EXHIBIT 4.4
XXXXX HOLDINGS, INC.
REGISTRATION AGREEMENT
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THIS AGREEMENT is made as of June 11, 1998, between Xxxxx Holdings,
Inc., a Nevada corporation (the "Company"), and Madison Dearborn Capital
Partners, L.P., a Delaware limited partnership ("MDCP").
The parties hereto agree as follows:
1. Demand Registrations.
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(a) Requests for Registration. At any time 181 days after the Company
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has completed a public offering of its Common Stock under the Securities Act of
1933, as amended (the "Securities Act"), the holders of a majority of the
Registrable Securities may request registration under the Securities Act of all
or any portion of their Registrable Securities on Form S-1 or any similar long-
form registration ("Long-Form Registrations"), and the holders of a majority of
the Registrable Securities may request registration under the Securities Act of
all or any portion of their Registrable Securities on Form S-2 or S-3 or any
similar short-form registration ("Short-Form Registrations") if available. All
Long-Form Registrations and Short-Form Registrations are referred to herein as
"Demand Registrations." Any Demand Registration may provide for offerings to be
made on a continuous or delayed basis under Rule 415 under the Securities Act,
if permitted by applicable rules and regulations under the Securities Act. Each
request for a Demand Registration shall specify the approximate number of
Registrable Securities requested to be registered. Within ten days after receipt
of any such request, the Company shall give written notice of such requested
registration to all other holders of Registrable Securities, if any, and shall
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice. The holders of a majority of the
Registrable Securities included in any Demand Registration shall have the right
to request that any Demand Registration be an underwritten registration.
(b) Long-Form Registrations. The holders of a majority of the
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Registrable Securities shall be entitled to request up to three Long-Fom
Registrations in which the Company shall pay all Registration Expenses ("Long-
Form Registrations") in any year; provided that the aggregate offering value of
the Registrable Securities requested to be registered in any Long-Form
Registration must equal at least $10,000,000. A registration shall not count as
one of the permitted Long-Form Registrations until it has become effective and
unless the holders of Registrable Securities are able to register and sell at
least 80% of the Registrable Securities requested to be included in such
registration; provided that in any event the Company shall pay all Registration
Expenses in connection with any registration initiated as a Long-Form
Registration whether or not it has become effective and whether or not such
registration has counted as one of the permitted Long-Form Registrations.
(c) Short-Form Registrations. In addition to the Long-Form
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Registrations provided pursuant to paragraph 1(b), the holders of a majority of
the Registrable Securities shall be entitled to request up to two Short-Form
Registrations in which the Company shall pay all Registration Expenses in any
year. Demand Registrations shall be Short-Form Registrations whenever the
Company is permitted to use any applicable short form. The Company shall use
its best efforts to make Short-Form Registrations on Form S-3 available for the
sale of Registrable Securities.
(d) Priority on Demand Registrations. If a Demand Registration is an
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underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold in such offering, the Company shall include in such registration
prior to the inclusion of any securities which are not Registrable Securities
the number of Registrable Securities requested to be included which in the
opinion of such underwriters can be sold, pro rata among the respective holders
thereof on the basis of the amount of Registrable Securities owned by each such
holder. Any Persons other than holders of Registrable Securities who participate
in Demand Registrations which are not at the Company's expense must pay their
share of the Registration Expenses as provided in paragraph 4 hereof.
(e) Restrictions on Demand Registration. The Company shall not be
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obligated to effect any Demand Registration within 180 days after the effective
date of a previous Demand Registration. The Company may postpone for up to 60
days the filing or the effectiveness of a registration statement for a Demand
Registration or suspend the use of any prospectus included in a registration
statement if the Company's board of directors determines in its reasonable good
faith judgment that such Demand Registration would reasonably be expected to
have a material adverse effect on any proposal or plan by the Company or any of
its subsidiaries to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer,
reorganization or similar transaction; provided that in the event of such a
delay or suspension, the holders of a majority of the Registrable Securities
included in such Demand Registration shall be entitled to withdraw such request
and, if such request is withdrawn by such holders, such Demand Registration
shall not count as one of the permitted Demand Registrations hereunder and the
Company shall pay all Registration Expenses in connection with such
registration. The Company may delay or suspend a Demand Registration hereunder
only once in any twelve-month period.
(f) Selection of Underwriters. In the case of a Demand Registration,
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the holders of a majority of the Registrable Securities included in such Demand
Registration shall have the right to select the investment banker(s) and
manager(s) to administer the offering, subject to the Company's approval, which
shall not be unreasonably withheld.
2. Holdback Agreements.
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(a) The holders of Registrable Securities shall not effect any public
sale or distribution (including sales pursuant to Rule 144) of equity securities
of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 120-day
period beginning on the effective date of any underwritten Demand
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Registration (except as part of such underwritten registration), unless the
underwriters managing the registered public offering otherwise agree.
(b) The Company agrees not effect any public sale or distribution of
its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
90-day period beginning on the effective date of any underwritten Demand
Registration (except as part of such underwritten registration or pursuant to
registrations on Form S-4 or Form S-8 or any successor form), unless the
underwriters managing the registered public offering otherwise agree.
3. Registration Procedures. Whenever the holders of Registrable
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Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof, and pursuant thereto the Company shall
as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective (provided
that before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company shall furnish to the counsel selected by the
holders of Registrable Securities all such documents proposed to be filed, which
documents shall be subject to the review and comment of such counsel);
(b) notify the holders of Registrable Securities of the effectiveness
of each registration statement filed hereunder and prepare and file with the
Securities and Exchange 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 a period of not less
than 180 days 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 such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as the holders of Registrable
Securities may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by the holders of Registrable Securities;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
the holders of Registrable Securities reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to enable
the holders of Registrable Securities to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such seller (provided that
the Company shall not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subparagraph, (ii) subject itself to taxation in any such jurisdiction or (iii)
consent to general service of process in any such jurisdiction);
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(e) notify the holders of Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of the holders of Registrable Securities, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the Nasdaq National Market;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
Registrable Securities or the underwriters, if any, reasonably request in order
to expedite or facilitate the disposition of such Registrable Securities
(including effecting a stock split or a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
the holders of Registrable Securities or any such underwriter, all financial and
other records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees and independent accountants
to supply all information reasonably requested by any such seller or any such
underwriter, attorney, accountant or agent in connection with such registration
statement;
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit the holders of Registrable Securities to participate in the
preparation of such registration or comparable statement and to require the
insertion therein of material, furnished to the Company in writing, which in the
reasonable judgment of such holder and its counsel should be included; and
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order.
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4. Registration Expenses.
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(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company (all such expenses being
herein called "Registration Expenses"), shall be borne as provided in this
Agreement, except that the Company shall, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance and
the expenses and fees for listing the securities to be registered on each
securities exchange on which similar securities issued by the Company are then
listed or on the Nasdaq National Market. Registration Expenses shall not
include underwriting discounts and commissions and in no event shall the Company
be required to pay any such underwriting discounts or commissions.
(b) In connection with each Demand Registration in respect of which
the Company is obligated to pay all Registration Expenses of the holders of
Registrable Securities, the Company shall reimburse the holders of Registrable
Securities for the reasonable fees and disbursements of one counsel chosen by
the holders of Registrable Securities.
(c) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
5. Indemnification.
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(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by the holders of Registrable
Securities expressly for use therein or by the holders of Registrable
Securities's failure to deliver a copy of the registration statement or
prospectus or any amendments or supplements thereto after the Company has
furnished the holders of Registrable Securities with a sufficient number of
copies of the same. In connection with an underwritten offering, the Company
shall indemnify such underwriters, their officers and directors and each Person
who controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Securities.
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(b) In connection with any registration statement in which the holders
of Registrable Securities is participating, the holders of Registrable
Securities shall furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with any
such registration statement or prospectus and, to the extent permitted by law,
shall indemnify the Company, its directors and officers and each Person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses resulting from any untrue or
alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by the holders
of Registrable Securities; provided that the obligation to indemnify shall be
limited to the net amount of proceeds received by the holders of Registrable
Securities from the sale of Registrable Securities pursuant to such registration
statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities. The Company
also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
6. Participation in Underwritten Registrations. No Person may
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participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that the
holders of Registrable Securities shall not be required to make any
representations or warranties to the Company or the underwriters (other than
representations and warranties regarding the holders of Registrable Securities
and its intended
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method of distribution) or to undertake any indemnification obligations to the
Company or the underwriters with respect thereto, except as otherwise provided
in paragraph 5 hereof.
7. Definitions.
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(a) "Person" means on individual, a partnership, a corporation, a
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limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
(b) "Registrable Securities" means (i) the Common Stock, par value
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$.01 per share (the "Common Stock"), of the Company held by MDCP as of the date
hereof, (ii) any Common Stock issued upon conversion of the 12% Cumulative
Redeemable Senior Preferred of the Company held by MDCP as of the date hereof,
(iii) any Comon Stock issued upon conversion of the 12% Cumulative Redeemable
Junior Preferred of the Company held by MDCP as of the date hereof, (iv) any
Common issued upon exercise of any warrants of the Company held by MDCP as of
the date hereof, (v) any Common Stock acquired by MDCP from any officer of the
Company, and (vi) any Common Stock issued or issuable with respect to the
securities referred to in clauses (i) through (v) above by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when they have been distributed to the public pursuant to a offering
registered under the Securities Act or sold to the public through a broker,
dealer or market maker in compliance with Rule 144 under the Securities Act (or
any similar rule then in force) or repurchased by the Company or any Subsidiary.
For purposes of this Agreement, a Person shall be deemed to be a holder of
Registrable Securities, and the Registrable Securities shall be deemed to be in
existence, whenever such Person has the right to acquire directly or indirectly
such Registrable Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of Registrable Securities hereunder.
8. Miscellaneous.
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(a) No Inconsistent Agreements. The rights granted hereunder are in
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addition to, and not in limitation of, any registration rights granted to MDCP
under any prior agreement with the Company. The Company shall not hereafter
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the holders of Registrable Securities in
this Agreement.
(b) Adjustments Affecting Registrable Securities. The Company shall
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not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include its Registrable Securities in a
registration undertaken pursuant to this Agreement or which would materially and
adversely affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
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(c) Remedies. Any Person having rights under any provision of this
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Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein, the
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provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and the holders of a majority of the Registrable
Securities.
(e) Successors and Assigns. All covenants and agreements in this
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Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(f) Severability. Whenever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) Counterparts. This Agreement may be executed simultaneously in
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two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement
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are inserted for convenience only and do not constitute a part of this
Agreement.
(i) GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
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CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND THE
EXHIBITS AND SCHEDULES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF DELAWARE OR
ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE.
(j) Notices. All notices, demands or other communications to be given
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or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
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communications shall be sent to the Company and to the holders of Registrable
Securities at the addresses indicated below:
If to the Company:
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Xxxxx Holdings, Inc.
00000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: President
If to the holders of Registrable Securities:
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Madison Dearborn Partners, Inc.
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxx
Xxxxxx X. Xxxxxxx
With a copy (which shall not constitute notice to the holders of
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Registrable Securities) to:
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Xxxxxxxx & Xxxxx
000 X. Xxxxxxxx Xx.
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, P.C.
Xxxxx X. Xxxx
or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending party.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXX HOLDINGS, INC.
By /s/ Xxxxxx Xxxxxxx
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Its__________________________
MADISON DEARBORN CAPITAL
PARTNERS, L.P.
By: Madison Dearborn Partners, L.P.
Its: General Partner
By: Madison Dearborn Partners, Inc.
Its: General Partner
By /s/ Xxxxxx Xxxxxxx
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Its__________________________
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