EXHIBIT 10.17
REGISTRATION RIGHTS AGREEMENT
dated as of July 31, 1996
among
FIREARMS TRAINING SYSTEMS, INC.
and
THE INSTITUTIONAL HOLDERS SET FORTH ON SCHEDULE I
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of July 31, 1996
among Firearms Training Systems, Inc., a Delaware corporation (the "Company"),
and the entities set forth on Schedule I (the "Institutional Holders").
RECITALS
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WHEREAS, the Company, Firearms Training Systems International N.V., a
Netherlands Antilles corporation ("FATS International"), and the Institutional
Holders are parties to the Recapitalization and Stock Purchase and Sale
Agreement dated as of June 5, 1996, as amended through the date hereof (the
"Recapitalization Agreement"), pursuant to which the Institutional Holders
purchased Common Stock of the Company, a portion of the Common Stock held by
FATS International was redeemed and the Company was recapitalized (the
"Recapitalization"); and
WHEREAS, the parties hereto hereby desire to set forth the Holders' rights
and the Company's obligations to cause the registration of the Registrable
Securities pursuant to the Securities Act;
NOW, THEREFORE, in consideration of the purchase by the Institutional
Holders of the Shares and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions and Usage.
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As used in this Agreement:
1.1. Definitions.
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Agent. "Agent" means the principal placement agent on an agented
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placement of Registrable Securities.
Commission. "Commission" shall mean the Securities and Exchange
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Commission.
Common Stock. "Common Stock" shall mean (i) the Class A Common Stock,
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par value $.00001 per share, and Class B Non-voting Common Stock, par value
$.00001 per share, of the Company, and (ii) shares of capital stock of the
Company issued by the Company in respect of or in exchange for shares of such
Class A Common Stock or Class B Non-voting 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 Class A Common Stock or
Class B Non-voting Common Stock.
Continuously Effective. "Continuously Effective", with respect to a
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specified registration statement, shall mean that it shall not cease to be
effective and available for Transfers of Registrable Securities thereunder for
longer than either (i) any ten (10) consecutive business days, or (ii) an
aggregate of fifteen (15) business days during the period specified in the
relevant provision of this Agreement.
Demanding Holders. "Demanding Holders" shall have the meaning
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set forth in Section 2.1(a).
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Demand Registration. "Demand Registration" shall have the
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meaning set forth in Section 2.1(a).
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Exchange Act. "Exchange Act" shall mean the Securities Exchange
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Act of 1934.
Financing Securities. "Financing Securities" shall mean (i) all
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securities issued by the Company (including any notes, preferred stock and/or
warrants) in connection with the financing of the Recapitalization obtained as
reflected in the Bridge Financing Commitment Letter dated June 5, 1996 issued by
NationsBridge, L.L.C. to Centre Partners Management LLC, and any Refinancing
Securities, as defined in such Bridge Financing Commitment Letter and (ii) any
securities issued by the Company in connection with a "Refinancing Mandatory
Prepayment" (as defined in the Recapitalization Financing Commitment Letter
dated June 5, 1996 issued by NationsBank, N.A. (South) to Centre Partners
Management LLC), including any securities issued in a Refinancing Mandatory
Prepayment involving a private placement, under Rule 144A, or in a registered
public offering.
Holder or Holders. "Holder" or "Holders" shall mean, as applicable,
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the Institutional Holders and any Person to which rights under this Agreement
are transferred pursuant to Section 10 hereof.
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Initial Public Offering. "Initial Public Offering" means the first
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offering of shares of Common Stock registered pursuant to the Securities Act.
Institutional Holders. "Institutional Holders" has the meaning set
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forth in the initial paragraph of this Agreement.
Majority Selling Holders. "Majority Selling Holders" means, with
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respect to a specified registration pursuant to this Agreement, those Selling
Holders whose Registrable Securities included in such registration represent a
majority of the Registrable Securities of all Selling Holders included therein.
NV Holders. "NV Holders" means FATS International and any other
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Person defined as a Holder within the meaning of the NV Registration Rights
Agreement.
NV Registration Rights Agreement. "NV Registration Rights Agreement"
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means the Registration Rights Agreement dated as of the date hereof executed
pursuant to the Recapitalization Agreement among the Company, the Institutional
Holders and FATS International.
Other Securities. "Other Securities" means those shares of Common
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Stock or other securities convertible into, exercisable for or exchangeable for,
shares of Common Stock and that do not constitute Primary Securities, Financing
Securities or Registrable Securities.
Person. "Person" shall mean any individual, corporation, partnership,
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joint venture, association, joint-stock company, limited liability company,
trust, unincorporated organization or government or other agency or political
subdivision thereof.
Piggyback Registration. "Piggyback Registration" shall have the
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meaning set forth in Section 3.
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Primary Securities. "Primary Securities" means the authorized but
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unissued shares of Common Stock and shares of Common Stock held by the Company
in its treasury.
Register, Registered and Registration. "Register", "registered", and
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"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.
Registrable Securities. "Registrable Securities" shall mean: (i) the
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Shares owned by the Holders on the date hereof, and/or owned by the Holders on
the date of determination; (ii) any shares of Common Stock issued 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; and (iii) any securities issued in exchange for
Shares in any merger or reorganization of the Company; provided, however, that
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Registrable Securities shall not include any securities which have theretofore
been registered and sold pursuant to the Securities Act or which have been
transferred pursuant to Rule 144 or any similar rule promulgated by the
Commission pursuant to the Securities Act; provided further, the Company shall
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have no obligation under Sections 2 and 3 to register any Registrable Securities
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of a Holder if the Company shall deliver to the Holder an opinion of counsel
reasonably satisfactory to the Holder and its counsel to the effect that the
proposed sale or disposition of all of the Registrable Securities for which
registration was requested does not require registration under the Securities
Act for a sale or disposition in a single public sale in the manner contemplated
by the Holder, and offers to remove any and all legends restricting transfer
from the certificates evidencing such Registrable Securities.
Registrable Securities Then Outstanding. "Registrable Securities Then
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Outstanding" shall mean, with respect to a specified determination date, all of
the Registrable Securities owned by the Holders on such date.
Registration Expenses. "Registration Expenses" shall have the
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meaning set forth in Section 6.1.
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Securities Act. "Securities Act" shall mean the Securities Act
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of 1933, as amended.
Selling Holders. "Selling Holders" shall mean, with respect to a
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specified registration pursuant to this Agreement, Holders whose Registrable
Securities are included in such registration.
Shares. "Shares" shall mean shares of Common Stock or other
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securities convertible into, exercisable for or exchangeable for, shares of
Common Stock.
Transfer. "Transfer," with respect to any securities, shall mean and
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include the act of selling, giving, transferring, creating a trust for (voting
or otherwise), assigning or otherwise disposing of such securities (other than
pledging, hypothecating or otherwise transferring as security) (and correlative
words shall have correlative meanings); provided however, that any transfer or
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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 security shall constitute a "Transfer."
Underwriters' Representative. "Underwriters' Representative" shall
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mean the managing underwriter, or, in the case of a co-managed underwriting, the
managing underwriter designated as the Underwriters' Representative by the co-
managers.
Violation. "Violation" shall have the meaning set forth in
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Section 7.1.
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1.2. Usage.
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(a) References to a Person are also references to its assigns and
successors in interest (by means of merger, consolidation or sale of all or
substantially all 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.
(c) 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.
(d) The "date of" any notice or request given pursuant to this
Agreement shall be determined in accordance with Section 11.
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(e) 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).
(f) References to Sections or to Schedules or Exhibits are to sections
hereof or schedules or exhibits hereto unless the context otherwise requires.
(g) 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.
(h) The term "hereof" and similar terms refer to this Agreement
as a whole.
Section 2. Demand Registration.
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2.1.
(a) At any time on or after the date of this Agreement, if one or more
Holders that own an aggregate of a majority of the Registrable Securities Then
Outstanding shall make a written request to the Company (the "Demanding
Holders"), the Company shall cause there to be promptly filed with the
Commission a registration statement meeting the requirements of the Securities
Act (a "Demand Registration"), and each Demanding Holder shall be entitled to
have included therein (subject to Section 2.6) all or such number of Registrable
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Securities as such Demanding Holder shall request in writing; provided, however,
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that no request may be made pursuant to this Section 2.1 if within nine (9)
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months prior to the date of such request a Demand Registration pursuant to this
Section 2.1 shall have been satisfied (as provided in Section 2.3). Any request
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made pursuant to this Section 2.1 shall be addressed to the attention of the
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Secretary of the Company with a copy to 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
pursuant to this Section 2.1(a).
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(b) The Company shall be entitled to postpone for up to 120 days from
receipt of the written request for a Demand Registration the filing of any
Demand Registration statement otherwise required to be prepared and filed
pursuant to this Section 2.1, if the Board determines, in its good faith
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reasonable judgment, that such registration and the Transfer of Registrable
Securities contemplated thereby would materially interfere with, or require
premature disclosure of, (a) any financing, acquisition or reorganization
involving the Company or any of its material wholly owned subsidiaries or (b)
any other material contract under active negotiation by the Company or any of
its subsidiaries, disclosure of which is prohibited by applicable regulation,
and the Company promptly gives the Demanding Holders notice of such
determination; provided, however, that the Company shall not have postponed
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pursuant to this Section 2.1(b) the filing of any other Demand Registration
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statement otherwise required to be prepared and filed pursuant to this Section
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2.1 during the 6 month period ended on the date of the relevant request pursuant
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to Section 2.1(a); and provided further that the Company shall file any
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registration statement postponed pursuant to this Section 2.1(b) as soon as
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reasonably practicable following the cessation of the conditions specified in
clauses (a) or (b) of this Section 2.1(b) if prior to the expiration of the 120-
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day period.
2.2. Following receipt of a request for a Demand Registration,
the Company shall:
(a) File the registration statement with the Commission as promptly as
practicable, and shall use the Company's reasonable best efforts to have the
registration statement declared effective under the Securities Act as soon as
reasonably practicable, 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 registration
statement Continuously Effective for up to 120 days or until such earlier date
as of which all the Registrable Securities included in the registration
statement shall have been disposed of in the manner described in the
registration statement. Notwithstanding the foregoing, if for any reason the
effectiveness of a registration statement pursuant to this Section 2 is
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postponed as permitted by Section 2.1(b), the foregoing period shall be extended
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by the aggregate number of days of such postponement.
(c) Whenever the Company shall have received a demand pursuant to
Section 2.1(a) to effect the registration of any Registrable Shares, the Company
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shall promptly give written notice of such proposed registration to all Holders
and the NV Holders. Any Holder may, within thirty (30) days after receipt of
such notice, request in writing that all of such Holder's Registrable Shares, or
any portion thereof designated by such Holder, be included in the registration.
2.3. The Company shall not be obligated to effect more than ten (10)
Demand Registrations. For purposes of the preceding sentence, registration shall
not be deemed to have been effected (i) unless a registration statement with
respect thereto has become effective, (ii) if after such registration statement
has become effective, such registration or the related offer, sale or
distribution of 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 the Selling Holders and such
interference is not thereafter eliminated, or (iii) if the conditions to closing
specified in the underwriting agreement, if any, entered into in connection with
such registration are not satisfied or waived, other than by reason of a failure
on the part of the Selling Holders. If the Company shall have complied with its
obligations under this Agreement, a right to demand a registration pursuant to
this Section 2 shall be deemed to have been satisfied upon the earlier of (x)
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the date as of which all of the Registrable Securities included therein shall
have been disposed of pursuant to a registration statement, and (y) the date as
of which such Demand Registration shall have been Continuously Effective for a
period of 120 days, provided no stop order or similar order, or proceedings for
such an order, is thereafter entered or initiated.
2.4. The Company may, at its sole option, elect to satisfy a
request for a Demand Registration on Form S-2 or Form S-3 promulgated under the
Securities Act (or any successor forms thereto), if such forms are then
available to the Company; provided, however, that the Majority Selling Holders
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or the Underwriters' Representative of the proposed offering shall have the
right to require that the Company disclose in the registration statement and
form of prospectus included therein the type of information that would be
required in a Form S-1 registration statement if the Underwriters'
Representative reasonably deems such disclosure to be advisable in order to
successfully market the securities intended to be sold in such offering.
2.5. If any registration pursuant to Section 2 involves an
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underwritten offering (whether on a "firm," "best efforts" or "all reasonable
efforts" basis or otherwise), or an agented offering, the Majority Selling
Holders shall have the right to select the managing underwriter and lead manager
to administer such underwritten offering or the lead placement agent for such
agented offering; provided, however, that each Person so selected shall be
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reasonably acceptable to the Company; and provided, further, that the Company
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shall have the right to select a co-managing underwriter or co-manager to
administer an underwritten offering and a co-placement agent if an agented
offering, provided that each Person so selected by the Company shall be
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reasonably acceptable to the Majority Selling Holders.
2.6.
(a) With respect to any registration pursuant to this Section 2, the
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Company may include in such registration any Financing Securities, Primary
Securities or Other Securities, including Other Securities held by the NV
Holders; provided, however, that if the Underwriters' Representative or Agent
advises the Company in writing (with a copy to each Selling Holder) that the
inclusion of all Registrable Securities of the Selling Holders, the
Financing Securities, the Primary Securities and the Other Securities proposed
to be included would materially interfere with the successful marketing
(including pricing) of the Registrable Securities proposed to be included in
such registration, then the number of Registrable Securities, Financing
Securities, Primary Securities and Other Securities proposed to be included in
such registration shall be included in the following order:
(i) If Financing Securities are included in the
registration, then, (A) first, the Other Securities held by the
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NV Holders requested to be included in such registration pursuant
to the NV Registration Rights Agreement and all Financing
Securities being registered pursuant to the exercise of
contractual rights comparable to the rights granted in either
this Section 2 or Section 3, pro rata based on the estimated
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gross proceeds from the sale thereof; (B) second, the Registrable
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Securities requested to be included in such registration by the
Selling Holders pursuant to this Section 2, pro rata based on the
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estimated gross proceeds from the sale thereof; (C) third, all
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Other Securities (except those Other Securities held by the NV
Holders) being registered, pro rata based on the estimated gross
proceeds from the sale thereof; and (D) fourth, the Primary
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Securities.
(ii) If Financing Securities are not included in the
registration, then (A) first, the Registrable Securities
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requested to be included in such registration by the Selling
Holders pursuant to this Section 2 and the Other Securities held
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by the NV Holders requested to be included in such registration
pursuant to the NV Registration Rights Agreement, (B) second, all
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Other Securities (except those Other Securities held by the NV
Holders) being registered, pro rata based on the estimated gross
proceeds from the sale thereof; and (C) third, the Primary
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Securities. In the event of a cutback, the allocation between the
Selling Holders and the NV Holders shall be such that the Selling
Holders, as a group, shall be able to include Registrable
Securities in the registration equal to 21% of the amount of
securities allocated to the Selling Holders and the NV Holders
under clause (ii)(A) of the preceding sentence.
(c) Whenever the Company shall effect a registration pursuant to this
Section 2 in connection with an underwritten offering by one or more Selling
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Holders of Registrable Securities, if such Selling Holders have requested the
inclusion therein of more than one class of Registrable Securities, and the
Underwriters' Representative or Agent advises each
such Selling Holder in writing that, in its opinion, the inclusion of more than
one class of Registrable Securities would adversely affect such offering, the
Demanding Holders holding at least a majority of the Registrable Securities
proposed to be sold therein by them shall decide which class of Registrable
Securities shall be included therein in such offering and the related
registration, and the other class shall be excluded.
2.7. Restrictions on Public Sale by the Company. The Company
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agrees (i) that it will not effect or permit any of its subsidiaries to effect
any public sale or distribution of any securities similar to those being
registered, or any securities convertible into or exchangeable or exercisable
for such securities (other than any such sale or distribution of such securities
in connection with any merger or consolidation by the Company or a material
subsidiary thereof or the acquisition by the Company or a subsidiary thereof of
the capital stock or substantially all of the assets of any other Person),
during the fourteen days prior to, and during the 90-day period beginning on,
the later of the effective date of any registration statement relating to a
Demand Registration (except as part of such registration statement and subject
to Section 2.6) or the commencement of a public distribution of Registrable
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Securities pursuant to a Demand Registration; and (ii) that any agreement
entered into pursuant to which the Company issues or agrees to issue any
privately placed securities during the period described in clause (i) above with
respect to a specific Demand Registration shall contain a provision under which
holders of such securities agree not to effect any public sales or distribution
of any such securities during such period, in each case including a sale
pursuant to Rule 144 or Rule 144A under the Securities Act (except as part of
any such registration, if permitted); provided, however, that the provisions of
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this paragraph shall not prevent the conversion or exchange of any securities
pursuant to their terms into or for other securities.
Section 3. Piggyback Registration.
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3.1. If at any time the Company proposes to register (including
for this purpose a registration effected by the Company for shareholders of the
Company other than the Holders) Shares under the Securities Act in connection
with a public offering solely for cash on Forms X-0, X-0 or S-3 (or any
replacement or successor forms), the Company shall promptly, at least 30 days
prior to the anticipated filing date of the registration statement for the
offering if on Form S-1 and at least 15 days prior to the anticipated filing
date of the registration statement for such offering if on Form S-2 or S-3, give
the Holders written notice of such registration. Upon the written request of a
Holder given within 15 days following the date of such notice, the Company shall
use its reasonable best efforts to cause to be registered under the Securities
Act all the Registrable Securities that such Holder shall have requested to be
registered (a "Piggyback Registration"); provided, however, that such right of
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inclusion shall be limited
as set forth in Section 3.2 and Section 3.3. The Company shall have the absolute
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right to withdraw or cease to prepare or file any registration statement for any
offering referred to in this Section 3 without any obligation or liability to
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the Holders.
3.2. With respect to a registration by the Company for its own
account or for a shareholder (except for the NV Holders exercising rights
pursuant to Section 2 of the NV Registration Rights Agreement), if the
Underwriters' Representative or Agent shall advise the Company in writing (with
a copy to each Selling Holder) that, in its opinion, the amount of Registrable
Securities requested to be included in such registration would materially
interfere with the successful marketing (including pricing) of such offering, or
the timing thereof, then the Company will include in such registration, to the
extent of the amount and class which the Company is so advised can be sold
without such material interference in such offering:
(a) first, all securities proposed to be sold by the Company for
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its own account; and then
(b) if Financing Securities are included in the registration, (i)
second, all Other Securities and all Financing Securities being registered
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pursuant to the exercise of contractual rights comparable to the rights granted
in this Section 3, (ii) third, the Registrable Securities requested to be
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included in such registration pursuant to this Section 3, and (iii) fourth, any
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Other Securities not covered by clause (ii) that are requested to be included in
such registration; in each case, pro rata based on the estimated gross proceeds
from the sale thereof, or
(c) if Financing Securities are not included in the registration, (i)
second, (x) the Registrable Securities requested to be included in such
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registration by the Selling Holders pursuant to this Section 3 and the Other
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Securities held by the NV Holders requested to be included in such registration
pursuant to Section 3 of the NV Registration Rights Agreement, considered
together as one amount, and (y) all Other Securities (except those Other
Securities held by the NV Holders) and Financing Securities being registered
pursuant to the exercise of contractual rights comparable to the rights granted
in this Section 3, determined pro rata based on the estimated gross proceeds
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from the sale thereof, and (ii) third, any Other Securities not covered by
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clause (c)(i) that are requested to be included in such registration. In the
event of a cutback, the allocation between the Selling Holders and the NV
Holders shall be such that the Selling Holders, as a group, shall be able to
include Registrable Securities in the registration equal to 21% of the amount of
securities allocated to the Selling Holders and the NV Holders under the method
described in clause (c)(i) of the preceding sentence.
3.3. With respect to a registration for the NV Holders in
connection with an exercise of rights pursuant to Section 2 of the NV
Registration Rights Agreement, if the Underwriters' Representative or Agent
shall advise the Company in writing (with a copy to each Selling Holder) that,
in its opinion, the amount of Registrable Securities requested to be included in
such registration would materially interfere with the successful marketing
(including pricing) of such offering, or the timing thereof, then the Company
will include securities in such registration, to the extent of the amount and
class which the Company is so advised can be sold without such material
interference in such offering, in accordance with the provisions of Section 2.6
of the NV Registration Rights Agreement.
Section 4. Registration Procedures. Whenever required under Section
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2 or Section 3 to effect the registration of any Registrable Securities, the
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Company shall, as expeditiously as practicable:
4.1. 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; provided, however, that before filing a registration statement or
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prospectus or any amendments or supplements thereto, including documents
incorporated by reference after the initial filing of the registration statement
and prior to effectiveness thereof, the Company shall furnish to one firm of
counsel selected by the Selling Holders copies of all such documents in the form
substantially as proposed to be filed with the Commission for review and comment
by such counsel prior to filing.
4.2. Prepare and file with the Commission such post-effective
amendments and supplements 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 and rules thereunder with
respect to the disposition of all securities covered by such registration
statement so that neither such registration statement nor any related prospectus
shall contain any material misstatement or omission relative to the Company or
any of its subsidiaries or any of their respective assets or liabilities or
their respective businesses or affairs and so that such registration statement
and prospectus will otherwise comply with all applicable legal requirements. If
the registration 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 5.2.
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Pending such amendment or supplement, each such Holder shall cease making offers
or Transfers of Registerable Securities pursuant to the prospectus to be so
amended or supplemented. In the event that any Registrable Securities included
in a registration statement subject to, or required by, this Agreement remain
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 Registrable
Securities from registered status.
4.3. Furnish to each Selling Holder, without charge, such
numbers of 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 including all
exhibits thereto), in each case in conformity with the requirements of the
Securities Act and the rules thereunder, and such other related documents as any
such Selling Holder may reasonably request in order to facilitate the
disposition of Registrable Securities owned by such Selling Holder.
4.4. Use the Company's reasonable efforts (i) to register and
qualify the securities covered by such registration statement under such other
securities or Blue Sky laws of such states or jurisdictions, domestic or
foreign, as shall be reasonably requested by the Underwriters' Representative or
Agent (as applicable, or if inapplicable, in states designated by the Majority
Selling 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 possible
moment; provided, however, that the Company shall not be required in connection
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therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
4.5. In the event of any underwritten or agented offering,
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 Majority Selling Holders and the Underwriters'
Representative or Agent for such offering in the marketing within the United
States of America of the Registrable Securities, including taking reasonable
steps to make available the Company's officers, accountants, counsel, premises,
books and records for such purpose, but the Company shall not be required to
incur any material out-of-pocket expense pursuant to this sentence.
4.6. Promptly notify each Selling Holder of any stop order
issued or threatened to be issued by the Commission in connection therewith (and
take all reasonable actions required to prevent the entry of such stop order or
to remove it if entered).
4.7. Make available for inspection by any Selling Holder, any
underwriter participating in such offering and the representatives of such
Selling Holder and underwriter and any attorney, accountant or other
professional retained by such Selling Holder, all financial and other records,
corporate documents and other information as shall be reasonably requested by
them, and provide the Selling Holder, any underwriter participating in such
offering and the representatives of such Selling Holder and underwriter the
reasonable 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 all as necessary to enable them to exercise their due diligence
responsibility under the Securities Act; provided, however, that information
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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 in customary form or the
related Selling Holder agrees to be responsible for such Person's breach of
confidentiality on terms reasonably satisfactory to the Company.
4.8. Use the Company's reasonable best efforts to obtain a so-
called "comfort letter" from its independent public accountants, legal opinions
of counsel to the Company addressed to the Selling Holders, auditor's consents
and experts' cooperation as may be required or desirable to complete the
registration process, in customary form and covering such matters of the type
customarily covered by such letters, opinions or consents, and in a form that
shall be reasonably satisfactory to the Majority Selling Holders. The Company
shall furnish to each Selling Holder a signed counterpart of any such comfort
letter, opinions or consents. Delivery of any such comfort letter, opinions or
consents, shall be subject to the recipient furnishing such written
representations or acknowledgments as are customarily provided by selling
shareholders who receive such comfort letters, opinions or consents.
4.9. 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.
4.10. Use reasonable best efforts to cause the Registrable
Securities covered by such registration statement (i) to be listed on the New
York Stock Exchange or, if the Common Stock is not then listed or admitted to
trading thereon, on the principal national securities exchange on which such
Common Stock is then listed or admitted to trading or, if such Common Stock is
not then listed or admitted to trading on any national securities exchange, on
the NASDAQ Stock Market, and (ii) to be registered with or approved by such
other United States or state governmental agencies or authorities as may be
necessary by virtue of the business
and operations of the Company to enable the Selling Holders to consummate the
disposition of the Registrable Securities.
4.11. Use the Company's reasonable efforts to provide a CUSIP
number for the Registrable Securities prior to the effective date of the first
registration statement including Registrable Securities.
4.12. Notify each Selling Holder of such Registrable Securities,
at any time when a prospectus relating thereto is required to be delivered under
the Securities Act, of the occurrence of an event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will 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 not
misleading and promptly made available to each Selling Holder any such
supplement or amendment.
4.13. Otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering a
period of twelve months, beginning within three months after the effective date
of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act.
4.14. Take such other actions as are reasonably required in order
to expedite or facilitate the disposition of Registrable Securities included in
each such registration.
Section 5. Holders' Obligations. It shall be a condition precedent
--------------------
to the obligations of the Company to effect a registration pursuant to this
Agreement with respect to the Registrable Securities of any Selling Holder that
such Selling Holder shall:
5.1. Furnish to the Company such information regarding such
Selling Holder, the number of the Registrable Securities owned by it, and the
intended method of disposition of such securities as shall be required to effect
the registration of such Selling Holder's Registrable Securities, and to
cooperate with the Company in preparing such registration.
5.2. Agree, in a Piggyback Registration, to sell their
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 Shares.
5.3. Execute the underwriting agreement agreed to by the Majority
Selling Holders (in the case of a registration under Section 2) or the Company
---------
and the Majority Selling Holders (in the case of a registration under Section
-------
3). In an underwriting agreement executed by both the Company and the Selling
Holders, representations and warranties made by the Company for the benefit of
the underwriter(s) shall also be made to and for the benefit of the Selling
Holders and representations and warranties made by the Selling Holders for the
benefit of the underwriter(s) shall also be made to and for the benefit of the
Company.
Section 6. Expenses of Registration. Expenses in connection with
------------------------
registrations pursuant to this Agreement shall be allocated and paid as follows:
6.1. With respect to each Demand Registration, the Company
shall bear and pay all expenses incurred in connection with any registration,
filing, or qualification of Registrable Securities for each Selling Holder,
including all registration, filing and National Association of Securities
Dealers, Inc. fees, all fees and expenses of complying with securities or blue
sky laws (including reasonable fees and disbursements of counsel in connection
with blue sky qualifications of the Registrable Securities), all word
processing, duplicating and printing expenses (including expenses of printing
prospectuses), messenger and delivery expenses, internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the fees and expenses incurred in
connection with the listing of the securities to be registered on each
securities exchange, the reasonable fees and disbursements of counsel for the
Company, and of the Company's independent public accountants, including the
expenses of "cold comfort" letters required by or incident to such performance
and compliance, the reasonable fees and expenses of any special experts retained
by the Company in connection with such registration, and fees and expenses of
other Persons retained by the Company (the "Registration Expenses"), but
excluding underwriting discounts and commissions relating to Registrable
Securities (which shall be paid by the Selling Holders); provided, however, that
-------- -------
the Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 2 if the registration is subsequently
---------
withdrawn at the request of the Majority Selling Holders (in which case all
Selling Holders shall bear such expense), unless Holders whose Registrable
Securities constitute a majority of the Registrable Securities then outstanding
agree that such withdrawn registration shall constitute one of the Demand
Registrations under Section 2 hereof. Any registration withdrawn at the request
---------
of the Company pursuant to Section 1(c) of the Recapitalization Agreement shall
not be deemed withdrawn at the request of the Majority Selling Holders. In
addition, if the first Demand Registration is the Initial Public Offering, the
Company shall pay fifty percent (50%) of the reasonable attorneys' fees and
expenses of one counsel (who shall be reasonably acceptable to the Company) for
the Selling Holders in such Demand Registration, excluding any attorneys'
fees and expenses of counsel for tax advice or analysis related to or in
connection with such Demand Registration.
6.2. The Company shall bear and pay all Registration Expenses
incurred in connection with any Piggyback Registrations pursuant to Section 3,
---------
but excluding underwriting discounts and commissions relating to Registrable
Securities (which shall be paid on a pro rata basis by the Selling Holders and
shall be on the same terms as those paid by the Company for Primary Securities
included in the registration, if any Primary Securities are included).
6.3. Any failure of the Company to pay any Registration
Expenses as required by this Section 6 shall not relieve the Company of its
---------
obligations under this Agreement.
Section 7. Indemnification; Contribution. If any Registrable
-----------------------------
Securities are included in a registration statement under this Agreement:
7.1. To the extent permitted by applicable law, the Company
shall indemnify and hold harmless each Selling Holder, each Person, if any, who
controls such Selling Holder within the meaning of the Securities Act, and each
officer, director, partner, member, employee, agent, representative and attorney
of such Selling Holder and such controlling Person, against any and all losses,
claims, damages, liabilities and expenses (joint or several), including
reasonable attorneys' fees and disbursements and reasonable expenses of
investigation, incurred by such Person pursuant to any actual or threatened
action, suit, proceeding or investigation, or to which any of the 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 of the following statements,
omissions or violations (collectively a "Violation"):
(a) 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;
(b) 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; or
(c) Any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any applicable state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
applicable state securities law;
provided, however, that the indemnification required by this Section 7.1 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 solely out of or is solely 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; provided, further, that the indemnity
-------- -------
agreement contained in this Section 7 shall not apply to any underwriter to the
---------
extent that any such loss is based on or arises out of an untrue statement or
alleged untrue statement of a material fact, or an omission or alleged omission
to state a material fact, contained in or omitted from any preliminary
prospectus if the final prospectus shall correct such untrue statement or
alleged untrue statement, or such omission or alleged omission, and a copy of
the final prospectus has not been sent or given to such person at or prior to
the confirmation of sale to such person if such underwriter was under an
obligation to deliver such final prospectus and failed to do so. The Company
shall also indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers, directors, agents and employees and each person who controls such
persons (within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Selling Holders.
7.2. To the extent permitted by applicable law, each Selling
Holder shall indemnify and hold harmless the Company, each of its directors,
each of its officers who shall have signed the registration statement, each
Person, if any, who controls the Company within the meaning of the Securities
Act, any other Selling Holder, any controlling Person of any such other Selling
Holder and each officer, director, partner, member, employee, agent,
representative and attorney of such other Selling Holder and such controlling
Person, against any and all losses, claims, damages, liabilities and expenses
(joint and several), including reasonable attorneys' fees and disbursements and
reasonable expenses of investigation, incurred by such Person pursuant to any
actual or threatened action, suit, proceeding or investigation, or 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; provided, however, that (x) the indemnification required
-------- -------
by this Section 7.2 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, and (y) in no event shall the amount of any
indemnity under this Section 7.2 exceed the gross proceeds from the applicable
-----------
offering received by such Selling Holder.
7.3. Promptly after receipt by an indemnified party under this
Section 7 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 Section 7, such indemnified party shall deliver to
---------
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
-------- -------
have the right to retain its own counsel, with the fees and disbursements and
expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time following the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
-------
7 but shall not relieve the indemnifying party of any liability that it may have
-
to any indemnified party otherwise than pursuant to this Section 7. 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
(30) 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 (i) the indemnifying
party has agreed to pay such fees and expenses or (ii) the indemnifying party
shall have failed to promptly assume the defense of such action, claim or
proceeding or (iii) 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
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
faithfully 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 in the reasonable
judgment of such indemnified party 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, 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.
7.4. If the indemnification required by this Section 7 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 Section 7:
---------
(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, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 7.1 and
-----------
Section 7.2, 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 7.4 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 7.4(i). 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.
(c) In no event shall the total of amounts paid pursuant to this
Section 7.4 by any Selling Holder exceed the gross proceeds from the applicable
-----------
offering received by such Selling Holder.
7.5. If indemnification is available under this Section 7, the
---------
indemnifying parties shall indemnify each indemnified party to the full extent
provided in this Section 7 without regard to the relative fault of such
---------
indemnifying party or indemnified party or any other equitable consideration
referred to in Section 7.4.
-----------
7.6. The obligations of the Company and the Selling Holders of
Registrable Securities under this Section 7 shall survive the completion of any
---------
offering of Registrable Securities pursuant to a registration statement under
this Agreement, and otherwise.
7.7. Nothing contained in this Section 7 shall be deemed to
---------
give the Company the right to refuse to file any registration statement pursuant
to Sections 2 or 3 or otherwise take any action required thereunder.
---------- -
Section 8. Holdback. Each Holder entitled pursuant to this Agreement
--------
to have Registrable Securities included in a registration statement prepared
pursuant to this Agreement, if so requested by the Underwriters' Representative
or Agent in connection with an offering of any securities covered by a
registration statement filed by Company, whether or not Holder's securities are
included therein, shall not effect any public sale or distribution of shares of
Common Stock or any securities convertible into or exchangeable or exercisable
for shares of Common Stock, including a sale pursuant to Rule 144 under the
Securities Act (except as part of such underwritten or agented registration),
during the 15-day period prior to, and during the 90-day period beginning on,
the date such registration statement is declared effective under the Securities
Act by the Commission, provided that such Holder is timely notified of such
--------
effective date in writing by the Company or such Underwriters' Representative or
Agent; and provided further that the 90-day period may be extended for up to 90
-------- -------
additional days (for a total of 180 days from the effective date of the
registration statement) if the Underwriters' Representative or Agent in good
faith advises the Company that such extension is advisable and requests an
extension and such Holder is timely notified of the extension of the period and
the ending date of such period as extended.
Section 9. Amendment, Modification and Waivers; Further Assurances.
-------------------------------------------------------
(a) This Agreement may be amended with the consent of the Company and
the Company may 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 a majority in amount 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.
9.1. No Conflicts; Other Registration Rights.
---------------------------------------
(a) The Company shall not enter into any agreement, contract or
understanding, written or unwritten, inconsistent with any provision of this
Agreement.
(b) The Company shall not grant any right of registration under the
Securities Act relating to any of its securities to any Person unless the
Holders shall be entitled to have included in any such registration the
Registrable Securities owned by them in accordance with Section 3 of this
---------
Agreement.
9.2. Public Information. The Company covenants that it will
------------------
file the reports required to be filed by it under the Securities Act or the
Exchange Act and the rules and regulations adopted by the Commission thereunder
and will take such further action as any Holder may reasonably request, all to
the extent required from time to time to enable the Holders to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 or, if applicable, Regulation S under
the
Securities Act, as such Rule or Regulation may be amended from time to time, or
(ii) any other rule or regulation hereafter adopted by the Commission permitting
the sale of securities without registration under the Securities Act. At the
request of any Holder, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
Section 10. Assignment of Registration Rights. A Holder may assign
---------------------------------
its rights under the Agreement to any Person to whom the Holder sells or
Transfers any of the Registrable Securities owned by it (other than a sale of
securities pursuant to Rule 144 under the Securities Act or a registration
pursuant to this Agreement or a sale or Transfer in connection with the sale of
all or substantially all of the outstanding Shares of the Company); provided,
--------
however, that no assignment shall increase the number of registrations otherwise
-------
required to be provided by the Company hereunder or increase, with respect to
any registration statement filed by the Company, the amount of Registration
Expenses payable by the Company. In addition, any Holder may assign its rights
hereunder as additional collateral in connection with the pledge of securities
to NationsBank, N.A. (South), as Agent, under the Credit Agreement dated as of
July 31, 1996 between the Company, the Lenders named therein, and NationsBank,
N.A. (South), as Agent, Swingline Lender and Issuing Bank.
Section 11. Miscellaneous.
-------------
11.1. 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.
11.2. Consent to Jurisdiction and Service of Process. Any action,
----------------------------------------------
suit or claim arising out of or relating to this Agreement shall be instituted
in any federal court of the State of New York or in any state court located in
the State of New York, and each party agrees not to assert, by way of motion, as
a defense or otherwise, in any such action, suit or proceeding, any claim that
it is not subject personally to the jurisdiction of such court, that the action,
suit or proceeding is brought in an inconvenient forum, that the venue of the
action, suit or proceeding is improper or that this Agreement or the subject
matter hereof may not be enforced in or by such court. Each party further
irrevocably submits to the jurisdiction of such court in any such action, suit
or proceeding. Any and all service of process and any other notice in any such
action, suit or proceeding shall be effective against any party given personally
or by registered or certified mail, return receipt requested, or by any other
means of mail that requires a signed receipt, postage prepaid, mailed to such
party as herein provided, or by personal service on such party. Nothing herein
contained shall be deemed to affect the right of
any party to serve process in any manner permitted by law or to commence legal
proceedings or otherwise proceed against any other party in any other
jurisdiction.
11.3. 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 delivery to the relevant
address specified on Schedule I to this Agreement. 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: at the time delivered, if personally delivered or mailed; when
receipt is acknowledged, if sent by facsimile; and the next business day after
timely delivery to the courier, if sent by overnight air courier guaranteeing
next business day delivery.
11.4. Entire Agreement; Integration. This Agreement supersedes
-----------------------------
all prior agreements between or among any of the parties hereto with respect to
the subject matter contained herein and therein, and such agreements embody the
entire understanding among the parties relating to such subject matter.
11.5. 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 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.
11.6. Section Headings. Section headings are for convenience of
----------------
reference only and shall not affect the meaning of any provision of this
Agreement.
11.7. Counterparts. This Agreement may be 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.
11.8. Severability. If any provision of this Agreement shall be
------------
invalid or unenforceable, such invalidity or unenforceability shall not affect
the validity and enforceability of the remaining provisions of this Agreement,
unless the result thereof would be unreasonable, in which case the parties
hereto shall negotiate in good faith as to appropriate amendments hereto.
11.9. Filing. A copy of this Agreement and of all amendments thereto
------
shall be filed at the principal executive office of the Company.
11.10. Termination. This Agreement may be terminated at any time
-----------
by a written instrument signed by the Holders owning a majority in amount of
Registrable Shares. Unless sooner terminated in accordance with the preceding
sentence, this Agreement (other than Section 7 hereof) shall terminate in its
---------
entirety on such date as there shall be no Registrable Securities outstanding,
provided that any shares of Common Stock previously subject to this Agreement
shall not be Registrable Securities following the sale of any such shares in an
offering registered pursuant to this Agreement.
11.11. Attorneys' Fees. In any action or proceeding brought to
---------------
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, 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.
11.12. No Third Party Beneficiaries. Except as expressly set forth
----------------------------
herein with respect to Holders, 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, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first written above.
FIREARMS TRAINING SYSTEMS, INC.
By: /s/ Xxx Xxxxx
--------------------------
Name: Xxx Xxxxx
Title: President and Cheif
Executive Officer
CENTRE CAPITAL INVESTORS II, L.P.,
CENTRE CAPITAL OFFSHORE INVESTORS II, L.P.
CENTRE CAPITAL TAX-EXEMPT INVESTORS II, L.P.
by Centre Partners II, L.P. as general
partner of such partnerships
by Centre Partners Management LLC,
attorney-in-fact
by /s/ Xxxxxxxx X. Xxxxx
-------------------------
Xxxxxxxx X. Xxxxx
Managing Director
CENTRE PARTNERS COINVESTMENT, L.P.
by Centre Partners II, LLC, as general
partner
by /s/ Xxxxxxxx X. Xxxxx
-----------------------------
Xxxxxxxx X. Xxxxx
Managing Director
SCHEDULE I
PARTY ADDRESS
----- -------
Institutional Holders:
CENTRE CAPITAL INVESTORS II, L.P c/o Centre Partners Management
LLC
CENTRE CAPITAL OFFSHORE INVESTORS II, L.P. 00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
CENTRE CAPITAL TAX-EXEMPT INVESTORS II, L.P. Facsimile No: 212-332-5801
CENTRE PARTNERS COINVESTMENT, L.P. Attn: Xxxxxxxx Xxxxx
Company:
FIREARMS TRAINING SYSTEMS, INC. 0000 XxXxxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Facsimile No: 000-000-0000
Attn: President
