Exhibit 10.1
FORM OF
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of December ___, 1996, between Xxxxxxx
International Group Inc., a Delaware corporation (the "Company"), and Hay Island
Holding Corporation, a Delaware corporation ("Hay").
WHEREAS, as of the date of this Agreement, Hay owns __________ shares of the
Company's Class B Common Stock, par value $0.01 per share (the "Class B Common
Stock");
WHEREAS, the Company is consummating on the date hereof underwritten public
offerings (the "Offerings") of __________ shares of the Company's Class A Common
Stock, par value $0.01 per share (the "Class A Common Stock" and together with
the Company's Class B Common Stock, the "Common Stock"); and
WHEREAS, the Board of Directors of the Company has authorized the officers of
the Company to execute and deliver this Agreement in the name and on behalf of
the Company;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties to this Agreement hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
"Holder" means Hay and any other person that owns Registrable Securities,
including their respective successors and assigns who acquire Registrable
Securities, directly or indirectly, from Hay or such other person. For purposes
of this Agreement, the Company may deem and treat the registered holder of a
Registrable Security as the Holder and absolute owner thereof, and the Company
shall not be affected by any notice to the contrary.
"Registrable Securities" means (a) the Class A Common Stock issuable upon
the conversion of the Class B Common Stock owned by Hay following the completion
of the Offerings, (b) any Class A Common Stock acquired by Hay in the open
market at a time when Hay is deemed to be an Affiliate (as such term is defined
under Rule 144 under the Securities Act) of the Company so long as (i) such
Common Stock has not been transferred by Hay to a person that is not a Permitted
Transferee (as such term is defined in the Certificate of Incorporation of the
Company) and (ii) Hay or such Permitted Transferee continues to be deemed an
Affiliate of the Company, and (c) any securities issued or issuable in respect
of the Class A Common Stock or Class B Common Stock referred to in clauses (a)
and (b) above, by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization,
reclassification, merger or consolidation, and any other securities issued
pursuant to any other pro rata distribution with respect to such Common Stock.
For purposes of this Agreement, a Registrable Security ceases to be a
Registrable Security when (x) it has been effectively registered under the
Securities Act and sold or distributed to the public in accordance with an
effective registration statement covering it (and has not been reacquired in the
manner described in clause (b) above), or (y) it is sold or distributed to the
public pursuant to Rule 144 (or any successor or similar provision) under the
Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
2. Demand Registration. (a) Subject to Section 5 hereof, if at any time
any Holder shall request the Company in writing to register under the Securities
Act all or a part of the Registrable Securities held by such Holder (a "Demand
Registration"), the Company shall use all reasonable efforts to cause to be
filed and declared effective as soon as reasonably practicable (but in no event
later than the 45th day after such Holder's request is made) a registration
statement, on such appropriate form as the Company in its discretion shall
determine, providing for the sale of all such Registrable Securities by such
Holder. The Company agrees to use its reasonable efforts to keep any such
registration statement continuously effective and usable for resale of
Registrable Securities for so long as the Holder whose Registrable Securities
are included therein shall request. The Company shall be obligated to file
registration statements pursuant to this Section 2(a) until all Registrable
Securities have ceased to be Registrable Securities. Each registration statement
filed pursuant to this Section 2(a) is hereinafter referred to as a "Demand
Registration Statement."
(b) The Company agrees(i), unless it obtains the prior written
consent of Hay, not to effect any public or private sale, distribution or
purchase of any of its securities which are the same as or similar to the
Registrable Securities, including a sale pursuant to Regulation D under the
Securities Act, during the 15-day period prior to, and during the 45-day period
beginning on, the closing date of each underwritten offering under any Demand
Registration Statement, and (ii) to use reasonable efforts to cause each holder
of its securities purchased from the Company, at any time on or after the date
of this Agreement (other than in a registered public offering) to agree not to
effect any public sale or distribution of any such securities during such
period, including a sale pursuant to Rule 144 under the Securities Act.
(c) The Company may postpone for a reasonable period of time, not to
exceed 60 days, the filing or the effectiveness of any Demand Registration
Statement if the Board of Directors of the Company in good faith determines that
(A) such registration might have a material adverse effect on any plan or
proposal by the Company with respect to any financing, acquisition,
recapitalization, reorganization or
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other material transaction, or (B) the Company is in possession of material
non-public information that, if publicly disclosed, could result in a material
disruption of a major corporate development or transaction then pending or in
progress or in other material adverse consequences to the Company.
(d) If at any time any Holder of Registrable Securities to be covered
by a Demand Registration Statement desires to sell Registrable Securities in an
underwritten offering, such Holder shall have the right to select any nationally
recognized investment banking firm(s) to administer the offering, subject to the
approval of the Company, which approval shall not be unreasonably withheld, and
the Company shall enter into underwriting agreements with the underwriter(s) of
such offering, which agreements shall contain such representations and
warranties by the Company, and such other terms, conditions and indemnities as
are at the time customarily contained in underwriting agreements for similar
offerings.
3. Incidental Registration. Subject to Section 5 hereof and the other
terms and conditions set forth in this Section 3, if the Company proposes at any
time to register any shares of Class A Common Stock (the "Initially Proposed
Shares") under the Securities Act for sale, whether or not for its own account,
pursuant to an underwritten offering, the Company will promptly give written
notice to the Holders of its intention to effect such registration (such notice
to specify, among other things, the proposed offering price, the kind and number
of securities proposed to be registered and the distribution arrangements,
including identification of the underwriter(s)), and the Holders shall be
entitled to include in such registration statement, as a part of such
underwritten offering, such number of shares (the "Holder Shares") to be sold
for the account of the Holders (on the same terms and conditions as the
Initially Proposed Shares) as shall be specified in a request in writing
delivered to the Company within 15 days after the date upon which the Company
gave the aforementioned notice.
The Company's obligations to include Holder Shares in a registration
statement pursuant to this Section 3 is subject to each of the following
limitations, conditions and qualifications:
(a) If, at any time after giving written notice of its intention to
effect a registration of any of its shares of Common Stock and prior to the
effective date of any registration statement filed in connection with such
registration, the Company shall determine for any reason not to register all of
such shares, the Company may, at its election, give written notice of such
determination to the Holders and thereupon it shall be relieved of its
obligation to use any efforts to register any Holder Shares in connection with
such aborted registration.
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(b) If, in the opinion of the managing underwriter(s) of such
offering, the distribution of all or a specified portion of the Holder Shares
would materially interfere with the registration and sale, in accordance with
the intended method thereof, of the Initially Proposed Shares, then the number
of Holder Shares to be included in such registration statement shall be reduced
to such number, if any, that, in the opinion of such managing underwriter(s),
can be included without such interference. If, as a result of the cutback
provisions of the preceding sentence, the Holders are not entitled to include
all of the Holder Shares in such registration, such Holders may elect to
withdraw their request to include Holder Shares in such registration (a
"Withdrawal Election").
If the Company shall so request in writing, each Holder agrees (i) not to
effect any public or private sale or distribution of any Registrable Securities
(other than the Holder Shares) during the 15-day period prior to and during the
45-day period beginning on, the closing date of any underwritten public offering
of shares of Common Stock made for the Company's own account and (ii) to waive
any Demand Registration right until 60 days after the above-mentioned closing
date.
4. Registration Procedures. (a) Whenever the Company is required to use
all reasonable efforts to effect the registration of any Registrable Securities
under the Securities Act pursuant to the terms and conditions of Section 2(a) or
3 (such Registrable Securities being hereinafter referred to as "Subject
Shares"), the Company will use all reasonable efforts to effect the registration
and sale of the Subject Shares in accordance with the intended method of
disposition thereof. Without limiting the generality of the foregoing, the
Company will as soon as practicable:
i) prepare and file with the SEC a registration statement with
respect to the Subject Shares in form and substance satisfactory to the Holders
of the Subject Shares, and use all reasonable efforts to cause such registration
statement to become effective as soon as possible;
ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the applicable period and to comply with the provisions of the Securities Act
with respect to the disposition of all Subject Shares and other securities
covered by such registration statement;
iii) furnish the Holders covered by such registration statement,
without charge, such number of conformed copies of such registration statement
and of each such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus included in such registration
statement (including each preliminary prospectus), such documents incorporated
by reference in such registration statement or prospectus, and such other
documents, as such Holders may reasonably request;
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iv) use all reasonable efforts to register or qualify the
Subject Shares covered by such registration statement under the securities or
blue sky laws of such jurisdictions as the managing underwriter(s) shall
reasonably recommend, and do any and all other acts and things which may be
reasonably necessary or advisable to enable the Holders to consummate the
disposition in such jurisdictions of the Subject Shares covered by such
registration statement, except that the Company shall not for any such purpose
be required to (A) qualify generally to do business as a foreign corporation in
any jurisdiction wherein it is not so qualified, (B) subject itself to taxation
in any jurisdiction wherein it is not so subject, or (C) consent to general
service of process in any such jurisdiction or otherwise take any action that
would subject it to the general jurisdiction of the courts of any jurisdiction
in which it is not so subject;
v) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the SEC;
vi) furnish, at the Company's expense, unlegended certificates
representing ownership of the securities being sold in such denominations as
shall be requested and instruct the transfer agent to release any stop transfer
orders with respect to the Subject Shares being sold;
vii) notify each Holder at any time when a prospectus relating
to the Subject Shares is required to be delivered under the Securities Act of
the happening of any event as a result of which the prospectus included in such
registration statement 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 or any preliminary prospectus, in light of the circumstances
under which they were made) not misleading, and the Company will, as promptly as
practicable thereafter, prepare and file with the SEC and furnish a supplement
or amendment to such prospectus so that, as thereafter delivered to the
purchasers of Subject Shares such prospectus will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
viii) enter into customary agreements (including an underwriting
agreement in customary form in the case of an underwritten offering) and make
such representations and warranties to the sellers and underwriter(s) as in form
and substance and scope are customarily made by issuers to underwriters in
underwritten offerings and take such other actions as the Holders or the
managing underwriter(s) or agent, if any, reasonably require to expedite or
facilitate the disposition of such Subject Shares;
ix) make available for inspection by the Holders, any
underwriter or agent participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other similar
professional advisor retained by any such
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holders or underwriter (collectively the "Inspectors"), all pertinent financial
and other records, pertinent corporate documents and properties of the Company
(collectively, the "Records"), as shall be reasonably necessary to enable them
to exercise their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all information reasonably requested
by any such Inspector in connection with such registration statement. The
Holders agree that Records and other information which the Company determines,
in good faith, to be confidential and of which determination the Inspectors are
so notified shall not be disclosed by the Inspectors unless (i) the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in
the registration statement, (ii) the release of such Records is ordered pursuant
to a subpoena, court order or regulatory or agency request or (iii) the
information in such Records has been generally disseminated to the public. Each
Holder agrees that it will, upon learning that disclosure of such Record is
sought in a court of competent jurisdiction or by any governmental agency, give
notice to the Company and allow the Company, at the Company's expense, to
undertake appropriate action to prevent disclosure of the Records deemed
confidential;
x) obtain for delivery to the Company, the underwriter(s) or
their agent, with copies to the Holders, 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 Holders
or the managing underwriter(s) reasonably request;
xi) obtain for delivery to the Holders and the underwriter(s) or
their agent an opinion or opinions from counsel for the Company in customary
form and reasonably satisfactory to the Holder, underwriters or agents and their
counsel;
xii) make available to its security holders earnings statements,
which need not be audited, satisfying the provisions of Section 11(a) of the
Securities Act no later than 90 days after the end of the 12-month period
beginning with the first month of the Company's first quarter commencing after
the effective date of the registration statement, which earnings statements
shall cover said 12-month period;
xiii) make every reasonable effort to prevent the issuance of
any stop order suspending the effectiveness of the registration statement or of
any order preventing or suspending the effectiveness of such registration
statement at the earliest possible moment;
xiv) cause the Subject Shares to be registered with or
approved by such other governmental agencies or authorities within the United
States as may be necessary to enable the sellers thereof or the underwriters(s),
if any, to consummate the disposition of such Subject Shares;
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xv) cooperate with the Holders and the managing
underwriter(s), if any, or any other interested party (including any interested
broker-dealer) in making any filings or submission required to be made, and the
furnishing of all appropriate information in connection therewith, with the
National Association of Securities Dealers, Inc. ("NASD");
xvi) cause its subsidiaries to take action necessary to effect
the registration of the Subject Shares contemplated hereby, including filing any
required financial information;
xvii) effect the listing of the Subject Shares on the New York
Stock Exchange or such other national securities exchange or over-the-counter
market on which shares of the Class A Common Stock shall then be listed; and
(xviii) take all other steps necessary to effect the registration
of the Subject Shares contemplated hereby.
(b) The Holders shall provide (in writing and signed by the Holders
and stated to be specifically for use in the related registration statement,
preliminary prospectus, prospectus or other document incident thereto) all such
information and materials and take all such action as may be required to permit
the Company to comply with all applicable requirements of the SEC and any
applicable state securities laws and to obtain any desired acceleration of the
effective date of any registration statement prepared and filed by the Company
pursuant to this Agreement.
(c) The Holders shall, if requested by the Company or the managing
underwriter(s) in connection with any proposed registration and distribution
pursuant to this Agreement, (i) agree to sell the Subject Shares on the basis
provided in any underwriting arrangements entered into in connection therewith
and (ii) complete and execute all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents customary in similar
offerings.
(d) Upon receipt of any notice from the Company that the Company has
become aware that the prospectus (including any preliminary prospectus) included
in any registration statement filed pursuant to Section 2(a) or 3, as then in
effect, contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, the Holders shall forthwith discontinue disposition of
Subject Shares pursuant to the registration statement covering the same until
the Holders" receipt of copies of a supplemented or amended prospectus and, if
so directed by the Company, deliver to the Company (at the Company's expense)
all copies other than permanent file copies then in the Holder's possession, of
the prospectus covering the Subject Shares that was in effect prior to such
amendment or supplement.
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(e) The Company shall pay all out-of-pocket expenses incurred in
connection with any registration statement filed pursuant to Section 2(a) or
Section 3 of this Agreement, including, without limitation, all SEC and blue sky
registration and filing fees (including NASD fees), printing expenses, transfer
agents and registrars' fees, fees and disbursements of the Company's counsel and
accountants and fees and disbursements of experts used by the Company in
connection with such registration statement. Notwithstanding the foregoing, the
Holders shall pay all underwriting discounts, commissions and expenses
attributable to the Subject Shares sold pursuant to any such registration
statement.
(f) In connection with any sale of Subject Shares that are registered
pursuant to this Agreement, the Company and the Holders shall enter into an
agreement providing for indemnification of the Holders by the Company, and
indemnification of the Company by the Holders, on terms customary for such
agreements at that time (it being understood that any disputes arising as to
what is customary shall be resolved by counsel to the underwriter(s)).
5. Condition to Company's Obligations. Not-withstanding any other
provision in this Agreement to the contrary, the Company shall have no
obligation to effect any registration of Registrable Securities pursuant to this
Agreement within 180 days of the date of the prospectus for the Offerings,
unless Xxxxxxx Xxxxx & Co. shall have given its prior written consent to such
filing.
6. Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be effective (a) upon hand
delivery or delivery by telex (with correct answerback received), telecopy or
facsimile at the address or number designated below (if delivered on a business
day during normal business hours where such notice is to be received), or the
first business day following such delivery (if delivered other than on a
business day during normal business hours where such notice is to be received)
or (b) on the third business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual
service, fully prepaid, addressed to such address, or upon actual receipt of
such mailing, whichever shall first occur. The addresses for such communications
shall be:
If to the Company, to:
Xxxxxxx International Group Inc.
000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: President
Telecopy: (000) 000-0000
If to Hay, to:
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Xxxxxxx Xxxxxxx, III
Hay Island Holding Corporation
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
and
Xxxxxxx X. Xxxxxxx
Hay Island Holding Corporation
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
If to any other Holder, to such name at such address as such Holder shall
have indicated in a written notice delivered to the other parties to this
Agreement.
Any party hereto may from time to time change its address for notices under this
Section 6 by giving at least 10 days' notice of such changes to the other
parties hereto.
7. Waivers. No waiver by any party of any default with respect to any
provision, condition or requirement hereof shall be deemed to be a continuing
waiver in the future thereof or a waiver of any other provision, condition or
requirement hereof; nor shall any delay or omission of any party to exercise any
right hereunder in any manner impair the exercise of any such right accruing to
it thereafter.
8. Headings. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
9. Successors and Assigns; Amendments. This Agreement shall be binding
upon and inure to the benefit of the parties and their successors and assigns,
including without limitation and without the need for an express assignment each
subsequent Holder of any Registrable Securities. Except as provided in this
Section 9, neither the Company nor any Holder shall assign this Agreement or any
rights hereunder without the prior written consent of the other parties hereto.
The assignment by a party of this Agreement or any rights hereunder shall not
affect the obligations of such party hereunder. This Agreement may not be
amended except by a written instrument executed by the parties hereto.
10. No Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
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11. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the internal laws of the State of Delaware without
regard to the principles of conflicts of laws.
The parties hereto have caused this Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the day and year
first above written.
XXXXXXX INTERNATIONAL GROUP INC.
By ___________________________
Name:
Title:
HAY ISLAND HOLDING CORPORATION
By ______________________________
Name:
Title:
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