EXHIBIT 10.3
------------
Registration Rights Agreement
This Registration Rights Agreement ("Agreement") is entered into as of the
16th day of July 1999 by and between Wisconsin Central Transportation
Corporation, a Delaware corporation ("Company"), and Xxxxxx X. Xxxxxxxxx
("Xxxxxxxxx").
The Company and Xxxxxxxxx agree as follows:
1. Definitions
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "Common Stock" means the outstanding common stock of the Company.
(c) "Maximum Feasible Quantity" is defined pursuant to Section 8 of
this Agreement.
2. Demand Registration
Xxxxxxxxx may exercise demand registration rights pursuant to this
Agreement by providing the Company with a written notice during the term of this
Agreement. The notice shall specify that it is being made pursuant to this
Section 2 and include a request by Xxxxxxxxx that the Company file a
registration statement, or a similar document pursuant to any other statute then
in effect corresponding to the 1933 Act, covering the registration of Common
Stock owned by Xxxxxxxxx with a proposed aggregate offering price to the public
of not less than $25,000,000. Subject to Section 8 of this Agreement and receipt
of proper notice, the Company shall use its best efforts to cause the Common
Stock specified in the notice to be registered under the 1933 Act.
Notwithstanding the foregoing, the Company shall not be obligated to effect a
registration pursuant to this Section 2 (i) during the period starting with the
date 45 days prior to the Company's estimated date of filing of, and ending on a
date 120 days following the effective date of, a registration statement
pertaining to an underwritten public offering of Common Stock for the account of
the Company, provided that the Company is actively employing in good faith all
reasonable efforts to cause such registration statement to become effective and
that the Company's estimate of the date of filing such registration statement is
made in good faith and (ii) during any period of up to 90 days during which the
Company reasonably determines that the registration would be materially adverse
to the Company, provided that the Company makes such determination in good
faith. The Company shall be obligated to effect only two registrations pursuant
to this Section 2. Subject to the provisions of Section 8 of this Agreement, the
Company shall be permitted to cause to be registered shares of its Common Stock
in connection with any registration effected pursuant to this Section 2. If the
Company registers and sells a number of shares of Common Stock equal to 50% or
more of the total number of shares registered and sold pursuant to a
registration requested pursuant to this Section 2, the registration shall be
considered a registration pursuant to Section 3 of this Agreement. Any request
for registration pursuant to this Section 2 may be for either a firmly
underwritten public offering or a "best efforts" offering, in each case to be
managed by an underwriter or underwriters of recognized national standing
designated by Xxxxxxxxx and reasonably acceptable to the Company.
3. Piggyback Registration
If at any time during the term of this Agreement the Company determines to
register any of its Common Stock (whether newly issued or outstanding and
whether pursuant to a demand made under Section 2 of this Agreement or
otherwise) under the 1933 Act in connection with the public offering of such
Common Stock solely for cash on a form that would also permit the registration
of Common Stock owned by Xxxxxxxxx, the Company shall, each such time, promptly
give Xxxxxxxxx written notice of that determination. Xxxxxxxxx may exercise
piggyback registration rights by providing a written request within 30 days
after receipt of such notice from the Company. Subject to Section 8 of this
Agreement and receipt of a proper request from Xxxxxxxxx, the Company shall use
its best efforts to cause the Common Stock specified in the request to be
registered under the 0000 Xxx. The Company may elect either not to file or to
withdraw the filing of any registration statement filed pursuant to this Section
3 at any time prior to the effectiveness of the registration statement.
4. Withdrawal of Requests
At any time prior to the effectiveness of a requested registration,
Xxxxxxxxx may withdraw his request for registration. If the request for
registration was made pursuant to Section 2 of this Agreement, upon withdrawal
Xxxxxxxxx shall forfeit one demand right unless (i) prior to the effective date
of the registration statement, there shall have occurred a material adverse
change in the business or condition (financial or otherwise) of the Company and
its subsidiaries, which change was not known to Xxxxxxxxx at the time of his
request or (ii) the request was made within 45 days after the end of the fiscal
year and the audited financial statements of the Company for that year and at
that year-end when subsequently available materially and adversely differ from
the information known to Xxxxxxxxx at the time of his request.
5. Obligations of the Company
Whenever required pursuant to Section 2 or Section 3 of this Agreement to
use its best efforts to effect the registration of any Common Stock, the Company
shall:
(a) as expeditiously as reasonably possible, prepare and file with the
Securities and Exchange Commission ("SEC", which term includes any
successor agency) a registration statement with respect to that Common
Stock and use its best efforts to cause that registration statement to
become and remain effective under the 1933 Act, provided that the Company
shall not be required to file a registration statement pursuant to Section
2 of this Agreement prior to 60 days after receipt of the proper notice;
(b) as expeditiously as reasonably possible, prepare and file with the SEC such
amendments and supplements to the registration statement and the prospectus
used in connection with the registration statement as may be necessary to
comply with the provisions of the 1933 Act with respect to the disposition
of all securities covered by the registration statement;
(c) as expeditiously as reasonably possible, furnish to Xxxxxxxxx such numbers
of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the 1933 Act, and such other documents
as he may reasonably request in order to facilitate the disposition of the
Common Stock owned by him; and
(d) as expeditiously as reasonably possible, use its best efforts to register
and qualify the securities covered by the registration statement under the
securities or Blue Sky laws of such jurisdictions as shall be reasonably
appropriate or reasonably requested by the underwriter for the distribution
of the securities covered by the registration statement; provided, however,
that the Company shall not be required by this provision to qualify to do
business or to file a general consent to service of process in any
jurisdiction.
6. Obligations of Xxxxxxxxx
It shall be a condition precedent to the obligations of the Company to take
any action pursuant to this Agreement that Xxxxxxxxx shall furnish to the
Company such information and documents regarding himself, the Common Stock held
by him and the intended method of disposition of that Common Stock as the
Company shall reasonably request in connection with the action to be taken by
the Company.
7. Expenses
In the case of a registration pursuant to Section 2 or Section 3 of this
Agreement, the Company shall bear all expenses incurred in connection with the
registration excluding underwriters' discounts and commissions and fees and
disbursements of legal counsel for Xxxxxxxxx.
8. Underwriting Requirements
(a) In connection with any offering involving an underwriting of shares of
Common Stock pursuant to Section 2 of this Agreement, the Company shall be
permitted to include shares in the underwriting to the extent those shares
do not cause the total number of shares in the underwriting, in the written
opinion of the underwriters, to exceed the maximum number of shares that
can be marketed at a price reasonably related to the then current market
price for those shares or otherwise materially and adversely affect the
offering ("Maximum Feasible Quantity"). If the quantity of shares that the
Company requests be included in the offering, when added to the shares of
Common Stock being registered at Xxxxxxxxx'x request, exceeds the Maximum
Feasible Quantity, the Company shall include in the offering only so many
shares as do not, when added to the shares of Common Stock being registered
at Xxxxxxxxx'x request, exceed the Maximum Feasible Quantity. In such
event, the Company shall have the right to sell the shares which exceeded
the Maximum Feasible Quantity to the underwriters for the purpose of
covering over-allotments, if any.
(b) In connection with any offering involving an underwriting of shares of
Common Stock pursuant to Section 3 of this Agreement, the Company shall not
be required to include any of Xxxxxxxxx'x Common Stock in the underwriting
unless Xxxxxxxxx accepts the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it. Furthermore, the
Company shall only be required to include Xxxxxxxxx'x shares of Common
Stock in the underwriting to the extent that his shares do not cause the
total number of shares in the underwriting, in the written opinion of the
underwriters, to exceed the Maximum Feasible Quantity for that
registration. If the quantity of shares of Common Stock that Xxxxxxxxx
requests be included in the offering, when added to the shares being issued
by the Company, exceeds the Maximum Feasible Quantity, the Company shall be
required to include in the offering only so many shares of Xxxxxxxxx'x
Common Stock as do not, when added to the shares being issued by the
Company, exceed the Maximum Feasible Quantity. In such event, Xxxxxxxxx
shall have the right, prior to any right of the Company, to sell his Common
Stock which exceeded the Maximum Feasible Quantity to the underwriters for
the purpose of covering over-allotments, if any. Upon the sale by Xxxxxxxxx
of all such Common Stock which exceeded the Maximum Feasible Quantity, the
Company shall then have the right to sell additional shares for the
purposes of covering additional over-allotments.
9. Indemnification
In the event any Common Stock is included in a registration statement
pursuant to this Agreement:
(a) To the extent permitted by law, the Company shall indemnify and hold
harmless Xxxxxxxxx, any underwriter (within the meaning of the 0000 Xxx)
for the Company or acting on behalf of Xxxxxxxxx and each person who
controls such underwriter (within the meaning of the 0000 Xxx) against any
losses, claims, damages or liabilities, joint or several, to which they may
become subject under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based on any untrue or allegedly untrue statement of any material
fact contained in the registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arise out of any violation by the Company of the 1933 Act or the Securities
Exchange Act of 1934 or any rule or regulation promulgated under either of
those Acts applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration, and shall
reimburse Xxxxxxxxx or any such underwriter or controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action. Notwithstanding any provision to the contrary contained in this
Section 9, the Company shall not be liable for any such loss, claim,
damage, liability or action to the extent that it arises out of or is based
upon an untrue statement or allegedly untrue statement or omission or
alleged omission made in connection with such registration statement,
preliminary prospectus, final prospectus or amendments or supplements
thereto in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by
Xxxxxxxxx or any such underwriter or controlling person.
(b) To the extent permitted by law, Xxxxxxxxx shall indemnify and hold harmless
the Company, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls the Company
(within the meaning of the 1933 Act), each agent and any underwriter
(within the meaning of the 0000 Xxx) for the Company or acting on behalf of
Xxxxxxxxx and each person, if any, who controls such underwriter (within
the meaning of the 0000 Xxx) against any losses, claims, damages or
liabilities, joint or several, to which they may become subject, under the
1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon
any untrue or allegedly untrue statement of any material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or allegedly untrue statement or
omission or alleged omission was made in such registration statement,
preliminary or final prospectus, or amendments or supplements thereto, in
reliance upon and in conformity with written information furnished by
Xxxxxxxxx expressly for use in connection with such registration, and
Xxxxxxxxx shall reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer, agent, underwriter or
controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action. Notwithstanding any provision to
the contrary contained in this Section 9, Xxxxxxxxx shall not be required
to make any indemnification or reimbursement payments pursuant to this
Section 9 in an amount in excess of the proceeds received by Xxxxxxxxx from
the sale pursuant to such registration.
(c) If a party entitled to indemnification under this Section 9 intends to
pursue a claim for indemnification pursuant to this Section 9 with respect
to any action, such party shall notify the party from whom they will be
seeking indemnification promptly after receipt of notice of the
commencement of such action. The indemnifying party shall have the right to
participate in and, to the extent the indemnifying party so desires,
jointly with any other indemnifying parties similarly notified, to assume
the defense thereof with counsel selected by the indemnifying party and
reasonably satisfactory to the indemnified party. The failure to notify an
indemnifying party promptly of the commencement of any such action, if
prejudicial in any material respect to his, her or its ability to defend
such action, shall relieve such indemnifying party of liability to the
indemnified party pursuant to this Section 9 to the extent, but only to the
extent, that the indemnified party was prejudiced by the delay. The
omission to so notify the indemnifying party shall not relieve him, her or
it of any liability that he, she or it may have to any indemnified party
otherwise than pursuant to this Section 9.
10. Miscellaneous
Entire Agreement. This Agreement sets forth the entire understanding of the
parties and supersedes all prior agreements, arrangements and communications,
whether oral or written, with respect to the subject matter of this Agreement.
Assignment. This Agreement shall inure to the benefit of Xxxxxxxxx and his
heirs, executors and personal representatives. Xxxxxxxxx may not otherwise
assign any of his rights under this Agreement.
Amendment and Modification. This Agreement shall not be amended or modified
without the consent of both the Company and Xxxxxxxxx.
Termination. This Agreement shall terminate three years from the date of
this Agreement.
Headings. The headings appearing in this Agreement are for convenience only
and shall not be deemed to explain, limit or amplify the provisions of this
Agreement.
Notices. All notices and other communications necessary or contemplated
pursuant to this Agreement shall be in writing and shall be delivered
personally, sent by certified or registered U.S. mail, return receipt requested,
postage prepaid or sent prepaid by a nationally recognized overnight courier
with guaranteed delivery at the addresses set forth below (or such other
addresses as shall be specified by the parties). Such notices or other
communications shall be deemed given:
In the case of certified or registered U.S. mail, five days after deposit
in the U.S. mail; or
In the case of delivery by a nationally recognized overnight courier, the
day designated for delivery;
provided, however, that in no event shall any such notices or communications be
deemed to be given later than the date they are actually received.
Communications that are to be delivered by the U.S. mail or by overnight courier
shall be delivered to the following addresses:
If to the Company:
Wisconsin Central Transportation Corporation
One X'Xxxx Centre, Suite 9000
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Power, Jr.
Phone: 000-000-0000
Facsimile: 000-000-0000
With a copy to:
Xxxxxx Xxxxxx & Xxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxx
Phone: 000-000-0000
Facsimile: 312-258-5600
and
McLachlan, Xxxxxxx & Doll
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx / Xxxx X. Xxxx
Phone: 000-000-0000
Facsimile: 312-266-3330
If to Xxxxxxxxx:
Xxxxxx X. Xxxxxxxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Facsimile: same number (call first)
With a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx / Xxxxx Xxxxx
Phone: 000-000-0000
Facsimile: 312-876-7934
Each party, by written notice to the other party, may modify the applicable
delivery address, except that notice of change of address shall be effective
only upon receipt.
Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware without giving effect
to principles of conflicts of laws.
Severability. Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one instrument.
Wisconsin Central Transportation Corporation
Xxxxxx X. Xxxxxxxxx
By:
Printed Name:
Title:
