EXHIBIT 10.90
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REGISTRATION RIGHTS AGREEMENT
by and among
XXXXXX VENTURES, LLC,
CANADA PENSION PLAN IVESTMENT BOARD,
COMERICA CAPITAL ADVISORS INCORPORATED,
DRESDNER KLEINWORT CAPITAL PARTNERS 2001 LP,
MASCO CAPITAL CORPORATION,
MESIROW CAPITAL PARTNERS VIII, L.P.,
ML IBK POSITIONS, INC.,
and
XXXXXXX & XXXXXX CORPORATION
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Dated: December 20, 2001
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS
1.1 Definitions........................................................................................1
ARTICLE II
GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT
2.1 Grant of Rights....................................................................................4
2.2 Registrable Securities.............................................................................4
2.3 Holders of Registrable Securities..................................................................5
ARTICLE III
[RESERVED]
ARTICLE IV
INCIDENTAL OR "PIGGY-BACK" REGISTRATION
4.1 Request for Incidental Registration................................................................5
4.2 Expenses...........................................................................................7
ARTICLE V
HOLDBACK AGREEMENTS
5.1 Restrictions on Public Sale by Designated Holders..................................................7
5.2 Restrictions on Public Sale by the Company.........................................................7
ARTICLE VI
REGISTRATION PROCEDURES
6.1 Obligations of the Company.........................................................................8
6.2 Seller Information................................................................................11
6.3 Notice to Discontinue.............................................................................12
6.4 Registration Expenses.............................................................................12
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ARTICLE VII
INDEMNIFICATION; CONTRIBUTION
7.1 Indemnification by the Company....................................................................13
7.2 Indemnification by Investors......................................................................14
7.3 Conduct of Indemnification Proceedings............................................................14
7.4 Contribution......................................................................................15
ARTICLE VIII
COVENANTS
8.1 Rule 144..........................................................................................16
8.2 Xxxxxxxxxxx and Blackstone Priority of Sale.......................................................16
ARTICLE IX
MISCELLANEOUS
9.1 Recapitalizations, Exchanges, etc.................................................................17
9.2 No Inconsistent Agreements........................................................................17
9.3 Remedies..........................................................................................18
9.4 Notices...........................................................................................18
9.5 Successors and Assigns; Third Party Beneficiaries.................................................19
9.6 Amendments and Waivers............................................................................20
9.7 Counterparts......................................................................................20
9.8 Headings..........................................................................................20
9.9 GOVERNING LAW.....................................................................................20
9.10 Severability......................................................................................20
9.11 Rules of Construction.............................................................................20
9.12 Entire Agreement..................................................................................20
9.13 Further Assurances................................................................................21
9.14 Other Agreements..................................................................................21
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated December 20, 2001, by and
among Xxxxxxx & Xxxxxx Corporation, a Delaware corporation (the "Company"), and
Xxxxxx Ventures, LLC, Canada Pension Plan Investment Board, Comerica Capital
Advisors Incorporated, Dresdner Kleinwort Capital Partners 2001 LP, Masco
Capital Corporation, Mesirow Capital Partners VIII, L.P. and ML IBK Positions,
Inc. (collectively, the "Investors").
WHEREAS, pursuant to the Subscription Agreements (the
"Subscription Agreements"), each dated December 11, 2001, by and between the
Company and an Investor, the Company is selling the shares, par value $0.01 per
share, of common stock (the "Common Stock") of the Company identified therein;
WHEREAS, in order to induce each of the Investors to purchase
its shares of Common Stock as provided in the Subscription Agreements described
above, the Company has agreed to grant registration rights with respect to the
Registrable Securities (as hereinafter defined) as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, and unless the
context requires a different meaning, the following terms have the meanings
indicated:
"Agreement" means this Agreement as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"Xxxxxx Investors" has the meaning set forth in the Second
Rights Agreement as such term is defined therein on the date of this Agreement.
"Blackstone Holders" has the meaning set forth in the Existing
Registration Rights Agreement as such term is defined therein on the date of
this Agreement.
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"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in the State of New York are authorized or
required by law or executive order to close.
"Commission" means the Securities and Exchange Commission or
any similar agency then having jurisdiction to enforce the Securities Act.
"Common Stock" has the meaning set forth in the preamble to
this Agreement or any other capital stock of the Company into which such stock
is reclassified or reconstituted and any other common stock of the Company.
"Company" has the meaning set forth in the preamble to this
Agreement and shall mean any successor thereto that has issued securities in
exchange for any Common Stock in connection with any merger or consolidation in
which securities of the Company are converted or exchanged, in whole or in part,
into such securities.
"Company Offering" has the meaning set forth in Section 4.1.
"Company Underwriter" has the meaning set forth in Section
4.1.
"Demand Registration" has the meaning set forth in Section 3.1
of the Existing Registration Rights Agreement, the Second Registration Rights
Agreement and the Textron Rights Agreement.
"Designated Holder" means each of the Investors and any
transferee of any of them to whom Registrable Securities have been transferred
in accordance with Section 9.5, other than a transferee to whom Registrable
Securities have been transferred pursuant to a Registration Statement under the
Securities Act or Rule 144 or Regulation S under the Securities Act (or any
successor rule thereto).
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Commission thereunder.
"Existing Registration Rights Agreement" means the
Registration Rights Agreement dated February 23, 2001 among Blackstone Capital
Company II, L.L.C., Heartland Industrial Partners, L.P. and the other named
Heartland Entities, Xxxxxxxxxxx/C&A Holdings, L.L.C. and the Company, as
amended, modified or supplemented in accordance with its terms to the extent any
such amendment, modification or supplement does not affect the rights or
priorities of the Investors hereunder in an adverse manner.
"Holder's Counsel" has the meaning set forth in Section
6.1(a).
"Incidental Registration" has the meaning set forth in Section
4.1.
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"Indemnified Party" has the meaning set forth in Section 7.3.
"Indemnifying Party" has the meaning set forth in Section 7.3.
"Inspector" has the meaning set forth in Section 6.1(g).
"Investors" has the meaning set forth in the preamble to this
Agreement and shall include any transferee of any of them to whom Registrable
Securities have been transferred in accordance with Section 9.5, other than a
transferee to whom Registrable Securities have been transferred pursuant to a
Registration Statement under the Securities Act or Rule 144 or Regulation S
under the Securities Act (or any successor rule thereto).
"Xxxx Investors" has the meaning set forth in the Second
Rights Agreement as such term is defined therein on the date of the Purchase
Agreement (other than immaterial changes to related persons, such as trusts and
family members, made prior to the date hereof, in the "Permitted Transferee"
definition in the Second Rights Agreement).
"Liability" has the meaning set forth in Section 7.1.
"Majority of Investors" means the Investors holding a majority
of the Registrable Securities held by all Investors.
"NASD" means the National Association of Securities Dealers,
Inc.
"Non-Designated Stockholder" has the meaning set forth in
Section 4.1.
"Non-Designated Stockholder Offering" has the meaning set
forth in Section 4.1.
"Person" means any individual, firm, corporation, partnership,
trust, incorporated or unincorporated association, joint venture, joint stock
company, limited liability company, government (or an agency or political
subdivision thereof) or other entity of any kind, and shall include any
successor (by merger or otherwise) of such entity.
"Purchase Agreement" means the Purchase Agreement dated August
7, 2001 among the Company, Textron Inc. and Xxxxxxx & Xxxxxx Products Co., as
the same may be amended, modified or waived from time to time.
"Records" has the meaning set forth in Section 6.1(g).
"Registrable Securities" means, subject to Section 2.2, each
of the following: (a) any and all shares of Common Stock acquired by the
Investors and originally issued pursuant to the Subscription Agreements and (b)
any securities issued or issuable to any Investor
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with respect to the Registrable Securities by way of stock dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise and any securities issuable
upon conversion, exercise or exchange thereof.
"Registration Expenses" has the meaning set forth in Section
6.4.
"Registration Statement" means a registration statement filed
pursuant to the Securities Act.
"Second Rights Agreement" means the Registration Rights
Agreement dated July 3, 2001 among the Xxxxxx Investors, the Xxxx Investors and
the Company, as amended, modified or supplemented in accordance with its terms
to the extent any such amendment, modification or supplement does not affect the
rights or priorities of the Investors hereunder in an adverse manner.
"Securities Act" means the United States Securities Act of
1933, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Textron Investors" has the meaning set forth in the Textron
Rights Agreement as such term is defined therein on the date of this Agreement.
"Textron Rights Agreement" means the Registration Rights
Agreement dated the date hereof among the Textron Investors and the Company, as
amended, modified or supplemented in accordance with its terms to the extent any
such amendment, modification or supplement does not affect the rights or
priorities of the Investors hereunder in an adverse manner.
"Xxxxxxxxxxx Holders" has the meaning set forth in the
Existing Registration Rights Agreement as such term is defined therein on the
date of this Agreement.
ARTICLE II
GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT
2.1 Grant of Rights. The Company hereby grants registration
rights to the Designated Holders upon the terms and conditions set forth in this
Agreement.
2.2 Registrable Securities. For the purposes of this
Agreement, Registrable Securities will cease to be Registrable Securities, when
(i) a Registration Statement covering such securities has been declared
effective under the Securities Act by the Commission and
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such securities have been disposed of pursuant to such effective Registration
Statement or (ii) with respect to a Designated Holder, the entire amount of such
Designated Holder's Registrable Securities may be sold in a single sale, in the
opinion of counsel reasonably satisfactory to the Company and such Designated
Holder, each in their reasonable judgment, without any limitation as to volume
pursuant to Rule 144 (or any successor provision then in effect) under the
Securities Act
2.3 Holders of Registrable Securities. A Person is deemed to
be a holder of Registrable Securities whenever such Person owns of record
Registrable Securities, or holds an option to purchase, or a security
convertible into or exercisable or exchangeable for, Registrable Securities,
whether or not such acquisition or conversion has actually been effected. If the
Company receives conflicting instructions, notices or elections from two or more
Persons with respect to the same Registrable Securities, the Company may act
upon the basis of the instructions, notice or election received from the
registered owner of such Registrable Securities. Registrable Securities issuable
upon exercise of an option or upon conversion of another security shall be
deemed outstanding for the purposes of this Agreement.
ARTICLE III
[RESERVED]
ARTICLE IV
INCIDENTAL OR "PIGGY-BACK" REGISTRATION
4.1 Request for Incidental Registration. If the Company
proposes to file a Registration Statement under the Securities Act with respect
to an offering of Common Stock by the Company for its own account (other than a
Registration Statement on Form S-4 or S-8 or any successor thereto or in
connection with an offering made exclusively to stockholders of the Company
generally) (a "Company Offering") or for the account of any stockholder of the
Company other than the Investors (each such Stockholder, a "Non-Designated
Stockholder" and such offering a "Non-Designated Stockholder Offering"), then
the Company shall give written notice of such proposed filing to each of the
Investors at least ten (10) Business Days before the anticipated filing date,
and such notice shall describe the proposed registration and distribution and
offer such Investors the opportunity to register the number of Registrable
Securities held by such Investor as each such Investor may request (an
"Incidental Registration"). The Company shall use its reasonable best efforts to
cause the managing
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underwriter or underwriters in the case of a proposed underwritten offering (the
"Company Underwriter") to permit each of the Investors who have requested in
writing to participate in the Incidental Registration to include its or his
Registrable Securities in such offering on the same terms and conditions as the
securities of the Company or the securities of such Non-Designated Stockholders,
as the case may be, included therein. In connection with any Incidental
Registration under this Section 4.1 involving an underwritten offering, the
Company shall not be required to include any Registrable Securities in such
underwritten offering unless the Investors thereof accept the terms of the
underwritten offering as agreed upon between the Company, such Non-Designated
Stockholders, if any, and the Company Underwriter (including execution of an
escrow agreement and/or a power of attorney with respect to the disposition of
the Registrable Securities), and then, subject to this Section 4.1, only in such
quantity as the Company Underwriter believes will not jeopardize the success of
such offering. If the Company Underwriter determines that the registration of
all or part of the Registrable Securities which the Investors have requested to
be included would materially adversely affect the success of such offering, then
the Company shall be required to include in such Incidental Registration the
Registrable Securities only to the extent of the amount of Registrable
Securities that the Company Underwriter believes may be sold without causing
such material adverse effect, (i) in the case of a Company Offering: first, all
of the securities to be offered for the account of the Company; second, any
securities to be offered for the account of Blackstone Holders and Xxxxxxxxxxx
Holders as required by the Existing Registration Rights Agreement (as such
requirements are in effect on the date hereof) based on the requirements of the
Existing Registration Rights Agreement (as such requirements are in effect on
the date hereof); third, any securities to be offered for the account of the
Xxxxxx Investors, the Xxxx Investors or the Textron Investors based on the
requirements of the Second Rights Agreement and Textron Rights Agreement;
fourth, any shares of Common Stock owned by Heartland Industrial Partners, L.P.
and its Affiliates and transferees and any Registrable Securities owned by the
Investors pro rata based on the number of such securities then owned by each;
and fifth, any securities to be offered for the account of any other Person; and
(ii) in the case of a Non-Designated Stockholder Offering: first, the securities
to be offered for the account of Blackstone Holders and Xxxxxxxxxxx Holders
based on the requirements of the Existing Registration Rights Agreement (as such
requirements are in effect on the date hereof); second, all of the securities to
be offered by such Persons as are exercising demand registration rights (other
than Heartland Industrial Partners, L.P. and its Affiliates) and all of the
securities of the Textron Investors in respect of their rights, if any, as
"Priority Holders" under the Second Rights Agreement based on the requirements
of the Existing Registration Rights Agreement, the Second Rights Agreement and
the Textron Rights Agreement (as such requirements are in effect on the date
hereof); third, all of the securities to be offered for the account of the
Company; fourth, any securities requested to be included in such offering by the
Textron Investors, the Xxxxxx Investors or the Xxxx Investors based on the
requirements of the Second Rights Agreement and the Textron Rights Agreement (as
such requirements are in effect on the date hereof); and fifth, any shares of
Common Stock owned by
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Heartland Industrial Partners, L.P. and its Affiliates and any Registrable
Securities owned by the Investors pro rata based on the number of such
securities then owned by each. Nothing in this Section 4.1 shall create any
liability on the part of the Company or any other person to the Investors if the
Company, for any reason, decides not to file a Registration Statement proposed
to be filed pursuant to this Section 4.1 or to withdraw such Registration
Statement subsequent to its filing, regardless of any action whatsoever that an
Investor may have taken, whether as a result of the issuance by the Company of
any notice under this Section 4.1 or otherwise.
4.2 Expenses. The Company shall bear all Registration Expenses
in connection with any Incidental Registration pursuant to this Article IV,
whether or not such Incidental Registration becomes effective.
ARTICLE V
HOLDBACK AGREEMENTS
5.1 Restrictions on Public Sale by Designated Holders. To the
extent requested (A) by the Company, in the case of a non-underwritten public
offering and (B) by the Company Underwriter, in the case of an underwritten
public offering, each Investor agrees not to effect any sale or distribution of
any Common Stock or of any securities convertible into or exchangeable or
exercisable for Common Stock, including a sale pursuant to Rule 144 under the
Securities Act, or offer to sell, contract to sell (including without limitation
any short sale), grant any option to purchase or enter into any hedging or
similar transaction with the same economic effect as a sale of Common Stock
during the 120-day or, following the second anniversary of the date hereof,
90-day period (or such shorter period, if any, agreed to by the requesting
party) beginning on the effective date of any Registration Statement for such
underwritten public offering (except as part of such registration). The
Investors shall be relieved from any obligation provided for in this Section to
the extent that the Company or any holder of 5% or more of the outstanding
shares of Common Stock of the Company (or any person within the common control
of any such person or a family member of any such person) subject to a
registration rights agreement with the Company shall be released from any
obligation similar to the foregoing.
5.2 Restrictions on Public Sale by the Company. The Company
agrees (a) not to effect any sale or distribution of any Common Stock, or any
securities convertible into or exchangeable or exercisable for Common Stock
(except pursuant to registrations on Form S-4 or S-8 or any successor thereto),
during the period beginning on the effective date of any Registration Statement
in which the Investors are participating and ending on (x) the date on which all
Registrable Securities registered on such Registration Statement are sold
(except as
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part of such registration) or (y) in the case of an underwritten offering, on
the 90th day (or such shorter period as may be agreed to by the Investors or by
the managing underwriter) after the effective date of any such Registration
Statement relating to a Demand Registration; provided that the Company shall be
relieved of any such obligation to the extent the Investors or any holder of 5%
or more of the outstanding shares of Common Stock is relieved of any such
obligation, and (b) to use commercially reasonable efforts to cause its
directors, executive officers and each beneficial owner of 5% or more of the
outstanding shares of Common Stock of the Company (other than the Blackstone
Investors or the Xxxxxxxxxxx Investors) to agree not to effect any public sale
or distribution of any Common Stock (or securities convertible or exchangeable
therefor) of the Company owned or controlled by them or their respective family
members at a time when the Company is restricted under the preceding clause (a),
except under such Registration Statement.
ARTICLE VI
REGISTRATION PROCEDURES
6.1 Obligations of the Company. Whenever registration of
Registrable Securities has been requested pursuant to this Agreement, the
Company shall use its reasonable best efforts to effect the registration and
sale of such Registrable Securities in accordance with the intended method of
distribution thereof as quickly as practicable, and in connection with any such
request, the Company shall, as expeditiously as possible:
(a) prepare and file with the Commission a Registration
Statement on any form for which the Company then qualifies or which
counsel for the Company shall deem appropriate and which form shall be
available for the sale of such Registrable Securities in accordance
with the intended method of distribution thereof, and use its
reasonable best efforts to cause such Registration Statement to become
effective; provided, however, that (x) before filing a Registration
Statement or prospectus or any amendments or supplements thereto, the
Company shall provide counsel selected by the Investors holding a
majority of the Registrable Securities being registered in such
registration ("Holders' Counsel") and any other Inspector with a
reasonably adequate and appropriate opportunity to review and comment
on such Registration Statement and each prospectus included therein
(and each amendment or supplement thereto) to be filed with the
Commission, subject to such documents being under the Company's
control, and (y) the Company shall notify the Holders' Counsel and each
seller of Registrable Securities of any stop order issued or threatened
by the Commission and take all action required to prevent the entry of
such stop order or to remove it if entered;
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(b) prepare and file with the Commission 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 lesser of (x) 90 days and (y) such shorter
period which will terminate when all Registrable Securities covered by
such Registration Statement have been sold, and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement;
(c) furnish to each seller of Registrable Securities, prior to
filing a Registration Statement, at least one copy of such Registration
Statement as is proposed to be filed, and thereafter such number of
copies of such Registration Statement, each amendment and supplement
thereto (in each case including all exhibits thereto), and the
prospectus included in such Registration Statement (including each
preliminary prospectus) and any prospectus filed under Rule 424 under
the Securities Act as each such seller may reasonably request in order
to facilitate the disposition of the Registrable Securities owned by
such seller;
(d) register or qualify such Registrable Securities under such
other securities or "blue sky" laws of such jurisdictions as any seller
of Registrable Securities may reasonably request, and to continue such
qualification in effect in such jurisdiction for as long as required
pursuant to the laws of such jurisdiction, or for as long as any such
seller reasonably requests or until all of such Registrable Securities
are sold, whichever is shortest, and do any and all other acts and
things which may be reasonably necessary or advisable to enable any
such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller; provided, however, that
the Company shall not be required to as a result of such registration
or qualification (x) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this Section 6.1(d), (y) subject itself to taxation in any such
jurisdiction or (z) consent to general service of process in any such
jurisdiction;
(e) notify each seller of Registrable Securities at any time
when a prospectus relating thereto is required to be delivered under
the Securities Act, upon discovery that, or upon the happening of any
event as a result of which, the prospectus included in such
Registration Statement contains an 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, in light of the circumstances
under which they were made, not misleading, and the Company shall
promptly prepare a supplement or amendment to such prospectus and
furnish to each seller of Registrable Securities a reasonable number of
copies of such supplement to or an amendment of such prospectus as may
be necessary
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so that, after delivery to the purchasers of such Registrable
Securities, such prospectus shall not contain an 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, in light of the
circumstances under which they were made, not misleading;
(f) enter into and perform customary agreements (including an
underwriting agreement in customary form with the Company Underwriter,
if any) and take such other actions as are prudent and reasonably
required in order to expedite or facilitate the disposition of such
Registrable Securities;
(g) make available at reasonable times for inspection by any
seller of Registrable Securities, any managing underwriter
participating in any disposition of such Registrable Securities
pursuant to a Registration Statement, Holders' Counsel and any
attorney, accountant or other agent retained by any such seller or any
managing underwriter (each, an "Inspector" and collectively, the
"Inspectors"), all financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause
the Company's and its subsidiaries' officers, directors and employees,
and the independent public accountants of the Company, to supply all
information reasonably requested by any such Inspector in connection
with such Registration Statement. Records that the Company determines,
in good faith, to be confidential and which it notifies the Inspectors
are confidential shall not be disclosed by the Inspectors (and the
Inspectors shall confirm their agreement in writing in advance to the
Company if the Company shall so request) unless (x) the disclosure of
such Records is necessary, in the Company's judgment, to avoid or
correct a misstatement or omission in the Registration Statement, (y)
the release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction after exhaustion of all
appeals therefrom or (z) the information in such Records was known to
the Inspectors on a non-confidential basis prior to its disclosure by
the Company or has been made generally available to the public. Each
seller of Registrable Securities agrees that it shall, upon learning
that disclosure of such Records is sought in a court of competent
jurisdiction, 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;
(h) if such sale is pursuant to an underwritten offering,
cause to be delivered "cold comfort" letters dated the effective date
of the Registration Statement and the date of the closing under the
underwriting agreement from the Company's independent public
accountants in customary form and covering such matters of the type
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customarily covered by "cold comfort" letters as Holders' Counsel or
the managing underwriter reasonably requests;
(i) if such sale is pursuant to an underwritten offering,
cause to be furnished, at the request of any seller of Registrable
Securities on the date such securities are delivered to the
underwriters for sale pursuant to such registration or, if such
securities are not being sold through underwriters, on the date the
Registration Statement with respect to such securities becomes
effective, an opinion, dated such date, of counsel representing the
Company for the purposes of such registration, addressed to the
underwriters, if any, and to the seller making such request, covering
such legal matters with respect to the registration in respect of which
such opinion is being given as the underwriters, if any, and such
seller may reasonably request and are customarily included in such
opinions;
(j) comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon as
reasonably practicable but no later than fifteen (15) months after the
effective date of the Registration Statement, an earnings statement
covering a period of twelve (12) months beginning after the effective
date of the Registration Statement, in a manner which satisfies the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(k) cause all such Registrable Securities to be listed on each
securities exchange or quoted on the quotation system on which similar
securities issued by the Company are then listed or quoted, provided
that the applicable listing requirements are satisfied, which
requirements the Company shall use reasonable best efforts to satisfy;
(l) keep Holders' Counsel advised in writing as to the
initiation and progress of any registration under Article IV hereunder;
(m) cooperate with each seller of Registrable Securities and
each underwriter participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the NASD;
(n) make officers available to participate in customary road
shows and other informational meetings as reasonably requested by any
Company Underwriter; and
(o) take all other steps reasonably necessary to effect the
registration of the Registrable Securities contemplated hereby.
6.2 Seller Information. (a) It shall be a condition precedent
to the obligation of the Company to include any Registrable Securities of any
Investor in a Registration
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Statement pursuant to this Agreement that the Investor shall furnish to the
Company such information regarding itself, the Registrable Securities held by
it, any other securities of the Company held by it, and the intended method of
disposition of such Registrable Securities as shall be required to effect the
registration of the Registrable Securities held by such Investor, including,
without limitation, all information required to be disclosed in order to make
the information previously furnished to the Company by such Investor not
materially misleading or necessary to cause such Registration Statement not to
omit a material fact with respect to such Investor necessary in order to make
the statements therein not misleading. Any such information shall be provided to
the Company within any reasonable time period requested by the Company.
(b) Each Investor shall notify the Company, at any time when a
prospectus is required to be delivered under applicable law, of the happening of
any event as a result of which the prospectus included in the applicable
Registration Statement, as then in effect, in each case only with respect to
information provided by such Holder, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing. Such Investor shall immediately upon the happening
of any such event cease using such prospectus.
6.3 Notice to Discontinue. Each Investor agrees that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 6.1(e) or 6.2(b), such Investor shall forthwith discontinue
disposition of Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities until such Investor's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 6.1(e) and, if
so directed by the Company, such Investor shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Investor's possession, of the prospectus covering such Registrable Securities
which is current at the time of receipt of such notice. If the Company shall
give any such notice, the Company shall extend the period during which such
Registration Statement shall be maintained effective pursuant to this Agreement
(including, without limitation, the period referred to in Section 6.1(b)) by the
number of days during the period from and including the date of the giving of
such notice pursuant to Section 6.1(e) to and including the date when sellers of
such Registrable Securities under such Registration Statement shall have
received the copies of the supplemented or amended prospectus contemplated by
and meeting the requirements of Section 6.1(e).
6.4 Registration Expenses. The Company shall pay all expenses
arising from or incident to its performance of, or compliance with, this
Agreement, including, without limitation, (i) Commission, stock exchange and
NASD registration and filing fees, (ii) all fees and expenses incurred in
complying with securities or "blue sky" laws (including reasonable
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fees, charges and disbursements of counsel to any underwriter incurred in
connection with "blue sky" qualifications of the Registrable Securities as may
be set forth in any underwriting agreement), (iii) all printing, messenger and
delivery expenses, (iv) the fees, charges and disbursements of counsel to the
Company and of its independent public accountants and any other accounting fees,
charges and expenses incurred by the Company (including, without limitation, any
expenses arising from any "cold comfort" letters or any special audits incident
to or required by any registration or qualification), (v) the reasonable fees,
charges and disbursements of one counsel to all Investors and other selling
security holders not to exceed $45,000 in respect of any one registration and
(vi) any liability insurance or other premiums for insurance obtained in
connection with any Incidental Registration pursuant to the terms of this
Agreement, regardless of whether such Registration Statement is declared
effective. All of the expenses described in the preceding sentence of this
Section 6.4 are referred to herein as "Registration Expenses." Investors holding
Registrable Securities sold pursuant to a Registration Statement shall bear the
expense of any broker's commission, underwriter's discount or commission or
transfer taxes relating to registration and sale of such Designated Holder's
Registrable Securities and, subject to clause (v) above, shall bear the fees and
expenses of their own counsel.
ARTICLE VII
INDEMNIFICATION; CONTRIBUTION
7.1 Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Investor, its partners, directors, officers,
shareholders, members, agents, representatives and advisors, affiliates and each
Person who controls (within the meaning of Section 15 of the Securities Act)
such Investor from and against any and all losses, claims, damages, liabilities
and expenses (including reasonable costs of investigation) (each, a "Liability"
and collectively, "Liabilities"), arising out of or based upon (x) any untrue,
or allegedly untrue, statement of a material fact contained in any Registration
Statement (as amended) or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or (y) any untrue, or
allegedly untrue, statement of a material fact contained in any prospectus or
preliminary prospectus (as amended or supplemented) or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances under which such statements were made or (z)
arising out of a violation by the Company of the Securities Act, the Exchange
Act, any federal or state securities law or any rule or regulation promulgated
thereunder such legislation, except insofar as such Liability (i) arises out of
or is based upon any untrue statement or alleged untrue statement or omission or
alleged omission contained in such Registration Statement,
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preliminary prospectus or final prospectus in reliance and in conformity with
information concerning such Investor furnished in writing to the Company by such
Investor expressly for use therein, including, without limitation, the
information furnished to the Company pursuant to Section 6.2 except the Company
shall be liable if such untrue Statement or omission or alleged untrue Statement
or omission was corrected in such registration Statement, preliminary prospectus
or final prospectus (or amendment or supplement thereto) and the Company failed
to deliver such corrected document under circumstances in which the obligation
to do so was the responsibility of the Company, or (ii) is caused by any failure
by the Designated Holder to deliver a prospectus or preliminary prospectus (or
amendment or supplement thereto) as and when required under the Securities Act
after such prospectus has been timely furnished by the Company. The Company
shall also provide customary indemnities to any underwriters of the Registrable
Securities, their officers, directors and employees and each Person who controls
such underwriters (within the meaning of Section 15 of the Securities Act) to
the same extent as provided above with respect to the indemnification of the
Investors.
7.2 Indemnification by Investors. Each Investor agrees to
indemnify and hold harmless the Company, any underwriter retained by the
Company, each of their respective officers, directors and affiliates and each
Person who controls the Company or such underwriter (within the meaning of
Section 15 of the Securities Act) to the same extent as the foregoing indemnity
from the Company to the Investors, but only if such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with information with respect to such Investor furnished in writing
to the Company by such Investor expressly for use in such Registration Statement
or prospectus to the extent that the Liability results from the statement,
alleged statement, omission or alleged omission so made in reliance upon and in
conformity with such information; provided, however, that the total amount to be
indemnified by such Investor pursuant to Section 7.2 shall be limited to the net
proceeds received by such Investor in the offering to which the Registration
Statement or prospectus relates.
7.3 Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder (the "Indemnified Party") agrees to give
prompt written notice to the indemnifying party (the "Indemnifying Party") after
the receipt by the Indemnified Party of any written notice of the commencement
of any action, suit, proceeding or investigation or threat thereof made in
writing to the Indemnified Party for which the Indemnified Party intends to
claim indemnification or contribution pursuant to this Agreement; provided,
however, that the failure so to notify the Indemnifying Party shall not relieve
the Indemnifying Party of any Liability that it may have to the Indemnified
Party hereunder (except to the extent that the Indemnifying Party is materially
prejudiced or otherwise forfeits substantive rights or defenses by reason of
such failure). If notice of commencement of any such action is given to the
Indemnifying Party as above provided, the Indemnifying Party shall be entitled
to
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participate in and, to the extent it may wish, jointly with any other
Indemnifying Party similarly notified, to assume the defense of such action at
its own expense, with counsel chosen by it and reasonably satisfactory to such
Indemnified Party. The Indemnified Party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be paid by the Indemnified Party unless (i)
the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails
to assume the defense of such action with counsel reasonably satisfactory to the
Indemnified Party or (iii) the named parties to any such action (including any
impleaded parties) include both the Indemnifying Party and the Indemnified Party
and such parties have been advised by such counsel that either (x)
representation of such Indemnified Party and the Indemnifying Party by the same
counsel would be inappropriate under applicable standards of professional
conduct or (y) there may be one or more legal defenses available to the
Indemnified Party which are different from or additional to those available to
the Indemnifying Party. In any of such cases, the Indemnifying Party shall not
have the right to assume the defense of such action on behalf of such
Indemnified Party, it being understood, however, that the Indemnifying Party
shall not be liable for the fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all Indemnified Parties. No
Indemnifying Party shall be liable for any settlement entered into without its
written consent, which consent shall not be unreasonably withheld. No
Indemnifying Party shall, without the consent of such Indemnified Party, which
consent shall not be unreasonably withheld, effect any settlement of any pending
or threatened proceeding in respect of which such Indemnified Party is a party
and indemnity has been sought hereunder by such Indemnified Party, unless such
settlement includes an unconditional release of such Indemnified Party from all
Liability for claims that are the subject matter of such proceeding.
7.4 Contribution. If the indemnification provided for in this
Article 7 from the Indemnifying Party is unavailable to an Indemnified Party
hereunder in respect of any Liabilities referred to herein, then 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 Liabilities in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party and Indemnified Party in connection with the
actions which resulted in such Liabilities, as well as any other relevant
equitable considerations. The relative faults of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the parties, relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the Liabilities referred to above shall be
deemed to include, subject to the limitations set forth in Sections 7.1, 7.2 and
7.3, any legal or other fees, charges or expenses reasonably incurred by such
party in connection with any investigation or proceeding; provided that the
total amount to be
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contributed by such Investor shall be limited to the net proceeds received by
such Investor in the offering.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7.4 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. 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.
ARTICLE VIII
COVENANTS
8.1 Rule 144. The Company covenants that it shall (a) make and
keep public information available (as those terms are understood and defined in
Rule 144), (b) file any reports required to be filed by it under the Exchange
Act and (c) take such further action as each Investor of Registrable Securities
may reasonably request (including providing any information necessary to comply
with Rule 144 under the Securities Act), all to the extent required from time to
time to enable such Investor to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by (i)
Rule 144 under the Securities Act, as such rule may be amended from time to
time, or Regulation S under the Securities Act or (ii) any similar rules or
regulations hereafter adopted by the Commission. The Company shall, upon the
request of any Investor holding Registrable Securities, deliver to such Investor
a written statement as to whether it has complied with such requirements.
8.2 Xxxxxxxxxxx and Blackstone Priority of Sale.
Notwithstanding anything to the contrary set forth in this Agreement, in the
event of any registered public offering of Common Stock in which Blackstone
Holders and/or Xxxxxxxxxxx Holders, on the one hand, and any other stockholder
of the Company (including, without limitation, any Investor), on the other hand,
desire or intend to sell Common Stock, Blackstone Holders and Xxxxxxxxxxx
Holders, pro rata based on the number of shares of Common Stock then owned by
each, shall have an absolute right to sell prior to the right of any other such
holder in such offering.
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ARTICLE IX
MISCELLANEOUS
9.1 Recapitalizations, Exchanges, etc. The provisions of this
Agreement shall apply to the full extent set forth herein with respect to (i)
the shares of Common Stock, (ii) any and all shares of common stock of the
Company into which the shares of Common Stock are converted, exchanged or
substituted in any recapitalization or other capital reorganization by the
Company and (iii) any and all equity securities of the Company or any successor
or assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in conversion of, in exchange for
or in substitution of, the shares of Common Stock and shall be appropriately
adjusted for any stock dividends, splits, reverse splits, combinations,
recapitalizations and the like occurring after the date hereof. The Company
shall cause any successor or assign (whether by merger, consolidation, sale of
assets or otherwise) to assume this Agreement with the Investors on terms
substantially the same as this Agreement as a condition of any such transaction.
9.2 No Inconsistent Agreements. (a) The Company represents and
warrants that it has not granted to any Person, other than pursuant to the
Existing Registration Rights Agreement, the Second Rights Agreement and the
Textron Rights Agreement, the right to request or require the Company to
register any securities issued by the Company, other than the rights granted to
the Investors herein.
(b) The Company represents and warrants that the rights
granted to Persons pursuant to the Existing Registration Rights Agreement and
the Second Rights Agreement and the Textron Rights Agreement are not
inconsistent with the rights granted to Persons in this Agreement in any
material respect. Further, it is the Company's interpretation that in the event
of an exercise by more than one party of a right to a "Demand Registration"
under Section 3.1 of any of the Existing Registration Rights Agreement, the
Second Rights Agreement or the Textron Rights Agreement, only the party or group
that is first in time to exercise such demand will be considered by the Company
to have made a Demand Registration under the applicable agreement and all others
will be considered by the Company to be exercising incidental or piggy-back
registration rights (except as contemplated by Section 3.2 of any such agreement
as such section is in effect on the date of this Agreement). The Company also
represents and warrants and agrees that its right of priority as between itself
and the applicable Investors are governed by Section 4.1 of this Agreement and
not by those sections of the Existing Registration Rights Agreement or the
Second Rights Agreement. The Company shall not enter into any agreement or
modification, amendment or supplement to any existing agreement that is
inconsistent with the rights granted in this Agreement or grant any additional
rights to any Person with respect to securities of the Company inconsistent
with the rights
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Company inconsistent with the rights granted in this Agreement in any material
respect. True and correct copies of the Existing Registration Rights Agreement,
the Second Rights Agreement and the Textron Rights Agreement as in effect on the
date hereof have been provided to the Investors. The Company acknowledges and
agrees that the Investors are relying upon the Existing Registration Rights
Agreement, the Second Rights Agreement and the Textron Rights Agreement as in
effect on the date hereof. The Company agrees that, without the consent of a
Majority of Investors, none of the Existing Registration Rights Agreement, the
Second Rights Agreement or the Textron Rights Agreement will be amended or
modified in a manner which is adverse to the Investors, including without
limitation with respect to increasing the number of Demand Registrations,
changing the first date upon which a Demand Registration may be made and
eliminating or reducing holdback arrangements in a manner adverse to an offering
by the Investors pursuant to the terms hereof.
9.3 Remedies. The Investors, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, shall be
entitled to specific performance of their rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive in any action for specific performance the defense
that a remedy at law would be adequate.
9.4 Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be made
by telecopier, courier service or personal delivery, including a copy to the
counsel set forth on that page:
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(a) if to the Company:
Xxxxxxx & Xxxxxx Corporation
0000 Xxx Xxxx Xxxxx
Xxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, CEO
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq., General Counsel
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: W. Xxxxxx Xxxxx, Esq.
Xxxxxxxx X. Xxxxxxxxx, Esq.
(b) if to the Investors, to the address set forth on the
signature page to the Subscription Agreement, including a copy to the counsel
set forth on such page.
All such notices, demands and other communications shall be
deemed to have been duly given when delivered by hand, if personally delivered;
when delivered by courier, if delivered by commercial courier service; two (2)
Business Days after being deposited in the mail, postage prepaid, if mailed; and
when receipt is mechanically acknowledged, if telecopied. Any party may by
notice given in accordance with this Section 9.4 designate another address or
Person for receipt of notices hereunder, and the Company shall update its record
books accordingly.
9.5 Successors and Assigns; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties hereto as hereinafter provided. With respect to
any Registrable Security that is transferred to an Affiliate of an Investor, all
rights under and the benefit of this Agreement shall be automatically
transferred to such transferee who agrees in writing to be bound hereby. The
incidental or "piggy-back" registration rights of the Investors contained in
Article IV hereof and the related provisions and benefits, with respect to any
Registrable Security, shall be automatically transferred to any Person who is
the transferee of such Registrable Security. All of the obligations of the
Company hereunder shall survive any such transfer. Any assignment in violation
of this Agreement shall be null and void. Except as provided in Article VII, no
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Person other than the parties hereto and their successors and permitted assigns
is intended to be a beneficiary of this Agreement.
9.6 Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless consented to in writing by (i) the Company and (ii) a
Majority of the Investors; provided, however, that consent need not be obtained
from an Investor in the case of any amendment, modification, supplement, waiver
or consent that does not affect such Investor. Any such written consent (or
amendment, modification, supplement, consent or waiver for which written consent
of a party is not required in accordance with this Section 9.6) shall be binding
upon the Company and all of the Investors.
9.7 Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
9.8 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
9.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
9.10 Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
9.11 Rules of Construction. Unless the context otherwise
requires, references to sections or subsections refer to sections or subsections
of this Agreement.
9.12 Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, representations, warranties or undertakings, other than those set
forth or referred to herein. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such subject matter.
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9.13 Further Assurances. Each of the parties shall, and shall
cause their respective Affiliates to, execute such documents and perform such
further acts as may be reasonably required or desirable to carry out or to
perform the provisions of this Agreement.
9.14 Other Agreements. Nothing contained in this Agreement
shall be deemed to be a waiver of, or release from, any obligations any party
hereto may have under, or any restrictions on the transfer of Registrable
Securities or other securities of the Company imposed by, any other agreement
including, but not limited to, the Subscription Agreement.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have executed, or have
cause to be executed, this Agreement on the date first written above.
XXXXXXX & XXXXXX CORPORATION
By: s/s Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and
General Counsel
XXXXXX VENTURES, LLC
By: /s/ Xxxxxxx X. XxXxxxxxx
--------------------------------------
Name: Xxxxxxx X. XxXxxxxxx
Title: President
DRESDNER KLEINWORT CAPITAL PARTNERS
2001 LP
By: /s/ Xxxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Managing Investment Partner
MASCO CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Vice President
ML IBK POSITIONS, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
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CANADA PENSION PLAN INVESTMENT BOARD
By: /s/ Xxxx X. XxxXxxxxxxx
--------------------------------------
Name: Xxxx X. XxxXxxxxxxx
Title: President and Chief Executive
Officer
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MESIROW CAPITAL PARTNERS VIII, L.P.
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President - Private Market
Investments
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COMERICA CAPITAL ADVISORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Managing Director
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CANADIAN PENSION PLAN INVESTMENT BOARD
By: /s/ Xxxxxx X. Xxxxx III
--------------------------------------
Name: Xxxxxx X. Xxxxx III
Title: Managing Director
