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EXHIBIT 10.2
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MSX INTERNATIONAL, INC.
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
NOVEMBER 28, 2000
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TABLE OF CONTENTS
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RECITALS 1
ARTICLE I DEFINITIONS 1
1.1 Defined Terms in Stockholders' Agreement 1
1.2 Definitions 2
1.3 Cross-References 3
ARTICLE II DEMAND REGISTRATIONS 3
2.1 Requests for Registration 3
2.2 Long-Form Registrations 4
2.3 Short-Form Registrations 4
2.4 Effective Registration Statement 5
2.5 Priority on Demand Registrations 5
2.6 Selection of Underwriters 6
2.7 Black-Out Rights and Postponement 6
ARTICLE III PIGGYBACK REGISTRATIONS 7
3.1 Right to Piggyback 7
3.2 Piggyback Expenses 7
3.3 Priority on Primary Registrations 7
3.4 Priority on Secondary Registrations 8
ARTICLE IV HOLDBACK AGREEMENTS 9
4.1 Holdback 9
4.2 Company Holdback 9
ARTICLE V REGISTRATION PROCEDURES 9
ARTICLE VI REGISTRATION EXPENSES 13
6.1 Fees Generally 13
6.2 Counsel Fees 13
ARTICLE VII UNDERWRITTEN OFFERINGS 14
7.1 Demand Underwritten Offerings 14
7.2 Incidental Underwritten Offerings 14
ARTICLE VIII INDEMNIFICATION 15
8.1 Indemnification by the Company 15
8.2 Indemnification by a Selling Stockholder 16
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8.3 Indemnification Procedure 17
8.4 Underwriting Agreement 17
8.5 Contribution 18
8.6 Periodic Payments 19
ARTICLE IX RULE 144 19
ARTICLE X PARTICIPATION IN UNDERWRITTEN REGISTRATIONS 19
ARTICLE XI MISCELLANEOUS 20
11.1 No Inconsistent Agreements 20
11.2 Adjustments Affecting Registrable Securities 20
11.3 Specific Performance 20
11.4 Actions Taken; Amendments and Waivers 20
11.5 Successors and Assigns 21
11.6 Notices 21
11.7 Headings 22
11.8 Gender 22
11.9 Invalid Provisions 22
11.10 Governing Law 23
11.11 Service of Process 23
11.12 Waiver of Jury Trial 23
11.13 Counterparts 24
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") effective November 28, 2000 by and among MSX International, Inc.,
a Delaware corporation (the "Company"), Court Square Capital Limited, a Delaware
corporation ("Court Square"), each of the individuals whose name appears on the
signature pages hereto under the heading "Management Group", and each of the
individuals whose name appears on the signature pages hereto under the heading
"CVC Group". Capitalized terms are used as defined in Article I hereto.
RECITALS
WHEREAS, certain of the Stockholders, certain former
stockholders of the Company and the Company entered into a Registration Rights
Agreement, dated as of January 3, 1997 (the "Original Agreement"), to provide
certain registration rights to the parties thereto;
WHEREAS, in connection with the transfer of shares of Common
Stock and Series A Preferred by MascoTech, Inc., a Delaware corporation, to
Court Square pursuant to a Stock Purchase Agreement, dated as of August 1, 2000,
by and between CVC and MascoTech, as amended, and the transfer of shares of
Common Stock and Series A Preferred by CVC to Court Square pursuant to a Stock
Purchase Agreement, dated as of November 28, 2000, by and between CVC and Court
Square, the Stockholders and the Company desire to amend and restate the
Original Agreement, all in accordance with Section 11.4(b) of the Original
Agreement; and
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, the parties hereto are executing and delivering an Amended and
Restated Stockholders' Agreement among the parties hereto and dated the date
hereof (as amended, modified or supplemented from time to time, the
"Stockholders' Agreement");
NOW THEREFORE, in connection with the Stockholders' Agreement
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
I.1 DEFINED TERMS IN STOCKHOLDERS' AGREEMENT.
Unless otherwise defined herein, defined terms used in this
Agreement shall have the meanings set forth in the Stockholders' Agreement.
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I.2 DEFINITIONS.
The following capitalized terms, when used in this Agreement,
have the respective meanings set forth below (such definitions to be equally
applicable to both singular and plural forms of the terms defined):
"Additional Management Stockholder" means an Additional
Stockholder who is an officer, director or employee of the Company or any of its
Subsidiaries.
"Additional Stockholder" means any person who has executed a
Joinder Agreement as an Additional Stockholder pursuant to Section 6.2 of the
Stockholders' Agreement, and its direct and indirect Permitted Transferees, so
long as any such Person shall hold Registrable Securities, and only to the
extent that (i) the Company has granted such person registration rights as a
Stockholder hereunder and (ii) such Person has executed a Registration Rights
Joinder Agreement.
"Initial Public Offering" means the first time a registration
statement filed under the Securities Act with the Commission respecting an
offering, whether primary or secondary, of Common Stock of the Company (or
securities convertible, exercisable or exchangeable for or into Common Stock of
the Company or rights to acquire Common Stock of the Company or such
securities), which is underwritten on a firmly committed basis, is declared
effective and the securities so registered are issued and sold.
"Institutional Stockholders" has the meaning provided in the
Stockholders' Agreement.
"Qualifying Offering" has the meaning provided in the
Stockholders' Agreement.
"Registrable Securities" means, at any time, the shares of
Class A Common (including all series thereof) and shares of Class B Common
(including all series thereof) then issued and outstanding or which are issuable
upon the conversion, exercise or exchange of Equity Equivalents (to the extent
then so convertible, exercisable or exchangeable) and any securities into which
such Class A Common or Class B Common shall have been changed or any securities
resulting from any reclassification or recapitalization of such Class A Common
or Class B Common; provided, that "Registrable Securities" shall not include any
shares of Class A Common or Class B Common obtained or transferred pursuant to
an effective registration statement under the Securities Act or in a Rule 144
Transaction, and provided, further, that "Registrable Securities" shall not
include any shares of Class A Common or Class B Common or other securities which
are held by a Person who is not a Stockholder.
"Registration Rights Joinder Agreement" means a Registration
Rights Joinder Agreement in the form attached hereto as Exhibit A.
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"Required Institutional Stockholders" means, as of the date of
any determination thereof, Institutional Stockholders which hold Registrable
Securities representing at such time at least a majority (by number of shares)
of the Registrable Securities, on a Fully Diluted Basis, held by all
Institutional Stockholders.
"Stockholders" means the Institutional Stockholders, the
Management Stockholders, the Additional Stockholders and any transferee of any
of the foregoing persons who has acquired Registrable Securities in accordance
with the Stockholders' Agreement and who has executed a Registration Rights
Joinder Agreement.
I.3 CROSS-REFERENCES.
The following defined terms, when used in this Agreement,
shall have the meaning ascribed to them in the corresponding Sections of this
Agreement listed below:
"Black-Out Notice" -- Section 2.7(a)
"Company" -- Preamble
"Court Square" -- Preamble
"Demand Registrations" -- Section 2.1(a)
"Long-Form Registrations" -- Section 2.1(b)
"Original Agreement" -- Recitals
"Piggyback Holders" -- Section 3.1
"Piggyback Registration" -- Section 3.1
"Purchase Agreement" -- Recitals
"Registration Expenses" -- Section 6.1
"Requesting Investors" -- Section 2.1(a)
"Short-Form Registrations" -- Section 2.1(b)
"Stockholders' Agreement" -- Recitals
ARTICLE II
DEMAND REGISTRATIONS
II.1 REQUESTS FOR REGISTRATION.
(a) At any time after the date hereof, the Required
Institutional Stockholders (the "Requesting Investors") may request that the
Company effect a Qualifying Offering, and the Company shall use all reasonable
efforts to effect a Qualifying Offering within 90 days after its receipt of such
request. Within 10 days after its receipt of such request, the Company will give
written notice of such request to all other holders of Registrable Securities.
The Company will use all reasonable efforts to include in the Qualifying
Offering (i) all Registrable Securities which the Requesting Investors have
requested to be included therein and (ii) all other Registrable
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Securities with respect to which the Company has received written requests for
inclusion therein by the Stockholders within thirty (30) days after the receipt
of the Company's notice, subject in each case to the provisions of Section 2.5.
The Company will pay all Registration Expenses in connection with a Qualifying
Offering requested in accordance with Section 2.1(a). All registrations
requested pursuant to this Section 2.1 are referred to herein as "Demand
Registrations."
(b) Subject to Sections 2.2, 2.3 and 2.7, at any time from and
after the date which is 91 days after the closing of an Initial Public Offering,
the Required Institutional Stockholders may request registration under the
Securities Act of all or part of their Registrable Securities (i) on Form S-1 or
S-2 or any similar long-form registration statement (any such registration, a
"Long-Form Registration"), and (ii) on Form S-3 or any similar short-form
registration statement (any such registration, a "Short-Form Registration"), if
the Company qualifies to use such short form. Within 10 days after its receipt
of any such request, the Company will give written notice of such request to all
other holders of Registrable Securities. Thereafter, the Company will use all
reasonable efforts to effect the registration under the Securities Act on the
form requested by the Requesting Investors, and to include in such registration,
(i) all Registrable Securities which the Requesting Investors have so requested
to be included therein and (ii) all other Registrable Securities with respect to
which the Company has received written requests for inclusion therein by the
Stockholders within thirty (30) days after their receipt of the Company's
notice, subject in each case to the provisions of Section 2.5.
(c) Any Requesting Investor which requests a Demand
Registration under this Article II may, at any time prior to the effective date
of the registration statement relating to such registration, revoke such request
by providing written notice to the Company; provided, however, that
notwithstanding such revocation, such Demand Registration shall be deemed a
request for purposes of Section 2.2 unless, after consultation with the Company
and any proposed underwriter, the Requesting Investor in good faith determines
that the Registrable Securities which it has requested to be registered would
not be sold pursuant to such Demand Registration within a reasonable amount of
time or at a price acceptable to such Requesting Investor.
(d) Any request for a Demand Registration pursuant to this
Article II shall specify the number of shares of Registrable Securities proposed
to be sold by the Requesting Investor and the intended method of disposition
thereof.
II.2 LONG-FORM REGISTRATIONS.
The Required Institutional Stockholders will be entitled to
request pursuant to this Article II up to three Long-Form Registrations. The
Company will pay all Registration Expenses in connection with any such Long-Form
Registrations. All Long-Form Registrations (unless otherwise requested by the
relevant Requesting Investor) shall be underwritten registrations.
II.3 SHORT-FORM REGISTRATIONS.
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In addition to the Long-Form Registrations provided pursuant
to Section 2.2, the Required Institutional Stockholders will be entitled to
request an unlimited number of Short-Form Registrations in which the Company
will pay all Registration Expenses. Demand Registrations will be Short-Form
Registrations whenever the Company is qualified to use any applicable short
form. Once the Company has become subject to the reporting requirements of the
Exchange Act, the Company will use its reasonable best efforts to make
Short-Form Registrations available for the sale of Registrable Securities.
II.4 EFFECTIVE REGISTRATION STATEMENT.
No Demand Registration shall be deemed to have been effected
for purposes of Section 2.2:
(i) unless a registration statement with respect thereto has
become effective;
(ii) if, after it has become effective, any stop order,
injunction or other order or requirement of the Commission or
other governmental agency or court for any reason, affecting
any of the securities covered by such registration statement,
is issued or threatened by the Commission or other
governmental agency or court;
(iii) if the Company delivers a Black-Out Notice with respect
to such requested registration;
(iv) if the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection
with such registration are not satisfied by reason of a
failure by or inability of the Company to satisfy any of such
conditions, or the occurrence of an event outside the
reasonable control of the relevant Requesting Investor;
(v) the revocation notice described in the proviso to Section
2.1(c) has been delivered by the Requesting Investor; or
(vi) if the Requesting Investor is not able to register and
sell at least ninety percent (90%) of the amount of
Registrable Securities which were requested to be included in
such registration;
provided that the Company will pay all Registration Expenses in connection with
any registration
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if pursuant to this Section 2.4 the registration is deemed not to have been
effected.
II.5 PRIORITY ON DEMAND REGISTRATIONS.
(a) The Company will not include in any Demand Registration
any securities which are not Registrable Securities without the written consent
of the Required Institutional Stockholders.
(b) If the Requesting Investors and other holders of
Registrable Securities request Registrable Securities to be included in a Demand
Registration which is an underwritten offering and the managing underwriters
advise the Company in writing that in their opinion the number of Registrable
Securities requested to be included exceeds the number of Registrable Securities
which can be sold in such offering within a price range acceptable to the
Required Institutional Stockholders, the Company will include any securities to
be sold in such Demand Registration in the following order: (i) first, the
Registrable Securities owned by the Requesting Investors; (ii) second, the
Registrable Securities requested to be included in such registration by other
Stockholders, provided, that if the managing underwriters determine in good
faith that a lower number of Registrable Securities requested to be included by
other Stockholders should be included, then only that lower number of
Registrable Securities requested to be included by other Stockholders shall be
included in such registration, and such other Stockholders shall participate in
the registration pro rata based upon their total ownership, on a Fully Diluted
Basis, of Registrable Securities, provided, further, that if the managing
underwriters determine in good faith that a lower number of Registrable
Securities held by Management Stockholders and/or Additional Management
Stockholders than such pro rata portion should be included, then such lower
number shall be included and, as a result thereof, a greater number of
Registrable Securities owned by the other Stockholders may be sold; (iii) third,
the securities the Company proposes to sell and (iv) fourth, any securities
other than Registrable Securities to be sold by persons other than the Company
included pursuant to Section 2.5(a) hereof. Any Person other than Stockholders
including any securities in such registration pursuant to Article II hereof must
pay its share of the Registration Expenses as provided in Article VI hereof.
II.6 SELECTION OF UNDERWRITERS.
The Requesting Investors will have the right to select the
underwriters and the managing underwriter to administer any Demand Registration
(which underwriters and managing underwriter shall be reasonably acceptable to
the Company).
II.7 BLACK-OUT RIGHTS AND POSTPONEMENT.
(a) The Company shall not be required to provide a Demand
Registration if the Company, within the 90-day period preceding the date of a
request for a Demand Registration, has effected a registration of securities in
which the Requesting Investors were entitled to participate to the fullest
extent pursuant to Demand Registration rights under Article II
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hereof or Piggyback Registration rights under Article III hereof.
(b) The Company may, upon written notice (a "Black-Out
Notice") to the Requesting Investor requesting a Demand Registration, require
such Requesting Investor to withdraw such Demand Registration upon the good
faith determination by the Company that such postponement is necessary (i) to
avoid disclosure of material non-public information or (ii) as a result of a
pending material financing or acquisition transaction, and in each case, the
Required Institutional Stockholders may not request another Demand Registration
for a period of up to sixty (60) days, as specified by the Company in such
Black-Out Notice. The Company may only give a Black-Out Notice where the giving
of such notice has been specifically approved by the Company's Board of
Directors which for so long as the Institutional Stockholders shall have the
right to designate directors pursuant to Section 5.1 of the Stockholders'
Agreement and they are exercising such right to designate, shall require an
Institutional Affirmative Board Vote. Upon receipt of a Black-Out Notice, the
Demand Registration shall be deemed to be rescinded and retracted and shall not
be counted as a Demand Registration for any purpose. The Company may not deliver
more than one Black-Out Notice in any twelve-month period.
ARTICLE III
PIGGYBACK REGISTRATIONS
III.1 RIGHT TO PIGGYBACK.
Whenever the Company proposes (other than pursuant to a Demand
Registration or an Initial Public Offering (unless otherwise agreed by the
Company)) to register any of its equity securities under the Securities Act
(whether for the Company's own account (other than on Forms S-4 or S-8 or any
successor forms), or for the account of any other Person)(a "Piggyback
Registration"), the Company will give prompt written notice to all Institutional
Stockholders, Management Stockholders and Additional Stockholders (the
"Piggyback Holders") of its intention to effect such a registration, and such
notice shall offer the Piggyback Holders the opportunity to register on the same
terms and conditions such number of shares of Registrable Securities as such
Piggyback Holder may request. The Company will include in such registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 30 days after the receipt by such
Piggyback Holder of the Company's notice, subject to the provisions of Sections
3.3 and 3.4.
III.2 PIGGYBACK EXPENSES.
The Registration Expenses of the holders of Registrable
Securities will be paid by the Company in all Piggyback Registrations.
III.3 PRIORITY ON PRIMARY REGISTRATIONS.
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If a Piggyback Registration is an underwritten primary
registration on behalf of the Company, and the managing underwriters advise the
Company in writing that in their opinion the number of securities requested to
be included in such registration are such that the success of the offering would
be materially and adversely affected, the Company will include any securities to
be sold in such registration in the following order: (i) first, the securities
the Company proposes to sell, (ii) second, the Registrable Securities requested
to be included in such registration by the Piggyback Holders, provided that, if
the managing underwriters in good faith determine that a lower number of
Registrable Securities should be included, then the Company shall be required to
include in such registration only that lower number of Registrable Securities,
and the Piggyback Holders shall participate in the registration pro rata based
upon their total ownership, on a Fully Diluted Basis, of Registrable Securities,
provided, further, that if the managing underwriters determine in good faith
that a lower number of Registrable Securities held by Management Stockholders
and/or Additional Management Stockholders than such pro rata portion should be
included, then such lower number shall be included and, as a result thereof, a
greater number of Registrable Securities owned by the other Stockholders shall
be included and (iii) third, other securities requested to be included in such
registration.
III.4 PRIORITY ON SECONDARY REGISTRATIONS.
If a Piggyback Registration is an underwritten secondary
registration on behalf of holders of the Company's securities and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration are such that the
success of the offering would be materially and adversely affected, the Company
will include any securities to be sold in such registration in the following
order: (i) first, the securities of such holders, (ii) second, the Registrable
Securities requested to be included in such registration by the Piggyback
Holders pursuant to Section 3.1 hereof, provided that, if the managing
underwriters in good faith determine that a lower number of Registrable
Securities should be included, then the Company shall be required to include in
such registration only that lower number of Registrable Securities, and the
Piggyback Holders shall participate in the registration pro rata based upon
their total ownership, on a Fully Diluted Basis, of Registrable Securities,
provided, further, that if the managing underwriters determine in good faith
that a lower number of Registrable Securities held by Management Stockholders
and/or Additional Management Stockholders than such pro rata portion should be
included, then such lower number shall be included and, as a result thereof, a
greater number of Registrable Securities owned by the other Stockholders may be
sold and (iii) third, other securities requested to be included in such
registration.
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ARTICLE IV
HOLDBACK AGREEMENTS
IV.1 HOLDBACK.
Each holder of Registrable Securities agrees not to effect any
public sale or distribution of Registrable Securities, or any securities
convertible, exchangeable or exercisable for or into such securities, during the
seven days prior to, and the 90-day period beginning on, the effective date of
an Initial Public Offering or any underwritten Demand Registration or any
underwritten Piggyback Registration in which such holder had an opportunity to
participate without cutback under Article III hereof (in each case except as
part of such underwritten registration), unless the managing underwriters of the
registered public offering otherwise agree.
IV.2 COMPANY HOLDBACK.
The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible,
exchangeable or exercisable for or into such securities, during the fourteen
(14) days prior to, and during the 90-day period beginning on, the effective
date of any underwritten Demand Registration or any underwritten Piggyback
Registration in which holders of Registrable Securities are selling stockholders
(except as part of such underwritten registration or pursuant to registrations
on Forms S-4 or S-8 or any successor form), unless the managing underwriters of
such underwritten Demand Registration or underwritten Piggyback Registration
otherwise agree, and (ii) to use all reasonable efforts to cause each holder of
at least five percent (5%) (on a fully-diluted basis) of its equity securities
or any securities convertible, exchangeable or exercisable for or into such
securities, to agree not to effect any public sale or distribution of any such
securities during such period (except as part of such underwritten registration,
if otherwise permitted), unless the managing underwriters of such underwritten
Demand Registration or underwritten Piggyback Registration otherwise agree.
ARTICLE V
REGISTRATION PROCEDURES
Whenever the Stockholders have requested that any Registrable
Securities be registered pursuant to this Agreement, the Company will use all
reasonable 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 will as expeditiously as possible (or, in the case
of clause (p) below, will not):
(a) prepare and file with the Commission a registration
statement with respect to such Registrable Securities (such registration
statement to include all information which the holders of the Registrable
Securities to be registered thereby shall reasonably request) and use all
reasonable efforts to cause such registration statement to become effective,
provided that as promptly as practicable before filing a registration statement
or prospectus or any amendments or supplements thereto, the Company will (i)
furnish to counsel selected by the holders of a majority
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(by number of shares) of the Registrable Securities covered by such registration
statement copies of all such documents proposed to be filed, and the Company
shall not file any such documents to which such counsel shall have reasonably
objected on the grounds that such document does not comply in all material
respects with the requirements of the Securities Act, and (ii) notify each
holder of Registrable Securities covered by such registration statement of (x)
any request by the Commission to amend such registration statement or amend or
supplement any prospectus, or (y) any stop order issued or threatened by the
Commission, and take all reasonable actions required to prevent the entry of
such stop order or to remove it if entered;
(b) (i) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective until all Registrable Securities covered by such Registration
Statement are sold in accordance with the intended plan of distribution set
forth in such Registration Statement and (ii) 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 covered
by such registration statement, without change, such number of conformed copies
of such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus and, in each case, including all exhibits thereto and documents
incorporated by reference therein) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller thereof shall reasonably request, to keep such
registration or qualification in effect for so long as such registration
statement remains in effect and do any and all other acts and things which may
be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller, provided, however, that the Company will 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 clause (d), (ii) subject itself to taxation in
any such jurisdiction or (iii) consent to general service of process in any such
jurisdiction;
(e) furnish to each seller of Registrable Securities a signed
copy, addressed to such seller (and the underwriters, if any) of an opinion of
counsel for the Company or special counsel to the selling stockholders, dated
the effective date of such registration statement (and, if such registration
statement includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), reasonably satisfactory in form and
substance to such seller, covering substantially the same matters with respect
to such registration statement (and the prospectus included therein) as are
customarily covered in opinions of issuer's counsel delivered
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to the underwriters in underwritten public offerings, and such other legal
matters as the seller (or the underwriters, if any) may reasonably request;
(f) notify each seller of Registrable Securities, at a time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of any event known to the Company as a result
of which the prospectus included in such registration statement, as then in
effect, contains an untrue statement of a material fact or omits to state any
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances under which they were made, and, at
the request of any such seller, the Company will prepare and furnish such seller
a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances under which they were made and in the event the
Company shall give such notice, the Company shall extend the period during which
such registration statement shall be maintained effective by the number of days
during the period from and including the date of the giving of such notice to
such seller to the date when the Company made available to such seller an
appropriately amended or supplemented prospectus;
(g) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and to enter into such customary agreements as may be required in
furtherance thereof, including without limitation listing applications and
indemnification agreements in customary form;
(h) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(i) enter into such customary arrangements and take all such
other actions as the holders of a majority (by number of shares) of the
Registrable Securities being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities (including without limitation use its best efforts to effect a stock
split or a combination of shares);
(j) 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
any such seller or 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, underwriter, attorney,
accountant or agent in connection with such registration statement;
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(k) subject to other provisions hereof, use all reasonable
efforts to cause such Registrable Securities covered by such registration
statement to be registered with or approved by such other governmental agencies
or authorities or self-regulatory organizations as may be necessary to enable
the sellers thereof to consummate the disposition of such Registrable
Securities;
(l) use all reasonable efforts to obtain a "comfort" letter,
dated the effective date of such registration statement (and, if such
registration includes an underwritten offering, dated the date of the closing
under the underwriting agreement), signed by the independent public accountants
who have certified the Company's financial statements, addressed to each seller,
and to the underwriters, if any, covering substantially the same matters with
respect to such registration statement (and the prospectus included therein) and
with respect to events subsequent to the date of such financial statements, as
are customarily covered in accountants' letters delivered to the underwriters in
underwritten public offerings of securities and such other financial matters as
such seller (or the underwriters, if any) may reasonably request;
(m) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the Commission and make available to its
security holders, in each case as soon as practicable, an earnings statement
covering a period of at least twelve months, beginning with the first month
after the effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act;
(n) permit any holder of Registrable Securities, which holder,
in the sole judgment, exercised in good faith, of such holder might be deemed to
be a controlling person of the Company (within the meaning of the Securities Act
or the Exchange Act) to participate in the preparation of any registration
statement covering such holder's Registrable Securities and to include therein
material, furnished to the Company in writing, which in the reasonable judgment
of such holder should be included and which is reasonably acceptable to the
Company;
(o) use all reasonable efforts to obtain the lifting at the
earliest possible time of any stop order suspending the effectiveness of any
registration statement or of any order preventing or suspending the use of any
preliminary prospectus;
(p) at any time file or make any amendment to a registration
statement, or any amendment of or supplement to a prospectus (including
amendments of the documents incorporated by reference into the prospectus), of
which each seller of Registrable Securities or the managing underwriters shall
not have previously been advised and furnished a copy or to which the sellers of
Registrable Securities, the managing underwriters, or counsel for such sellers
or for the underwriters shall reasonably object;
(q) make such representations and warranties (subject to
appropriate disclosure schedule exceptions) to sellers of Registrable Securities
and the underwriters, if any,
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in form, substance and scope as are customarily made by issuers to underwriters
and selling holders, as the case may be, in underwritten public offerings of
substantially the same type; and
(r) if any proposed registration statement refers to any
seller by name or otherwise as the holder of any securities of the Company then
(whether or not such seller is or might be deemed to be a controlling person of
the Company), (i) the Company shall be required at the request of such seller to
insert therein language, in form and substance reasonably satisfactory to such
seller, the Company and the managing underwriters, to the effect that the
holding by such seller of such securities is not to be construed as a
recommendation by such seller of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such seller
will assist in meeting any future financial requirements of the Company, or (ii)
in the event that such reference to such seller by name or otherwise is not
required by the Securities Act, any similar Federal or state statute, or any
rule or regulation of any other regulatory body having jurisdiction over the
offering, then in force, the Company shall be required at the request of such
seller to delete the reference to such seller.
ARTICLE VI
REGISTRATION EXPENSES
VI.1 FEES GENERALLY.
All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation 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, 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, all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws (including without limitation reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the Registrable
Securities), printing expenses, messenger and delivery expenses, 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 by the Company, except that each
Stockholder shall pay any underwriting fees, discounts or commissions
attributable to the sale of its Registrable Securities.
VI.2 COUNSEL FEES.
In connection with each Demand Registration, the Company will
reimburse the Requesting Investor for such Demand Registration for the
reasonable fees and disbursements of one counsel chosen by the relevant
Requesting Investor.
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ARTICLE VII
UNDERWRITTEN OFFERINGS
VII.1 DEMAND UNDERWRITTEN OFFERINGS.
If requested by the underwriters for any underwritten
offerings of Registrable Securities pursuant to a Demand Registration, the
Company will enter into an underwriting agreement with such underwriters for
such offering, such agreement to be satisfactory in substance and form to the
Requesting Investor requesting such Demand Registration and the underwriters,
and to contain such representations and warranties by the Company and such other
terms as are generally included in agreements of this type, including without
limitation indemnities customarily included in such agreements. The holders of
the Registrable Securities will cooperate in good faith with the Company in the
negotiation of the underwriting agreement. The holders of Registrable Securities
to be distributed by such underwriters may be parties to such underwriting
agreement and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Registrable Securities and that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. The Company shall cooperate with any such
holder of Registrable Securities in order to limit any representations or
warranties to, or agreements with, the Company or the underwriters to be made by
such holder only to those representations, warranties or agreements regarding
such holder, such holder's Registrable Securities and such holder's intended
method of distribution and any other representation required by applicable law.
VII.2 INCIDENTAL UNDERWRITTEN OFFERINGS.
If the Company at any time proposes to register any of its
securities under the Securities Act as contemplated by Article III of this
Agreement and such securities are to be distributed by or through one or more
underwriters, the Company will, if requested by any holder of Registrable
Securities as provided in Article III of this Agreement, arrange for such
underwriters to include all the Registrable Securities to be offered and sold by
such holder, subject to the limitations set forth in Article III hereof, among
the securities to be distributed by such underwriters. The holders of
Registrable Securities to be distributed by such underwriters shall be parties
to the underwriting agreement between the Company and such underwriters, and
may, at their option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such holders of Registrable Securities and that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of such holders of
Registrable Securities. The
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Company shall cooperate with any such holder of Registrable Securities in order
to limit any representations or warranties to, or agreements with, the Company
or the underwriters to be made by such holder only to those representations,
warranties or agreements regarding such holder, such holder's Registrable
Securities and such holder's intended method of distribution and any other
representation required by applicable law.
ARTICLE VIII
INDEMNIFICATION
VIII.1 INDEMNIFICATION BY THE COMPANY.
The Company agrees to indemnify and hold harmless, to the
fullest extent permitted by law, each of the holders of any Registrable
Securities covered by such registration statement, each other Person, if any,
who controls such holder within the meaning of the Securities Act or the
Exchange Act, and each of their respective directors, general partners and
officers, as follows:
(i) against any and all loss, liability, claim, damage or
expense arising out of or based upon an untrue statement or
alleged untrue statement of a material fact contained in any
registration statement (or any amendment or supplement
thereto), including all documents incorporated therein by
reference, or in any preliminary prospectus or prospectus (or
any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense to the extent of the aggregate amount paid in
settlement of any litigation, investigation or proceeding by
any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement
or omission or any such alleged untrue statement or omission,
if such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense incurred by them in
connection with investigating, preparing or defending against
any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission or any such alleged untrue
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statement or omission, to the extent that any such expense is
not paid under clause (i) or (ii) above;
provided, that this indemnity does not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such holder expressly for use in the preparation of any registration statement
(or any amendment or supplement thereto), including all documents incorporated
therein by reference, or in any preliminary prospectus or prospectus (or any
amendment or supplement thereto); and provided, further, that the Company will
not be liable to any holder under the indemnity agreement in this Section 8.1,
with respect to any preliminary prospectus or the final prospectus or the final
prospectus as amended or supplemented, as the case may be, to the extent that
any such loss, liability, claim, damage or expense of such controlling Person or
holder results from the fact that such holder sold Registrable Securities to a
Person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the final prospectus or of the final
prospectus as then amended or supplemented, whichever is most recent, if the
Company has previously and timely furnished copies thereof to such holder. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such holder or any such director, officer, general
partner, or other controlling person and shall survive the transfer of such
securities by such seller.
VIII.2 INDEMNIFICATION BY A SELLING STOCKHOLDER.
In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder agrees to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 8.1 of this Agreement), to the extent permitted by law, the
Company and its directors, officers and controlling Persons, and their
respective directors, officers and general partners, with respect to any
statement or alleged statement in or omission or alleged omission from such
registration statement, any preliminary, final or summary prospectus contained
therein, or any amendment or supplement thereto, if such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with written information that relates only to such holder or the plan
of distribution that is expressly furnished to the Company by or on behalf of
such holder for use in the preparation of such registration statement,
preliminary, final or summary prospectus or amendment or supplement. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of the Company, or such holder, as the case may be, or any
of their respective directors, officers, controlling Persons or general partners
and shall survive the transfer of such securities by such holder. With respect
to each claim pursuant to this Section 8.2, each holder's maximum liability
under this Section shall be limited to an amount equal to the net proceeds
actually received by such holder (after deducting any underwriting discount and
expenses) from the sale of Registrable Securities being sold pursuant to such
registration statement or prospectus by such holder.
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VIII.3 INDEMNIFICATION PROCEDURE.
Promptly after receipt by an indemnified party hereunder of
written notice of the commencement of any action or proceeding involving a claim
referred to in Section 8.1 or Section 8.2 of this Agreement, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of such action;
provided that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under Section
8.1 or Section 8.2 of this Agreement except to the extent that the indemnifying
party is actually prejudiced by such failure to give notice. In case any such
action is brought against an indemnified party, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified, to the extent that it may wish,
with counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal fees and expenses subsequently incurred by the
latter in connection with the defense thereof, unless in such indemnified
party's reasonable judgment an actual or potential conflict of interest between
such indemnified and indemnifying parties may exist in respect of such claim, in
which case the indemnifying party shall not be liable for the fees and expenses
of (i) more than one counsel (in addition to any local counsel) for all holders
of Registrable Securities, selected by a majority (by number of shares) of the
holders of Registrable Securities, or (ii) more than one counsel (in addition to
any local counsel) for the Company in connection with any one action or separate
but similar or related actions. An indemnifying party who is not entitled to
(pursuant to an immediately preceding sentence), or elects not to, assume the
defense of a claim will not be obligated to pay the fees and expenses of more
than one counsel (in addition to any local counsel) for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party an actual or potential conflict of interest
may exist between such indemnified party and any other of such indemnified
parties with respect to such claim, in which event the indemnifying party shall
be obligated to pay the fees and expenses of such additional counsel or
counsels. The indemnifying party will not, without the prior written consent of
each indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not such
indemnified party or any Person who controls such indemnified party is a party
to such claim, action, suit or proceeding), unless such settlement, compromise
or consent includes an unconditional release of such indemnified party from all
liability arising out of such claim, action, suit or proceeding. Notwithstanding
anything to the contrary set forth herein, and without limiting any of the
rights set forth above, in any event any party will have the right to retain, at
its own expense, counsel with respect to the defense of a claim.
VIII.4 UNDERWRITING AGREEMENT.
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The Company and each holder of Registrable Securities
requesting registration shall provide for the foregoing indemnity (with
appropriate modifications) in any underwriting agreement with respect to any
required registration or other qualification of securities under any Federal or
state law or regulation of any governmental authority.
VIII.5 CONTRIBUTION.
If the indemnification provided for in Sections 8.1 and 8.2 of
this Agreement is unavailable to hold harmless an indemnified party under such
Sections, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in Section 8.1 or Section 8.2 of this Agreement in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand, and the indemnified party on the other, in connection
with statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations,
including without limitation the relative benefits received by each party from
the offering of the securities covered by such registration statement, the
parties' relative knowledge and access to information concerning the matter with
respect to which the claim was asserted and the opportunity to correct and
prevent any statement or omission. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statements or omission. The
parties hereto agree that it would not be just and equitable if contributions
pursuant to this Section 8.5 were to be determined by pro rata or per capita
allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the first and second sentences of this
Section 8.5. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this Section
8.5 shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
action or claim (which shall be limited as provided in Section 8.3 of this
Agreement if the indemnifying party has assumed the defense of any such action
in accordance with the provisions thereof) which is the subject of this Section
8.5. Promptly after receipt by an indemnified party under this Section 8.5 of
notice of the commencement of any action against such party in respect of which
a claim for contribution may be made against an indemnifying party under this
Section 8.5, such indemnified party shall notify the indemnifying party in
writing of the commencement thereof if the notice specified in Section 8.3 of
this Agreement has not been given with respect to such action; provided that the
omission to so notify the indemnifying party shall not relieve the indemnifying
party from any liability which it may otherwise have to any indemnified party
under this Section 8.5, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. The Company and each holder
of Registrable Securities agrees with each other and the underwriters of the
Registrable Securities, if requested by such underwriters, that (i) the
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underwriters' portion of such contribution shall not exceed the underwriting
discount and (ii) that the amount of such contribution shall not exceed an
amount equal to the net proceeds actually received by such indemnifying party
from the sale of Registrable Securities in the offering to which the losses,
liabilities, claims, damages or expenses of the indemnified parties relate. 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.
VIII.6 PERIODIC PAYMENTS.
The indemnification required by this Article VIII shall be
made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
ARTICLE IX
RULE 144
If the Company shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a registration
statement pursuant to the requirements of the Securities Act, the Company
covenants that it will file the reports required to be filed by it under the
Securities Act and the Exchange Act (or, if the Company is not required to file
such reports, it will, upon the request of any holder of Registrable Securities,
make publicly available other information), and it will take such further action
as any holder of Registrable Securities may reasonably request, all to the
extent required from time to time to enable such holder to sell shares of
Registrable Securities without registration under the Securities Act in
compliance with (i) Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any holder of Registrable
Securities, the Company will deliver to such holder a written statement as to
whether it has complied with such requirements.
ARTICLE X
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Person may participate in any underwritten registration
hereunder 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, escrow agreements and other documents reasonably required under the
terms of such underwriting arrangements and consistent with the provisions of
this Agreement.
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ARTICLE XI
MISCELLANEOUS
XI.1 NO INCONSISTENT AGREEMENTS.
The Company will not hereafter enter into any agreement which
is inconsistent with, or would otherwise restrict the performance by the Company
of, its obligations hereunder.
XI.2 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES.
The Company will not take any action, or fail to take any
action which it may properly take, with respect to its securities which would
adversely affect the ability of the holders of Registrable Securities to include
Registrable Securities in a registration undertaken pursuant to this Agreement
or which, to the extent within its control, would adversely affect the
marketability of such Registrable Securities in any such registration (including
without limitation effecting a stock split or a combination of shares).
XI.3 SPECIFIC PERFORMANCE.
The parties hereto agree that irreparable damage would occur
in the event any provision of this Agreement was not performed in accordance
with the terms hereof and that the parties shall be entitled to specific
performance of the terms hereof, in addition to any other remedy at law or
equity; provided, however, that each of the parties agrees to provide other
parties with written notice at least two business days prior to filing any
motion or other pleading seeking a temporary restraining order, a temporary or
permanent injunction, specific performance, or any other equitable remedy and to
give other parties and their counsel a reasonable opportunity to attend and
participate in any judicial or administrative hearing or other proceeding held
to adjudicate or rule upon any such motion or pleading.
XI.4 ACTIONS TAKEN; AMENDMENTS AND WAIVERS.
(a) Whenever any action is required under this Agreement to be
taken by, or any vote or consent is required of,
(i) the Management Stockholders (and Additional Management
Stockholders) (as a group as opposed to the exercise by a
Management Stockholder or Additional Management Stockholder,
as the case may be, of his individual rights hereunder),
unless otherwise agreed by the Company and the Management
Stockholders and/or the Additional Management Stockholders,
such action, vote or consent shall be taken or in accordance
with the affirmative vote of the holders of a majority (by
number of shares) of the Registrable Securities held by
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Management Stockholders and Additional Management
Stockholders; or
(ii) the Additional Stockholders (as a group as opposed to the
exercise by an Additional Stockholder of his individual rights
hereunder), unless otherwise agreed by the Company and the
Additional Stockholders, such action, vote or consent shall be
taken by or in accordance with the affirmative vote of the
holders of a majority (by number of shares) of the Registrable
Securities held by the Additional Stockholders.
(b) Except as otherwise provided herein, no modification,
amendment or waiver of any provision of this Agreement will be effective against
the Company or any holder of Registrable Securities, unless such modification,
amendment or waiver is approved in writing by the Company, the Required
Institutional Stockholders, and, in the event that the rights and obligations of
the Management Stockholders and/or the Additional Stockholders are adversely
affected thereby, the approval of the Management Stockholders and/or the
Additional Stockholders, as the case may be. The failure of any party to enforce
any of the provisions of this Agreement will in no way be construed as a waiver
of such provisions and will not affect the right of such party thereafter to
enforce each and every provision of this Agreement in accordance with its terms.
XI.5 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Agreement by or on behalf
of any of the parties hereto will 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, except to the extent reserved to or
by the transferor in connection with any such transfer; provided, that the
benefits of this Agreement shall inure to and be enforceable by any transferee
of Registrable Securities so long as such transferee shall have acquired such
securities in accordance with the terms of the Stockholders' Agreement and shall
have executed a Registration Rights Joinder Agreement.
XI.6 NOTICES.
(a) All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally against written receipt or by facsimile transmission or mailed (by
registered or certified mail, return receipt requested) or by reputable
overnight courier, fee prepaid to the parties at the following addresses or
facsimile numbers:
(i) If to any Institutional Stockholder, to:
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Court Square Capital Limited
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
Attn: Xxxxxxx X. Xxxxxxx
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: 000-000-0000
Attn: Xxxxxx X. Xxxxxx
(ii) If to any Management Stockholder, Additional
Management Stockholder or Additional Stockholder, to
the address of such Person set forth in the stock
records of the Company.
(b) All such notices, requests and other communications will
be deemed delivered upon receipt. Any party from time to time may change its
address, facsimile number or other information for the purpose of notices to
that party by giving notice specifying such change to the other parties hereto.
XI.7 HEADINGS.
The headings used in this Agreement have been inserted for
convenience of reference only and do not affect the provisions hereof.
XI.8 GENDER.
Whenever the pronouns "he" or "his" are used herein they shall
also be deemed to mean "she" or "hers" or "it" or "its" whenever applicable.
Words in the singular shall be read and construed as though in the plural and
words in the plural shall be construed as though in the singular in all cases
where they would so apply.
XI.9 INVALID PROVISIONS.
If any provision of this Agreement is held to be illegal,
invalid or unenforceable under any present or future law, and if the rights or
obligations of any party hereto under this Agreement will not be materially and
adversely affected thereby, (i) such provision will be fully severable, (ii)
this Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, (iii) the remaining
provisions of this
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Agreement will remain in full force and effect and will not be affected by the
illegal, invalid or unenforceable provision or by its severance herefrom and
(iv) in lieu of such illegal, invalid or unenforceable provision, there will be
added automatically as a part of this Agreement a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
XI.10 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT
TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW
YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF
ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
XI.11 SERVICE OF PROCESS.
EACH OF THE PARTIES HERETO IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS IN ANY ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE PARTY AT THE ADDRESS
SPECIFIED IN THIS AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE FIFTEEN (15) DAYS
AFTER SUCH MAILING. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE
ABILITY OF ANY PARTY HERETO TO SERVE ANY SUCH LEGAL PROCESS, SUMMONS, NOTICES
AND DOCUMENTS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW OR TO OBTAIN
JURISDICTION OVER OR TO BRING ACTIONS, SUITS OR PROCEEDINGS AGAINST ANY OF THE
OTHER PARTIES HERETO IN SUCH OTHER JURISDICTIONS, AND IN SUCH MANNER, AS MAY BE
PERMITTED BY ANY APPLICABLE LAW.
XI.12 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS
TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
THIS AGREEMENT. EACH OF THE PARTIES HERETO ALSO WAIVES ANY BOND OR SURETY OR
SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF SUCH
PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND
ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT
MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
EACH OF THE PARTIES HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED
THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS
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WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
XI.13 COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
each of which will be deemed an original, but all of which together will
constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
MSX INTERNATIONAL, INC.
By:
-------------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Executive Vice President
COURT SQUARE CAPITAL LIMITED
By:
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
MANAGEMENT STOCKHOLDERS
Billig Family Limited Partnership
By:
-------------------------------------------
Name:
Title:
----------------------------------------------
Xxxxxxxxx X. Xxxxxxx
----------------------------------------------
Xxxxxx Xxxxxxxxx
----------------------------------------------
Xxxx X. Risk
Xxxxx Xx Xxx and Xxxxx X. Xxxxxx, Trustees
under Trust Agreement, dated October 16, 1989,
between Xxxxx Xx Xxx, Settlor, and Xxxxx Xx
Xxx, Trustee
By:
-------------------------------------------
Name:
Title:
CVC GROUP
----------------------------------------------
Xxxxxxx X. Xxxxxx
29
Natasha Partnership
By:
-------------------------------------------
Name:
Title:
63BR Partnership
By:
-------------------------------------------
Name:
Title:
----------------------------------------------
Xxxxxx Xxxxxx
----------------------------------------------
Xxxxxxx X. Xxxxxxx
Alchemy, L.P.
By:
-------------------------------------------
Name:
Title:
----------------------------------------------
M. Xxxxxx Xxxxxxxx
----------------------------------------------
Xxxxxx Xxxxxxxxx
----------------------------------------------
Xxxxx X. Xxxxxx
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Xxxxx X. Xxxx
ADDITIONAL MANAGEMENT STOCKHOLDERS
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Xxxxx Xxxxxxxx
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Xxxxxxx Xxxxxx
30
Exhibit A
Form of Registration Rights Joinder Agreement
MSX INTERNATIONAL, INC.
000 Xxx Xxxxxxxxx
Xxxxxx Xxxxx, XX 00000
Attention: Chief Executive Officer
Ladies & Gentlemen:
In consideration of the [TRANSFER][ISSUANCE] to the
undersigned of [DESCRIBE SECURITY BEING TRANSFERRED/ISSUED] of MSX
INTERNATIONAL, INC., a Delaware corporation (the "Company"), the undersigned
[REPRESENTS THAT IT IS A PERMITTED TRANSFEREE OF [INSERT NAME OF TRANSFEROR]
AND]* agrees that, as of the date written below, [HE][SHE][IT] shall become a
party to[, AND A PERMITTED TRANSFEREE AS DEFINED IN,]* that certain Amended and
Restated Registration Rights Agreement, effective as of November 28, 2000, as
such agreement may have been amended, supplemented or modified from time to time
(the "Agreement"), among the Company and the persons named therein, and [AS A
PERMITTED TRANSFEREE SHALL BE FULLY BOUND BY, AND SUBJECT TO, ALL OF THE
COVENANTS, TERMS AND CONDITIONS OF THE AGREEMENT THAT WERE APPLICABLE TO THE
UNDERSIGNED'S TRANSFEROR,]* [SHALL BE FULLY BOUND BY, AND SUBJECT TO, THE
COVENANTS, TERMS AND CONDITIONS OF THE AGREEMENT AS PROVIDED UNDER SECTION 11.5
OF THE AGREEMENT]** [SHALL BE FULLY BOUND BY, AND SUBJECT TO, ALL OF THE
COVENANTS, TERMS AND CONDITIONS OF THE AGREEMENT,]*** as though an original
party thereto and shall be deemed a [MANAGEMENT STOCKHOLDER] [ADDITIONAL
STOCKHOLDER] [INSTITUTIONAL STOCKHOLDER]**** for [ALL]* [SOLELY FOR]** [ALL]***
purposes thereof.
Executed as of the day of , .
SIGNATORY:
Address:
ACKNOWLEDGED AND ACCEPTED:
MSX INTERNATIONAL, INC.
By:
Name:
Title:
* Include if signatory is a Permitted Transferee
** Include if signatory is a Third Party
*** Include if signatory is an Additional Stockholder
**** Include if signatory is receiving securities from a Management
Stockholder, an Additional Stockholder or an Institutional Stockholder;
if signatory is an Additional Stockholder receiving securities issued
by the Company insert [Additional Stockholder]
