EXHIBIT 4.4
CONFORMED COPY
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ROCKFORD CORPORATION,
as the Company
XXXXX XXXXXXX & CO.,
as XXXXX XXXXXXX
and
BUYERS,
as defined herein
REGISTRATION RIGHTS AGREEMENT
Dated as of June 10, 2004
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is entered
into as of June 10, 2004, by and among Rockford Corporation, an Arizona
corporation (the "Company"), Xxxxx Xxxxxxx & Co. ("Xxxxx Xxxxxxx") and the
buyers listed on the Schedule of Buyers attached hereto as Exhibit A (each, a
"Buyer" and, collectively, the "Buyers").
THE PARTIES TO THIS AGREEMENT enter into this agreement on the basis
of the following facts, intentions and understanding:
A. The Company and the Buyers entered into that certain Securities
Purchase Agreement of even date herewith (the "Securities Purchase Agreement"),
and, upon the terms and subject to the conditions of the Securities Purchase
Agreement, the Company has agreed (i) to issue and sell to the Buyers an
aggregate of up to (A) Twelve Million Five Hundred Thousand United States
Dollars ($12.5 million) of the Company's 4.5% Convertible Senior Subordinated
Secured Notes due 2009 (such Convertible Senior Subordinated Secured Notes, as
the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof, the "Notes"), which shall be convertible into
shares of common stock, $0.01 par value per share (the "Common Stock") of the
Company (as converted, the "Conversion Shares"), and (B) Warrants (such
Warrants, as the same may be amended, modified or supplemented from time to time
in accordance with the terms thereof, the "Buyer Warrants") to purchase up to
five hundred ninety thousand seven hundred and thirty-seven (590,737) shares of
Common Stock (as exercised collectively, the "Buyer Warrant Shares"), and (ii)
to issue to Xxxxx Xxxxxxx Warrants (such Warrants, as the same may be amended,
modified or supplemented from time to time in accordance with the terms thereof,
the "Xxxxx Xxxxxxx Warrants" and, together with the Buyer Warrants, the
"Warrants") to purchase the number of shares of Common Stock set forth on the
Schedule of Fees attached as Exhibit D to the Securities Purchase Agreement (as
exercised collectively, the "Xxxxx Xxxxxxx Warrant Shares" and, together with
the Buyer Warrant Shares, the "Warrant Shares").
B. To induce the Buyers to execute and deliver the Securities
Purchase Agreement and to induce Xxxxx Xxxxxxx to act as the Company's exclusive
placement agent, the Company has agreed to provide certain registration rights
to the Buyers and Xxxxx Xxxxxxx under the Securities Act of 1933, as amended,
and the rules and regulations thereunder, or any similar successor statute
(collectively, the "Securities Act"), and applicable state securities laws.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company, Xxxxx
Xxxxxxx and each of the Buyers hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following
terms shall have the following meanings:
(a) "Business Day" means any day other than Saturday, Sunday or any
other day on which commercial banks in The City of New York are required by law
or executive order to remain closed.
(b) "Commission" means the Securities and Exchange Commission.
(c) "Investor" means Xxxxx Xxxxxxx and each Buyer and any transferee
or assignee thereof to whom Xxxxx Xxxxxxx or a Buyer assigns its rights under
this Agreement and who agrees to become bound by the provisions of this
Agreement in accordance with Section 9 of this Agreement, and any subsequent
transferee or assignee thereof to whom a transferee or assignee assigns its
rights under this Agreement and who agrees to become bound by the provisions of
this Agreement in accordance with Section 9 of this Agreement.
(d) "Person" means an individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated
organization or association and governmental or any department or agency
thereof.
(e) "register," "registered," and "registration" means a
registration effected by preparing and filing one or more Registration
Statements (as defined below) in compliance with the Securities Act and pursuant
to Rule 415 under the Securities Act or any successor rule providing for
offering securities on a continuous or delayed basis ("Rule 415"), and the
declaration or ordering of effectiveness of such Registration Statements by the
Commission.
(f) "Registrable Securities" means (i) the Notes, (ii) the Warrants,
(iii) the Conversion Shares issued or issuable upon conversion of the Notes,
(iv) the Warrant Shares issued or issuable upon exercise of the Warrants, (v)
any shares of capital stock issued or issuable with respect to the Conversion
Shares or the Warrant Shares as a result of any stock split, stock dividend,
recapitalization, exchange or similar event or otherwise, without regard to any
limitations on conversions of the Notes or the exercise of the Warrants, and
(vi) any shares of capital stock of any entity issued in respect of the
securities referenced in the immediately preceding clauses (i), (ii), (iii),
(iv) and (v) as a result of a merger, consolidation, sale of assets, sale or
exchange of capital stock or other similar transaction; provided, that any
Registrable Securities that have been sold pursuant to a Registration Statement
or Rule 144 promulgated under the Securities Act shall no longer be Registrable
Securities.
(g) "Registration Statement" means a registration statement or
registration statements of the Company filed under the Securities Act and,
subject to Section 4(b), covering all of the Registrable Securities.
(h) Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in the Securities Purchase
Agreement.
SECTION 2. REGISTRATION.
(a) Mandatory Registration. The Company shall use its best efforts
to prepare and, as soon as practicable but in no event later than 30 calendar
days after the Closing Date (as that term is defined in the Securities Purchase
Agreement) (the "Filing Deadline"), file with the Commission a Registration
Statement on Form S-3 covering the resale of all of the Registrable Securities.
In the event that Form S-3 is unavailable for such a registration, the Company
shall use such other form as is available for such a registration, subject to
the provisions of Section 2(d) of this Agreement. The Registration Statement
prepared pursuant hereto shall register the Registrable Securities for resale,
including at least 105% of the number of shares of Common
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Stock issuable upon conversion of the Notes and exercise of the Warrants by the
Investors from time to time in accordance with the methods of distribution
elected by such Investors or such other amount as required by Section 4(e) of
the Securities Purchase Agreement. The Company shall use commercially reasonable
efforts to have the Registration Statement declared effective by the Commission
as soon as practicable, but not later than 90 calendar days after the Closing
Date (the "Effectiveness Deadline"); provided, however, that if the Commission
reviews the Registration Statement and requires the Company to make
modifications thereto, then the Effectiveness Deadline shall be extended to 120
calendar days after the Closing Date. In the event that, after the Closing Date
and before the Registration Statement is declared effective, the offices of the
Commission are closed due to acts of God, war or terror, the Effectiveness
Deadline will be extended by a number of days equal to the days of any such
closure.
(b) Allocation of Registrable Securities. The initial number of
Conversion Shares and Warrant Shares included in any Registration Statement and
each increase in the number of Conversion Shares or Warrant Shares included
therein shall be allocated pro rata among the Investors based on the number of
Conversion Shares or Warrant Shares (determined as if all of the Notes held by
Investors then outstanding have been converted into Conversion Shares and all
Warrants then outstanding have been exercised for Warrant Shares without regard
to any limitations on conversion of the Notes or exercise of the Warrants) held
by each Investor at the time the Registration Statement covering such initial
number of Conversion Shares and Warrant Shares or increase thereof is declared
effective by the Commission. In the event that an Investor sells or otherwise
transfers any of such Investor's Registrable Securities, each transferee shall
be allocated the portion of the then remaining number of Registrable Securities
included in such Registration Statement allocable to the transferor. In no event
shall the Company include any securities other than Registrable Securities on
any Registration Statement without the prior written consent of the Investors
holding at least a majority of the Conversion Shares or Warrant Shares,
determined as if all of the Notes held by Investors then outstanding have been
converted into Conversion Shares and all Warrants then outstanding have been
exercised for Warrant Shares without regard to any limitations on conversion of
the Notes or exercise of the Warrants.
(c) Legal Counsel. Subject to Section 5 of this Agreement, the
Investors holding at least a majority of the Conversion Shares or Warrant
Shares, determined as if all of the Notes held by Investors then outstanding
have been converted into Conversion Shares and all Warrants then outstanding
have been exercised for Warrant Shares without regard to any limitations on
conversion of the Notes or on the exercise of the Warrants, shall have the right
to select one legal counsel to review and comment upon any registration pursuant
to this Agreement (the "Legal Counsel"), which the Investors agree shall be
Xxxxxx, Xxxx & Xxxxxxxx LLP or such other counsel as is thereafter designated in
writing by the holders of at least a majority of the Conversion Shares or
Warrant Shares, determined as set forth above. Xxxxxx, Xxxx & Xxxxxxxx LLP, or
any other counsel designated in writing by the holders of at least a majority of
the Conversion Shares and Warrant Shares, shall not represent any Investor that
sends such counsel written notice that such Investor does not wish such counsel
to represent it in connection with the matters discussed in this Section 2(c).
The Investors, other than any Investor that delivers the notice discussed in the
preceding sentence, hereby waive any conflict of interest or potential conflict
of interest that may arise as a result of the representation of such Investors
by Xxxxxx, Xxxx & Xxxxxxxx LLP in connection with the subject matter of this
Agreement. The provision
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will not prohibit any other counsel to an Investor from reviewing and commenting
on any registration filed pursuant to this Agreement at no cost to the Company.
(d) Ineligibility for Form S-3. If Form S-3 is not available for the
registration of the resale of the Registrable Securities hereunder or the
Company is not permitted by the Securities Act or the Commission to use Form
S-3, then the Company shall (i) register the resale of the Registrable
Securities on another appropriate form reasonably acceptable to the holders of
at least a majority of the Conversion Shares or Warrant Shares, determined as if
all of the Notes held by Investors then outstanding have been converted into
Conversion Shares and all Warrants then outstanding have been exercised for
Warrant Shares without regard to any limitations on conversion of the Notes or
on the exercise of the Warrants and (ii) undertake to register the Registrable
Securities on Form S-3 as soon as such form is available; provided, however,
that the Company shall maintain the effectiveness of the Registration Statement
then in effect until such time as a Registration Statement on Form S-3 covering
all of the Registrable Securities has been declared effective by the Commission
or, if earlier, until the end of the Registration Period (as defined in Section
3(a)).
(e) Sufficient Number of Shares Registered. In the event the number
of Conversion Shares or Warrant Shares registered under a Registration Statement
filed pursuant to Section 2(a) of this Agreement is insufficient to cover all of
the Conversion Shares or Warrant Shares or all of an Investor's allocated
portion of the Conversion Shares or Warrant Shares pursuant to Section 2(b) of
this Agreement, the Company shall amend the Registration Statement, or file a
new Registration Statement (on the short form available therefor, if
applicable), or both, so as to cover at least one hundred five percent (105%) of
the number of such Conversion Shares or Warrant Shares as of the trading day
immediately preceding the date of the filing of such amendment and/or new
Registration Statement, in each case, as soon as practicable, but in no event
later than fifteen (15) days after the necessity therefor arises. The Company
shall use its commercially reasonable efforts to cause such amendment and/or new
Registration Statement to become effective as soon as practicable following the
filing thereof. The calculation of the number of shares sufficient to cover all
of the Conversion Shares or Warrant Shares shall be made without regard to any
limitations on the conversion of the Notes or the exercise of the Warrants, and
such calculation shall assume that all of the Notes are then convertible into,
and all of the Warrants are then exercisable for, shares of Common Stock at the
then prevailing Conversion Price (as defined in the Notes) or Exercise Price (as
defined in the Warrants), as applicable. Notwithstanding anything herein to the
contrary, if the amendment to the Registration Statement or new Registration
Statement required by this Section 2(e) relates to a number of Conversion Shares
or Warrant Shares equal to or greater than ten percent (10%) of the number of
Conversion Shares or Warrant Shares as of the trading day immediately preceding
the date of the filing of such amendment and/or new Registration Statement, such
amendment or new Registration Statement shall be declared effective by the
Commission not later than 90 calendar days after the filing date thereof;
provided, however, that if the Commission reviews such amendment or new
Registration Statement and requires the Company to make modifications thereto,
then this deadline shall be extended to 120 calendar days after the filing date.
In the event that, after the Closing Date and before the Registration Statement
is declared effective, the offices of the Commission are closed due to acts of
God, war or terror, this deadline will be extended by a number of days equal to
the days of any such closure.
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(f) Effect of Failure to File and Obtain and Maintain Effectiveness
of Registration Statement. Subject to any elections made pursuant to Section
4(b), if (i) a Registration Statement covering all the Registrable Securities is
not filed with the Commission on or before the Filing Deadline or is not
declared effective by the Commission on or before the Effectiveness Deadline,
(ii) a Registration Statement covering all of the Registrable Securities
required to be covered thereby, as described in Section 2(e) of this Agreement,
is not filed with the Commission on or before the deadline described in Section
2(e) of this Agreement or is not declared effective by the Commission on or
before the deadline described in Section 2(e) of this Agreement, (iii) on any
day after such Registration Statement has been declared effective by the
Commission, sales of all of the Registrable Securities required to be included
on such Registration Statement cannot be made as a matter of law (other than
during an Allowable Grace Period (as defined in Section 3(n) of this Agreement)
pursuant to such Registration Statement (including, without limitation, because
of a failure to keep such Registration Statement effective, to disclose such
information as is necessary for sales to be made pursuant to such Registration
Statement or to register a sufficient number of shares of Common Stock), or (iv)
a Grace Period (as defined in Section 3(n) of this Agreement) exceeds the length
of an Allowable Grace Period (each of the items described in clauses (i), (ii),
(iii) and (iv) above shall be referred to as a "Registration Delay"), then the
Company shall pay (1) to each holder of the Notes or Conversion Shares an amount
in cash equal to the product of (i) the initial principal amount paid for the
Note held by such holder or the related Conversion Shares multiplied by (ii) the
product of (I) the percentage determined by dividing (A) the Applicable
Percentage by (B) 30, multiplied by (II) the sum of (x) the number of days
(including any partial days) after the Filing Deadline or the deadline described
in Section 2(e) of this Agreement, as applicable, that the Registration
Statement is not filed with the Commission, plus (y) the number of days
(including any partial days) after the Effectiveness Deadline or the deadline
described in Section 2(e) of this Agreement that the Registration Statement is
not declared effective by the Commission, plus (z) after the Registration
Statement has been declared effective by the Commission, the number of days
(including any partial days) that such Registration Statement is not available
(other than during an Allowable Grace Period) for the sale of all the
Registrable Securities and (2) to each holder of the Warrants or Warrant Shares
an amount in cash equal to the product of (i) the aggregate Exercise Price for
such Warrant or paid for the related Warrant Shares multiplied by (ii) the
product of (I) the percentage determined by dividing (A) the Applicable
Percentage by (B) 30, multiplied by (II) the sum of (x) the number of days
(including any partial days) after the Filing Deadline or the deadline described
in Section 2(e) of this Agreement, as applicable, that the Registration
Statement is not filed with the Commission, plus (y) the number of days
(including any partial days) after the Effectiveness Deadline or the deadline
described in Section 2(e) of this Agreement, as applicable, that the
Registration Statement is not declared effective by the Commission, plus (z)
after the Registration Statement has been declared effective by the Commission,
the number of days (including any partial days) that such Registration Statement
is not available (other than during an Allowable Grace Period) for the sale of
all Registrable Securities. The "Applicable Percentage" shall mean (A) for
periods that only include days on or before the day that is 60 days after the
commencement of a Registration Delay, eight-tenths percent (0.8%), (B) for
periods that only include days after the date that is 60 days after the
commencement of a Registration Delay, one and two-tenths percent (1.2%) and (C)
for periods that include days both before and after the date that is 60 days
after the commencement of a Registration Delay, a percentage equal to a
fraction, the numerator of which shall be the sum of
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(i) the number of days in such period that are on or before the date that is 60
days after the commencement of such Registration Delay multiplied by
eight-tenths percent (0.8%) and (ii) the number of days in such period that are
after the date that is 60 days after the commencement of such Registration Delay
multiplied by one and two-tenths percent (1.2%) and the denominator of which
shall be the total number of days comprising such period. The payments to which
a holder shall be entitled pursuant to this Section 2(f) are referred to herein
as "Registration Delay Payments." The Registration Delay Payments shall be paid
in cash on the earlier of (A) the last day of the calendar month during which
such Registration Delay Payments are incurred and (B) the third Business Day
after the event or failure giving rise to the Registration Delay Payments is
cured. In the event the Company fails to make Registration Delay Payments in a
timely manner, such Registration Delay Payments shall bear interest at the rate
of one and six-tenths percent (1.6%) per month (prorated for partial months)
until paid in full.
SECTION 3. RELATED OBLIGATIONS. At such time as the Company is
obligated to file a Registration Statement with the Commission pursuant to
Section 2(a), 2(d) or 2(e) of this Agreement, the Company will use reasonable
efforts to effect the registration of all of the Registrable Securities in
accordance with the intended method of disposition thereof and, in connection
with its obligations with respect to the Registration Statement, the Company
shall have the following obligations:
(a) The Company shall promptly prepare and file with the Commission
a Registration Statement with respect to all of the Registrable Securities (but
in no event later than the applicable Filing Deadline) and use reasonable
efforts to cause such Registration Statement relating to all of the Registrable
Securities required to be covered thereby to become effective as soon as
practicable after such filing (but in no event later than the applicable
Effectiveness Deadline). The Company shall, subject to the terms of this
Agreement, keep each Registration Statement effective pursuant to Rule 415 at
all times during the period from the date it is initially declared effective
until the later of (i) the second anniversary of the date such Registration
Statement is filed, (ii) the date as of which all of the Investors (other than
any Investors who are "affiliates" of the Company as such term is used in Rule
144(k) promulgated under the Securities Act) may sell all of the Registrable
Securities without restriction pursuant to Rule 144(k) (or the successor rule
thereto) promulgated under the Securities Act or (iii) the date on which all of
the Investors shall have sold all of the Registrable Securities (the
"Registration Period"), which Registration Statement, as of its filing and
effective dates and each day thereafter (including all amendments or supplements
thereto, as of their respective filing and effective dates and each day
thereafter), shall not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein, or necessary to make the
statements therein, not misleading, and the prospectus contained in such
Registration Statement, as of its filing date and each day thereafter (including
all amendments and supplements thereto, as of their respective filing dates and
each day thereafter), shall not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein, or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading.
(b) Subject to Section 3(n) of this Agreement, the Company shall
prepare and file with the Commission such amendments (including post-effective
amendments) and supplements to the Registration Statement and the prospectus
used in connection with such Registration Statement, which prospectus is to be
filed pursuant to Rule 424 (or any successor rule thereto)
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promulgated under the Securities Act, as may be necessary to keep such
Registration Statement effective at all times during the Registration Period,
and, during such period, comply with the provisions of the Securities Act. In
the case of amendments and supplements to a Registration Statement and the
prospectus used in connection with such Registration Statement which are
required to be filed pursuant to this Agreement (including pursuant to this
Section 3(b)) by reason of the Company filing a report on Form 10-K, Form 10-Q
or Form 8-K or any analogous report under the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder, or any similar successor
statute (the "Exchange Act"), the Company shall have incorporated such report by
reference into such Registration Statement, if applicable, or shall file such
amendments or supplements with the Commission on the same day on which the
Exchange Act report is filed which created the requirement for the Company to
amend or supplement such Registration Statement and prospectus.
(c) The Company shall permit Legal Counsel, or if no Legal Counsel
shall have been chosen by the Investors, the Investors and their respective
legal counsel, to review and provide written comment upon each Registration
Statement, prospectus and all amendments and supplements thereto at least three
(3) Business Days prior to their filing with the Commission. The Company shall
furnish to the Investors and Legal Counsel, without charge, (i) promptly after
receipt of such correspondence, copies of all correspondence from the Commission
or the staff of the Commission to the Company or its representatives relating to
each Registration Statement, prospectus and all amendments and supplements
thereto, (ii) promptly after the same is prepared and filed with the Commission,
one (1) copy of each Registration Statement, prospectus and all amendments and
supplements thereto, including all exhibits and financial statements related
thereto, and (iii) promptly upon the effectiveness of each Registration
Statement and each amendment and supplement thereto, one (1) copy of the
prospectus included in each such Registration Statement and all amendments and
supplements thereto. The Company agrees that it will, and it will cause its
counsel to, consider in good faith any comments or objections from Legal
Counsel, or if no Legal Counsel shall have been selected, the Investors and
their respective legal counsel, as to the form or content of each Registration
Statement, prospectus and all amendments or supplements thereto or any written
communications with the Commission or the staff of the Commission concerning a
Registration Statement, prospectus or any amendment or supplement thereto
including, without limitation, a request for acceleration of the effectiveness
of each Registration Statement, prospectus and all amendments or supplements
thereto.
(d) The Company shall furnish to each Investor whose Registrable
Securities are included in any Registration Statement, without charge to such
Investor, (i) promptly after the same is prepared and filed with the Commission,
at least one copy of such Registration Statement and all amendments and
supplements thereto, including all exhibits and financial statements and each
preliminary prospectus, (ii) upon the effectiveness of each Registration
Statement, such number of copies of the prospectus included in such Registration
Statement and all amendments and supplements thereto as such Investor may
reasonably request, and (iii) such other documents, including copies of any
preliminary or final prospectus, as such Investor may reasonably request from
time to time in order to facilitate the disposition of the Registrable
Securities.
(e) Subject to Section 3(n) of this Agreement, and excluding any
Registrable Securities held by Investors electing to exclude their Registrable
Securities from the Registration
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Statement under Section 4(b), the Company shall use reasonable efforts to (i)
promptly register and qualify, unless an exemption from registration and
qualification applies, the resale of the Registrable Securities under such other
securities or "blue sky" laws of all applicable jurisdictions in the United
States as any holder of Registrable Securities reasonably requests in writing,
(ii) promptly prepare and file in those jurisdictions, such amendments
(including post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof during
the Registration Period, (iii) promptly take such other actions as may be
reasonably necessary to maintain such registrations and qualifications in effect
at all times during the Registration Period, and (iv) promptly take all other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to file a general
consent to service of process in any such jurisdiction, except in such
jurisdictions where the Company is subject to service of process. The Company
shall promptly notify each Investor who holds Registrable Securities and Legal
Counsel of the receipt by the Company of any notification with respect to the
suspension of the registration or qualification of any of the Registrable
Securities for sale under the securities or "blue sky" laws of any jurisdiction
in the United States or its receipt of notice of the initiation or threatening
of any proceeding for such purpose.
(f) Notwithstanding anything to the contrary set forth herein, as
promptly as practicable after becoming aware of such event, the Company shall
notify each Investor and Legal Counsel in writing of the happening of any event
as a result of which (i) the Registration Statement or any amendment or
supplement thereto, as then in effect, includes an untrue statement of a
material fact or omission to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or (ii) the
prospectus related to such Registration Statement or any amendment or supplement
thereto includes an untrue statement of a material fact or omission to state 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, and, subject to Section 3(n) of this Agreement, promptly prepare a
supplement or amendment to such Registration Statement and prospectus to correct
such untrue statement or omission, and deliver such number of copies of such
supplement or amendment to each Investor and Legal Counsel as such Investor or
Legal Counsel may reasonably request. The Company shall also promptly notify
each Investor and Legal Counsel in writing (i) when a prospectus and each
prospectus supplement or amendment thereto has been filed, and when a
Registration Statement and each amendment (including post-effective amendments)
and supplement thereto has been declared effective by the Commission
(notification of such effectiveness shall be delivered to each Investor and
Legal Counsel by facsimile on the same day of such effectiveness and by
overnight mail), (ii) of any request by the Commission for amendments or
supplements to a Registration Statement or related prospectus or related
information, and (iii) of the Company's reasonable determination that an
amendment (including any post-effective amendment) or supplement to a
Registration Statement or prospectus would be appropriate (subject to Section
3(n) hereof).
(g) Subject to Section 3(n) of this Agreement, the Company shall use
commercially reasonable efforts to (i) prevent the issuance of any stop order or
other suspension of effectiveness of a Registration Statement, or the suspension
of the qualification of any of the Registrable Securities for sale in any
jurisdiction, and (ii) if such an order or suspension is
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issued, obtain the withdrawal of such order or suspension at the earliest
practicable moment and notify each holder of Registrable Securities and Legal
Counsel of the issuance of such order and the resolution thereof or its receipt
of notice of the initiation or threat of any proceeding for such purpose.
(h) The Company shall hold in confidence and not make any disclosure
of information concerning an Investor provided to the Company unless (i)
disclosure of such information is necessary to comply with United States federal
or state securities laws, (ii) the disclosure of such information is necessary
to avoid or correct a misstatement or omission in any Registration Statement,
prospectus or any amendment or supplement thereto, (iii) the release of such
information is ordered pursuant to a subpoena or other final, non-appealable
order from a court or governmental body of competent jurisdiction, or (iv) such
information has been made generally available to the public other than by
disclosure in violation of this Agreement or any other agreement. The Company
agrees that it shall, upon learning that disclosure of such information
concerning an Investor is sought in or by a court or governmental body of
competent jurisdiction or through other means, unless ordered or requested by
the Commission or other governmental authority not to do so, give prompt written
notice to such Investor and allow such Investor, at the Investor's expense, to
undertake appropriate action to prevent disclosure of, or to obtain a protective
order for, such information.
(i) The Company shall use reasonable efforts to cause all the
Conversion Shares or Warrant Shares to be listed on each securities exchange on
which securities of the same class or series issued by the Company are then
listed, if any, if the listing of such Conversion Shares or Warrant Shares is
then permitted under the rules of such exchange The Company shall pay all fees
and expenses in connection with satisfying its obligation under this Section
3(i).
(j) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Registrable Securities, cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA and
execute, and use their best efforts to cause the Trustee to execute, all
documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(k) In connection with any sale or transfer of Registrable
Securities pursuant to a Registration Statement, the Company shall cooperate
with the Investors who hold Registrable Securities being offered and, to the
extent applicable, facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legend) representing the Registrable
Securities to be offered pursuant to a Registration Statement and enable such
certificates to be in such denominations or amounts, as the case may be, as the
Investors may reasonably request and, registered in such names as the Investors
may request.
(l) If requested by an Investor, the Company shall (i) as soon as
practicable, incorporate in each prospectus supplement or post-effective
amendment to the Registration Statement such information as an Investor provides
in writing and reasonably requests to be included therein relating to the sale
and distribution of the Registrable Securities, and (ii) as soon as practicable,
make all required filings of such prospectus supplement or post-effective
9
amendment after being notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment.
(m) The Company shall comply with all applicable rules and
regulations of the Commission in connection with any registration hereunder.
(n) Within two (2) Business Days after a Registration Statement is
ordered effective by the Commission the Company will so notify the transfer
agent for the Registrable Securities and the Investors whose Registrable
Securities are included in the Registration Statement.
(o) Notwithstanding anything to the contrary herein, at any time
after a Registration Statement has been declared effective by the Commission,
the Company may delay the disclosure of material non-public information
concerning the Company if the disclosure of such information at the time is not,
in the good faith judgment of the Board of Directors of the Company relying upon
the opinion of counsel, in the best interests of the Company (a "Grace Period");
provided, however, that the Company shall promptly (i) notify the Investors in
writing of the existence of material non-public information giving rise to a
Grace Period (provided that the Company shall not disclose the content of such
material non-public information to the Investors) and the date on which the
Grace Period will begin, and (ii) notify the Investors in writing of the date on
which the Grace Period ends; provided further, that no single Grace Period shall
exceed thirty (30) consecutive days, and during any three hundred sixty-five
(365) day period, the aggregate of all of the Grace Periods shall not exceed an
aggregate of sixty (60) days and the first day of any Grace Period must be at
least ten (10) trading days after the last day of any prior Grace Period (each
Grace Period complying with this provision being an "Allowable Grace Period").
For purposes of determining the length of a Grace Period, the Grace Period shall
be deemed to begin on and include the date the Investors receive the notice
referred to in clause (i) above and shall end on and include the later of the
date the Investors receive the notice referred to in clause (ii) above and the
date referred to in such notice; provided, however, that no Grace Period shall
be longer than an Allowable Grace Period. The provisions of Section 3(g) of this
Agreement shall not be applicable during the period of any Allowable Grace
Period. Upon expiration of the Grace Period, the Company shall again be bound by
the first sentence of Section 3(f) of this Agreement.
SECTION 4. OBLIGATIONS OF THE INVESTORS.
(a) At least three (3) Business Days prior to the first anticipated
filing date of a Registration Statement, the Company shall notify each Investor
in writing of the information the Company requires from each such Investor if
such Investor elects to have any of such Investor's Registrable Securities
included in such Registration Statement. It shall be a condition precedent to
the obligations of the Company to complete the registration pursuant to this
Agreement with respect to the Registrable Securities of a particular Investor
that such Investor shall furnish to the Company such information regarding
itself, the Registrable Securities held by it and the intended method of
disposition of the Registrable Securities held by it as shall be reasonably
required to effect the effectiveness of the registration of such Registrable
Securities and shall execute such documents in connection with such registration
as the Company may reasonably request. Each
10
Investor shall promptly notify the Company of any material change with respect
to such information previously provided to the Company by such Investor.
(b) Each Investor agrees to cooperate with the Company as reasonably
requested by the Company in connection with the preparation and filing of any
Registration Statement hereunder, unless such Investor has notified the Company
in writing of such Investor's election to exclude all of such Investor's
Registrable Securities from such Registration Statement, in which case, such
Investor does not need to cooperate with the Company until it notifies the
Company of its desire to include one or more shares of the Registrable
Securities in such Registration Statement.
(c) Each Investor agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3(g) or
3(n) of this Agreement or the first sentence of Section 3(f) of this Agreement,
such Investor will immediately discontinue disposition of Registrable Securities
pursuant to any Registration Statements covering such Registrable Securities
until such Investor's receipt of the copies of the amended or supplemented
prospectus contemplated by Section 3(g) of this Agreement or the first sentence
of Section 3(f) of this Agreement or receipt of notice that no amendment or
supplement is required and, if so directed by the Company, such Investor shall
deliver to the Company (at the expense of the Company) or destroy (and deliver
to the Company a certificate of destruction) all copies of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice (other than a single file copy, which such Investor may keep) in such
Investor's possession.
SECTION 5. EXPENSES OF REGISTRATION. All expenses, other than
underwriting discounts and commissions, incurred in connection with
registrations, filings or qualifications pursuant to Sections 2 and 3 of this
Agreement, including, without limitation, all registration, listing and
qualifications fees, printers and accounting fees, transfer agent fees and fees
and disbursements of counsel for the Company, shall be paid by the Company. The
Company shall pay all fees and disbursements relating to the qualification of
the Indenture under the TIA. The Company shall also reimburse the Investors for
the fees and disbursements of Legal Counsel in connection with registration,
filing or qualification pursuant to Sections 2 and 3 of this Agreement which
amount shall be limited to Ten Thousand United States Dollars ($10,000) for each
Registration Statement. The Company shall pay all of the Investors' reasonable
costs (including fees and disbursements of Legal Counsel) incurred in connection
with the successful enforcement of the Investors' rights under this Agreement.
SECTION 6. INDEMNIFICATION. In the event any Registrable Securities
are included in a Registration Statement under this Agreement:
(a) To the fullest extent permitted by law, the Company will, and
hereby does, indemnify, hold harmless and defend each Investor, the directors,
officers, members, partners, employees, agents, representatives of, and each
Person, if any, who controls any Investor within the meaning of the Securities
Act or the Exchange Act (each, an "Indemnified Person"), against any losses,
claims, damages, liabilities, judgments, fines, penalties, charges, costs,
reasonable attorneys' fees, amounts paid in settlement or expenses, joint or
several, (collectively, "Claims") incurred in investigating, preparing or
defending any action, claim, suit, inquiry, proceeding, investigation or appeal
taken from the foregoing by or before any court or governmental,
11
administrative or other regulatory agency, body or the Commission, whether
pending or threatened, whether or not an indemnified party is or may be a party
thereto ("Indemnified Damages"), to which any of them may become subject insofar
as such Claims (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact in a Registration Statement or any
amendment (including post-effective amendments) or supplement thereto or in any
filing made in connection with the qualification of the offering under the
securities or other "blue sky" laws of any jurisdiction in which the Registrable
Securities are offered ("Blue Sky Filing"), or the omission or alleged omission
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus if
authorized for use by the Company prior to the effective date of such
Registration Statement, or contained in the final prospectus (as amended or
supplemented, if any) or the omission or alleged omission to state therein any
material fact necessary to make the statements made therein, in light of the
circumstances under which the statements therein were made, not misleading,
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any other law, including, without limitation, any state
securities law, or any rule or regulation thereunder relating to the offer or
sale of the Registrable Securities pursuant to a Registration Statement, or (iv)
any material violation of this Agreement by the Company (the matters in the
foregoing clauses (i) through (iv) being, collectively, "Violations"). Subject
to Section 6(c) of this Agreement, the Company shall reimburse the Indemnified
Persons, promptly as such expenses are incurred and are due and payable, for any
legal fees or other reasonable expenses incurred by them in connection with
investigating or defending any such Claim. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 6(a) and the agreement with respect to contribution contained in Section
7 of this Agreement: (i) shall not apply to a Claim by an Indemnified Person
arising out of or based upon a Violation which occurs in reliance upon and in
conformity with information furnished in writing to the Company by such
Indemnified Person or its legal counsel expressly for use in connection with the
preparation of the Registration Statement or any such amendment thereof or
supplement thereto; (ii) shall not be available to the extent such Claim is
based on a failure of the Investor to deliver or to cause to be delivered the
prospectus made available by the Company, including a corrected prospectus, if
such prospectus or corrected prospectus was timely made available by the Company
pursuant to Section 3(d) of this Agreement; and (iii) shall not apply to amounts
paid in settlement of any Claim if such settlement is effected without the prior
written consent of the Company, which consent shall not be unreasonably
withheld, conditioned or delayed. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Indemnified
Person and shall survive the transfer of the Registrable Securities by the
Investors pursuant to Section 9 of this Agreement.
(b) In connection with any Registration Statement in which an
Investor is participating, each such Investor agrees to severally and not
jointly indemnify, hold harmless and defend, to the same extent and in the same
manner as is set forth in Section 6(a) of this Agreement, the Company, each of
its directors, each of its officers who signs the Registration Statement, its
agents and each Person, if any, who controls the Company within the meaning of
the Securities Act or the Exchange Act (each, an "Indemnified Party"), against
any Claims or Indemnified Damages to which any of them may become subject, under
the Securities Act, the Exchange Act or otherwise, insofar as such Claims or
Indemnified Damages arise out of or are
12
based upon any Violation (including for purposes of this paragraph, a material
violation of this Agreement by the Investor), in each case to the extent, and
only to the extent, that such Violation occurs in reliance upon and in
conformity with written information furnished to the Company by such Investor or
its legal counsel expressly for use in connection with such Registration
Statement and, subject to Section 6(c) of this Agreement, such Investor will
reimburse any legal or other expenses reasonably incurred by an Indemnified
Party in connection with investigating or defending any such Claim; provided,
however, that the indemnification agreement contained in this Section 6(b) and
the agreement with respect to contribution contained in Section 7 of this
Agreement shall not apply to amounts paid in settlement of any Claim if such
settlement is effected without the prior written consent of such Investor, which
consent shall not be unreasonably withheld or delayed; provided, further, that
the Investor shall be liable under this Section 6(b) for only that amount of the
Claims and Indemnified Damages as does not exceed the net proceeds to such
Investors as a result of the sale of Registrable Securities giving rise to such
liability. Such indemnification agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of such Indemnified Party
and shall survive the transfer of the Registrable Securities by the Investors
pursuant to Section 9 of this Agreement. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 6(b) shall not inure to the benefit of any Indemnified Party if the
untrue statement or omission of material fact contained in the preliminary
prospectus was corrected on a timely basis in the prospectus, as then amended or
supplemented.
(c) Promptly after an Indemnified Person or Indemnified Party under
this Section 6 has knowledge of any Claim as to which such Indemnified Person or
Indemnified Party reasonably believes indemnity may be sought or promptly after
such Indemnified Person or Indemnified Party receives notice of the commencement
of any action or proceeding (including any governmental action or proceeding)
involving a Claim, such Indemnified Person or Indemnified Party shall, if a
Claim in respect thereof is to be made against any indemnifying party under this
Section 6, deliver to the indemnifying party a written notice of such Claim, and
the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified Person or
the Indemnified Party, as the case may be; provided, however, that an
Indemnified Person or Indemnified Party shall have the right to retain its own
counsel if, in the reasonable opinion of counsel retained by the indemnifying
party, the representation by such counsel of the Indemnified Person or
Indemnified Party and the indemnifying party would be inappropriate due to
actual or potential differing interests between such Indemnified Person or
Indemnified Party and any other party represented by such counsel in such
proceeding; provided, further, that the indemnifying party shall not be
responsible for the reasonable fees and expense of more than one (1) separate
legal counsel for such Indemnified Person or Indemnified Party. In the case of
an Indemnified Person, the legal counsel referred to in the immediately
preceding sentence shall be selected by the Investors holding at least a
majority in interest of the Registrable Securities included in the Registration
Statement to which the Claim relates. The Indemnified Party or Indemnified
Person shall cooperate fully with the indemnifying party in connection with any
negotiation or defense of any such action or Claim by the indemnifying party and
shall furnish to the indemnifying party all information reasonably available to
the Indemnified Party or Indemnified Person which relates to such action or
Claim. The indemnifying party shall keep the Indemnified Party or Indemnified
Person fully apprised at all
13
times as to the status of the defense or any settlement negotiations with
respect thereto. No indemnifying party shall be liable for any settlement of any
action, claim or proceeding effected without its prior written consent;
provided, however, that the indemnifying party shall not unreasonably withhold,
delay or condition its consent. No indemnifying party shall, without the prior
written consent of the Indemnified Party or Indemnified Person, consent to entry
of any judgment or enter into any settlement or other compromise which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party or Indemnified Person of a full release from all
liability in respect to such Claim and action and proceeding. After
indemnification as provided for under this Agreement, the rights of the
indemnifying party shall be subrogated to all rights of the Indemnified Party or
Indemnified Person with respect to all third parties, firms or corporations
relating to the matter for which indemnification has been made. The failure to
deliver written notice to the indemnifying party as provided in this Agreement
shall not relieve such indemnifying party of any liability to the Indemnified
Person or Indemnified Party under this Section 6, except to the extent that the
indemnifying party is prejudiced in its ability to defend such action.
(d) No Person involved in the sale of Registrable Securities who is
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) in connection with such sale shall be entitled to
indemnification from any Person involved in such sale of Registrable Securities
who is not guilty of fraudulent misrepresentation.
(e) The indemnification required by this Section 6 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 Indemnified Damages are incurred.
(f) The indemnification agreements contained herein shall be in
addition to (i) any cause of action or similar right of the Indemnified Party or
Indemnified Person against the indemnifying party or others, and (ii) any
liabilities the indemnifying party may be subject to pursuant to the law.
SECTION 7. CONTRIBUTION. To the extent any indemnification by an
indemnifying party is prohibited or limited by law, the indemnifying party
agrees to make the maximum contribution with respect to any amounts for which it
would otherwise be liable under Section 6 of this Agreement to the fullest
extent permitted by law; provided, however, that: (i) no contribution shall be
made under circumstances where the maker would not have been liable for
indemnification under the fault standards set forth in Section 6 of this
Agreement, (ii) no Person involved in the sale of Registrable Securities who is
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) in connection with such sale shall be entitled to
contribution from any Person involved in such sale of Registrable Securities who
is not guilty of fraudulent misrepresentation, and (iii) contribution by any
seller of Registrable Securities shall be limited in amount to the dollar amount
of the proceeds (net of all expenses paid by such holder in connection with any
claim relating to Section 6 or this Section 7 and the amount of any damages such
holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission) received by it upon the sale
of the Registrable Securities giving rise to such contribution obligation. The
provisions of this Section 7 shall remain in full force and effect, regardless
of the investigation
14
made by or on behalf of the beneficiaries of this Section 7 and shall survive
the transfer of Registrable Securities by the Investors pursuant to Section 9 of
this Agreement.
SECTION 8. REPORTING.
(a) Reports Under The Exchange Act. With a view to making available
to the Investors the benefits of Rule 144 promulgated under the Securities Act
or any other similar rule or regulation of the Commission that may at any time
permit the Investors to sell securities of the Company to the public without
registration ("Rule 144"), the Company shall use reasonable efforts to:
(1) make and keep public information available, as those terms
are understood and defined in Rule 144;
(2) file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act
and the Exchange Act; and
(3) furnish to each Investor, so long as such Investor owns
Registrable Securities, promptly upon request, (A) a written
statement by the Company, if true, that it has complied with the
applicable reporting requirements of Rule 144, the Securities Act
and the Exchange Act, (B) a copy of the most recent annual or
quarterly report of the Company and copies of such other reports and
documents so filed by the Company, and (C) such other information as
may be reasonably requested to permit the Investors to sell such
securities pursuant to Rule 144 without registration.
(b) Rule 144A Information. The Company shall, upon request of any
Investor, make available to such Investor the information required by Rule
144A(d)(4) (or any successor rule) under the Securities Act.
SECTION 9. ASSIGNMENT OF REGISTRATION RIGHTS. The rights under this
Agreement shall be automatically assignable by the Investors to any transferee
of all or any portion of such Investor's Registrable Securities if: (i) the
Investor agrees in writing with the transferee or assignee to assign such
rights, and a copy of such agreement is furnished to the Company within a
reasonable time after such assignment; (ii) the Company is, within a reasonable
time after such transfer or assignment, furnished with written notice of (a) the
name and address of such transferee or assignee, and (b) the securities with
respect to which such rights are being transferred or assigned; (iii)
immediately following such transfer or assignment, the further disposition of
such securities by the transferee or assignee is restricted under the Securities
Act and applicable state securities laws; (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this sentence, the
transferee or assignee agrees in writing with the Company to be bound by all of
the obligations of an Investor under this Agreement; (v) such transfer shall
have been made in accordance with the applicable requirements of the Securities
Purchase Agreement, the Indenture, the Notes, the Warrant Agent Agreement, and
the Warrants; and (vi) such transfer shall have been conducted in accordance
with all applicable federal and state securities laws.
15
SECTION 10. AMENDMENT OF REGISTRATION RIGHTS. Any provision of this
Agreement may be amended and the observance of any provision of this Agreement
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and Investors who then hold at least a majority of the Conversion Shares or
Warrant Shares, determined as if all of the Notes held by Investors then
outstanding have been converted into Conversion Shares and all Warrants then
outstanding have been exercised for Warrant Shares without regard to any
limitations on conversion of the Notes or on the exercise of the Warrants. Any
amendment or waiver effected in accordance with this Section 10 shall be binding
upon each Investor and the Company. No such amendment shall be effective to the
extent that it applies to less than all of the holders of the Registrable
Securities. No consideration shall be offered or paid to any Person to amend or
consent to a waiver or modification of any provision of any of this Agreement
unless the same consideration also is offered to all of the parties to this
Agreement.
SECTION 11. MISCELLANEOUS.
(a) A Person is deemed to be a holder of Registrable Securities
whenever such Person owns or is deemed to own of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more Persons with respect to the same Registrable
Securities, the Company shall act upon the basis of instructions, notice or
election received from such record owner of such Registrable Securities.
(b) Any notices, consents, waivers or other communications required
or permitted to be given under the terms of this Agreement must be in writing
and will be deemed to have been delivered: (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (evidenced by mechanically
or electronically generated receipt by the sender's facsimile machine); or (iii)
one (1) Business Day after deposit with a nationally recognized overnight
delivery service, in each case properly addressed to the party to receive the
same. The addresses and facsimile numbers for such communications shall be:
16
If to the Company:
Rockford Corporation
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Mr. W. Xxxx Xxxxxx
with a copy to:
Steptoe & Xxxxxxx LLP
000 X. Xxxxxxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000)000-0000
Attention: Xxxxx Xxxxx, Esq.
If to Xxxxx Xxxxxxx & Co.:
Xxxxx Xxxxxxx & Co.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxxx Xxxxx
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxx, Esq.
If to Legal Counsel:
Xxxxxx, Xxxx & Xxxxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxx, Esq.
17
If to a Buyer, to its address and facsimile number set forth on
the Schedule of Buyers attached hereto as Exhibit A, with copies
to such Buyer's representatives as set forth on the Schedule of
Buyers,
or to such other address and/or facsimile number and/or to the attention of such
other Person as the recipient party has specified by written notice given to
each other party. Written confirmation of receipt (A) given by the recipient of
such notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by a nationally recognized overnight delivery
service shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.
(c) Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
(d) All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by the internal laws of
the State of New York, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of New York or any other
jurisdictions) that would cause the application of the laws of any jurisdictions
other than the State of New York. Each party hereby irrevocably submits to the
non-exclusive jurisdiction of the state and federal courts sitting the City of
New York, borough of Manhattan, for the adjudication of any dispute hereunder or
in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
If any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND
AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
(e) This Agreement, the Securities Purchase Agreement, the
Indenture, the Notes, the Warrant Agent Agreement, the Warrants, the Security
Agreement, the Intercreditor Agreement and the documents referenced herein and
therein constitute the entire agreement among the parties hereto with respect to
the subject matter hereof and thereof. There are no
18
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein and therein. This Agreement, the Securities Purchase
Agreement, the Indenture, the Notes, the Warrant Agent Agreement, the Warrants,
the Security Agreement and the Intercreditor Agreement supersede all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof and thereof.
(f) Subject to the requirements of Section 9 of this Agreement, this
Agreement shall inure to the benefit of and be binding upon the permitted
successors and assigns of each of the parties hereto.
(g) The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(h) This Agreement may be executed in identical counterparts, each
of which shall be deemed an original but all of which shall constitute one and
the same agreement. This Agreement, once executed by a party, may be delivered
to the other parties hereto by facsimile transmission of a copy of this
Agreement bearing the signature of the party so delivering this Agreement.
(i) Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
(j) All consents and other determinations required to be made by the
Investors pursuant to this Agreement shall be made, unless otherwise specified
in this Agreement, by Investors holding at least a majority of the Conversion
Shares or Warrant Shares, determined as if all of the Notes held by Investors
then outstanding have been converted into Conversion Shares and all Warrants
then outstanding have been exercised for Warrant Shares without regard to any
limitations on conversion of the Notes or on the exercise of the Warrants.
(k) This Agreement is intended for the benefit of the parties hereto
and their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other Person.
19
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of day and year first above written.
"COMPANY"
ROCKFORD CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Its: Chief Financial Officer
-----------------------
"XXXXX XXXXXXX "
XXXXX XXXXXXX & CO.
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------
Its: Managing Director
-----------------------
[Signatures of Buyers on Following Page]
S-1
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
"BUYER"
-------------------------------------------
(print full legal name of Buyer)
By:
----------------------------------------
(signature of authorized representative)
Name:
--------------------------------------
Its:
--------------------------------------
EXHIBIT A TO REGISTRATION RIGHTS AGREEMENT
SCHEDULE OF BUYERS
A-1
SECTION 1. Definitions..........................................1
SECTION 2. Registration.........................................2
SECTION 3. Related Obligations..................................5
SECTION 4. Obligations Of The Investors........................10
SECTION 5. Expenses Of Registration............................11
SECTION 6. Indemnification.....................................11
SECTION 7. Contribution........................................14
SECTION 8. Reporting...........................................14
SECTION 9. Assignment of Registration Rights...................14
SECTION 10. Amendment of Registration Rights....................15
SECTION 11. Miscellaneous.......................................15
EXHIBIT A Schedule of Buyers.................................A-1
