurred in connection with any Piggyback Registration Statements pursuant to
Article III, other than (i) underwriting discounts and commissions relating to
Registrable Securities, (ii) the portion of any filing fees allocable to the
Registrable Securities included in such registration by the Selling Holders, and
(iii) the fees and disbursements of any additional counsel not required to be
paid by the Company and other advisors to the Selling Holders (each of which
expenses in clauses (i) and (ii) shall be paid on a pro rata basis by the
Selling Holders of Registrable Securities included in such Piggyback
Registration Statement and which expenses in clause (iii) shall be paid on a pro
rata basis by the Selling Holders for which the expenses are incurred).
ARTICLE V
INDEMNIFICATION AND CONTRIBUTION
Section 5.1 Indemnification by the Company. If any Registrable
Securities are included in a registration statement under this Agreement, to the
extent permitted by applicable law, the Company shall indemnify and hold
harmless each Selling Holder, its directors, officers, shareholders, employees,
investment advisors, agents and Affiliates, either direct or indirect (and each
such Affiliate's directors, officers, shareholders, employees, investment
advisors and agents) and each other Person, if any, who controls such Selling
Holder (within the meaning of the Securities Act) against any and all losses,
claims, damages, liabilities and expenses, including attorneys' fees and
disbursements and expenses of investigation, incurred by such party pursuant to
any actual or threatened action, suit, proceeding or investigation, to which any
of the
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foregoing Persons may become subject under the Securities Act, the Exchange Act
or other federal or state laws, insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained
therein, or any amendments or supplements thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein not misleading (collectively, a
"Violation"); provided, however, that the indemnification required by this
Section 5.1 shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or expense if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld), nor
shall the Company be liable in any such case for any such loss, claim, damage,
liability or expense to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished to the Company by the indemnified party expressly for use
in connection with such registration.
Section 5.2 Indemnification by the Selling Holders. If any Registrable
Securities are included in a registration statement under this Agreement, to the
extent permitted by applicable law, each Selling Holder (severally and not
jointly) shall indemnify and hold harmless the Company, its directors, officers,
shareholders, employees, investment advisors, agents and Affiliates, either
direct or indirect (and each such Affiliate's directors, officers, shareholders,
employees, investment advisors and agents) and each other Person, if any, who
controls the Company within the meaning of the Securities Act, any other Selling
Holder and any controlling Person of any such other Selling Holder against any
and all losses, claims, damages, liabilities and expenses, including attorneys'
fees and disbursements and expenses of investigation, incurred by such party
pursuant to any actual or threatened action, suit, proceeding or investigation,
to which any of the foregoing Persons may otherwise become subject under the
Securities Act, the Exchange Act or other federal or state laws, insofar as such
losses, claims, damages, liabilities and expenses arise out of or are based upon
any Violation, in each case to the extent (and only to the extent) that such
Violation occurs in reliance upon and in conformity with written information
furnished by such Selling Holder expressly for use in connection with such
registration statement; provided, however, that (a) the indemnification required
by this Section 5.2 shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or expense if settlement is effected without the
consent of the relevant Selling Holder of Registrable Securities, which consent
shall not be unreasonably withheld, (b) in no event shall the amount of any
indemnity under this Section 5.2 and of the contribution obligation of a Selling
Holder under Section 5.4 exceed the net proceeds from the applicable offering
received by such Selling Holder, and (c) the obligation to provide
indemnification hereunder shall be several, and not joint and several, among the
indemnifying parties.
Section 5.3 Notice of Claims, etc. Promptly after receipt by an
indemnified party under this Article V of notice of the commencement of any
action, suit, proceeding, investigation or threat thereof made in writing for
which such indemnified party may make a claim under this Article V, such
indemnified party shall deliver to the indemnifying party a written notice of
the commencement thereof. The failure to deliver written notice to the
indemnifying party shall not relieve such indemnifying party of any liability to
the indemnified party under this Article V.
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Any fees and expenses incurred by the indemnified party (including any fees and
expenses incurred in connection with investigating or preparing to defend such
action or proceeding) shall be paid to the indemnified party, as incurred,
within thirty days of written notice thereof to the indemnifying party
(regardless of whether it is ultimately determined that an indemnified party is
not entitled to indemnification hereunder). Any such indemnified party shall
have the right to employ separate counsel in any such action, claim or
proceeding, and to participate in the defense thereof, but the fees and expenses
of such counsel shall be the expenses of such indemnified party unless (a) the
indemnifying party shall have failed to promptly assume the defense of such
action, claim or proceeding, or (b) the named parties to any such action, claim
or proceeding (including any impleaded parties) include both such indemnified
party and the indemnifying party, and such indemnified party shall have been
advised by its counsel that there may be one or more legal defenses available to
it which are different from or in addition to those available to the
indemnifying party and that the assertion of such defenses would create a
conflict of interest such that counsel employed by the indemnifying party could
not represent the indemnified party (in which case, if such indemnified party
notifies the indemnifying party in writing that it 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 action, claim or proceeding on
behalf of such indemnified party; it being understood, however, that the
indemnifying party shall not, in connection with any one such action, claim or
proceeding or separate but substantially similar or related actions, claims or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for all such indemnified parties, unless the indemnified party shall have
been advised by its counsel that a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
action, claim or proceeding such that the counsel could not represent the
indemnified party and any other of such indemnified parties, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels). No indemnifying party shall be liable to an
indemnified party for any settlement of any action, proceeding or claim without
the written consent of the indemnifying party, which consent shall not be
unreasonably withheld.
Section 5.4 Contribution. If the indemnification required by this
Article V from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to in this Article V:
(a) The indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether any Violation has been committed by, or relates to
information supplied by, such indemnifying party or indemnified parties, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such Violation. The amount paid or payable by a party as a
result of the losses,
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claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 5.1 and Section 5.2,
any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
(b) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 5.4 were determined by pro
rata allocation or by any other method of allocation, which does not take into
account, the equitable considerations referred to in Section 5.4(a). 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.
Section 5.5 Survival. The obligations of the Company and the Selling
Holders of Registrable Securities under this Article V shall survive the
completion of any offering of Registrable Securities pursuant to a registration
statement under this Agreement.
ARTICLE VI
RULE 144 AND RULE 144A
Section 6.1 Reports, etc. The Company will file the reports required to
be filed by it under the Securities Act and the Exchange Act and the rules and
regulations promulgated by the Commission thereunder and will take such further
action as any Holder may reasonably request, to the extent required from time to
time to enable the Holder to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by (a)
Rule 144, (b) Rule 144A, or (c) any similar rule or regulation hereafter adopted
by the Commission. Upon the request of any Holder, the Company will deliver to
that Holder a written statement as to whether it has complied with such
requirements, a copy of the most recent annual or quarterly report of the
Company, and such other reports or documents so filed as a Holder may reasonably
request in availing itself of any rule or regulation of the Commission allowing
a Holder to sell any such securities without registration.
Section 6.2 Rule 144 Information. If at any time the Company is not
required to file reports in compliance with either Section 13 or Section 15(d)
of the Exchange Act, the Company at its expense will, forthwith upon the request
of any Holder, make available adequate current public information with respect
to the Company within the meaning of paragraph (c)(2) of Rule 144.
Section 6.3 Rule 144A Information. If at any time the Company is not
required to file reports in compliance with either Section 13 or Section 15(d)
of the Exchange Act, the Company at its expense will, forthwith upon the request
of any Holder or prospective purchaser, provide to the Holder and any
prospective purchaser reasonably current information with respect to the Company
within the meaning of paragraph (d)(4) of Rule 144A.
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ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendment, Modification and Waivers; Further Assurances.
(a) This Agreement may be amended with the consent of the Company, and the
Company may amend this Agreement or take any action herein prohibited, or omit
to perform any act herein required to be performed by it, only if the Company
shall have obtained the written consent to such amendment, action or omission to
act of Holders owning all of the Registrable Securities then outstanding.
(b) No waiver of any terms or conditions of this Agreement
shall operate as a waiver of any other breach of such terms and conditions or
any other term or condition, nor shall any failure to enforce any provision
hereof operate as a waiver of such provision or of any other provision hereof.
No written waiver hereunder, unless it by its own terms explicitly provides to
the contrary, shall be construed to effect a continuing waiver of the provisions
being waived, and no such waiver in any instance shall constitute a waiver in
any other instance or for any other purpose or impair the right of the party
against whom such waiver is claimed in all other instances or for all other
purposes to require full compliance with such provision.
(c) Each of the parties hereto shall execute all such further
instruments and documents and take all such further action as any other party
hereto may reasonably require in order to effectuate the terms and purposes of
this Agreement.
Section 7.2 Assignment. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties and their respective
successors and permitted assigns of Registrable Securities. The rights and
obligations of a Holder under this Agreement may collectively be transferred or
assigned (in whole or in part) to one or more Persons who is a transferee of
Registrable Securities; provided, however, that any such transferee of
Registrable Securities agrees in writing, in form and substance satisfactory to
the Company, to be bound by all of the terms and provisions hereof and to join
this Agreement as a party hereto; and provided, further, that no such assignment
of rights and obligations shall be effective with respect to Registrable
Securities that, as a result of such transfer, have ceased to be Registrable
Securities by reason of the second sentence of the definition of Registrable
Securities set forth in Section 1.1 (such transferee, a "Permitted Transferee").
Section 7.3 Invalid Provisions. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under any present or future law,
(a) such provision will be fully severable, (b) this Agreement will be construed
and enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (c) the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal, invalid
or unenforceable provision or by its severance herefrom, and (d) in lieu of such
illegal, invalid or unenforceable provision, there will be added automatically
as a part of this Agreement a legal, valid and enforceable provision as similar
in terms to such illegal, invalid or unenforceable provision as may be possible.
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Section 7.4 Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner thereof may, at its election, be treated as the Holder of
such Registrable Securities for purposes of request or other action by any
Holder or Holders pursuant to this Agreement or any determination of any amount
of shares of Registrable Securities held by any Holder or Holders of Registrable
Securities contemplated by this Agreement. If the beneficial owner of any
Registrable Securities so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such Registrable
Securities. For purposes of this Agreement, "beneficial ownership" and
"beneficial owner" refer to beneficial ownership as defined in Rule 13d-3
(without regard to the 60-day provision in paragraph (d)(1)(i) thereof) under
the Exchange Act.
Section 7.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
Section 7.6 Notices. All notices and requests given pursuant to this
Agreement shall be in writing and shall be made by hand-delivery, first-class
mail (registered or certified, return receipt requested), confirmed facsimile or
overnight air courier guaranteeing next business day:
(a) If to the Company, to:
Financial Performance Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President and Chief Executive Officer
With a copy to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇ Marks & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
c/o Finacial Performance Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Winston & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile Number: 212-294-4700
If to ▇▇▇▇▇, to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
C/o Trump Management, Inc.
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
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Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & Grun, LLP
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Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇▇▇, to:
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LTS Capital Partners
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Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Facsimile Number: ▇▇▇ ▇▇▇-▇▇▇▇
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If to ▇▇▇▇, to:
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Facsimile Number: ______________
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Facsimile Number: ▇▇▇ ▇▇▇-▇▇▇▇
(b) If to a Permitted Transferee, to the address for such
Permitted Transferee set forth on Schedule 7.6, as may be amended from time to
time.
Except as otherwise provided in this Agreement, the date of each such notice and
request shall be deemed to be, and the date on which each such notice and
request shall be deemed given shall be: (i) at the time delivered, if personally
delivered or mailed; (ii) when receipt is acknowledged, if sent by facsimile;
and (iii) the next business day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next business day delivery.
Section 7.7 Entire Agreement; Integration. This Agreement supersedes
all prior agreements between or among any of the parties hereto with respect to
the registration of any securities of the Company, and any and all such
agreements are hereby deemed canceled and of no further force and effect and
this Agreement embodies the entire understanding among the parties relating to
such subject matter.
Section 7.8 Injunctive Relief. Each of the parties hereto acknowledges
that in the event of a breach by any of them of any material provision of this
Agreement, the aggrieved party may be without an adequate remedy at law. Each of
the parties therefore agrees that in the event of such a breach hereof the
aggrieved party may elect to institute and prosecute proceedings in any court of
competent jurisdiction to enforce specific performance or to enjoin the
continuing breach hereof. By seeking or obtaining any such relief, the aggrieved
party shall not be precluded from seeking or obtaining any other relief to which
it may be entitled.
Section 7.9 Section Headings. Section headings are for convenience of
reference only and shall not affect the meaning of any provision of this
Agreement,
Section 7.10 Counterparts. This Agreement maybe executed in any number
of counterparts, each of which shall be an original, and all of which shall
together constitute one and the same instrument. All signatures need not be on
the same counterpart.
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Section 7.11 Filing. A copy of this Agreement and of all amendments
thereto shall be filed at the principal executive office of the Company with the
Secretary of the Company.
Section 7.12 Termination. This Agreement may be terminated at any time
by a written instrument signed by the Company and all of the Holders of
Registrable Securities. Unless sooner terminated in accordance with the
immediately preceding sentence, the parties' obligations under this Agreement
(other than Articles V and VI hereof) shall terminate in their entirety on the
tenth anniversary of the date hereof.
Section 7.13 Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, the successful party shall be entitled
to recover reasonable attorneys' fees (including any fees incurred in any
appeal) in addition to its costs and expenses and any other available remedy.
Section 7.14 No Third Party Beneficiaries. Nothing herein expressed or
implied is intended to confer upon any Person, other than the parties hereto or
their respective permitted assigns, successors, heirs and legal representatives,
or any indemnified party hereunder, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Section 7.15 Requisite Holders. Each of the parties hereto agrees that
the Company may, in connection with the taking of any action permitted to be
taken hereunder with the consent or approval of the Requisite Holders of the
Registrable Securities, rely in good faith on a certificate from any such holder
or holders stating that it holds or is acting on behalf of a majority in
interest of the Registrable Securities.
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IN WITNESS WHEREOF, this Registration Rights Agreement has been duly
executed by the parties hereto as of the date first written above.
Finance Performance Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
Title:
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