Exhibit 4.16
REGISTRATION RIGHTS AGREEMENT (WARRANTS)
202
EXHIBIT B-2
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REGISTRATION RIGHTS
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Warrants
Terms defined in the Bridge Financing Agreement dated as of December 1,
1999 (the "Agreement"), among Citation Corporation (the "Company") and Citation
Funding, Inc., a Delaware corporation, First Union Investors, Inc., a North
Carolina corporation (each individually, a "Purchaser" and collectively, the
"Purchasers") and The Chase Manhattan Bank, a New York banking corporation,
(together with the Purchasers, the "Bridge Parties"), unless defined herein are
used herein as therein defined.
21. Securities Subject
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(a) Definitions.
"Demand Registration" means a Demand Registration, as defined in
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Section 3.
"Holder" means any registered owner from time to time of any
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Obligation.
"Warrant Shares" means the shares of common stock of the Company
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delivered pursuant to any Warrant.
"Piggy-Back Registration" means a Piggy-Back Registration as defined
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in Section 4.
"Registrable Security" means each Warrant Share until (i) a
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registration statement covering such Registrable Security has been declared
effective by the Commission and it has been disposed of pursuant to such
effective registration statement, (ii) it is sold under circumstances in which
all of the applicable conditions of Rule 144 (or any similar provisions then in
force) under the Securities Act are met or may be sold pursuant to Rule 144(k)
or (iii) it has been otherwise transferred, the Company has delivered a new
certificate or other evidence of ownership for it not bearing the legend
required pursuant to the Agreement and it may be resold without subsequent
registration under the Securities Act.
"Required Holders" means the Holder(s) of (or any Underwriter for) 25%
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or more in aggregate principal amount of the Registrable Securities.
"Selling Holder" means a Holder who is selling Registrable Securities
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pursuant to a registration statement.
"Shelf Registration" means the shelf registration filed by the Company
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with respect to the Warrant Shares.
"Underwriter" means a securities dealer that purchases any Registrable
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Securities as principal and not as part of such dealer's market-making
activities.
"Warrant" means any Warrant issued by the Company pursuant to the
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Agreement.
22. RESERVED
23. Demand Registration
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(a) Request for Registration. If a Shelf Registration with respect to
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the Warrant Shares, is not effective under the Securities Act within 90 days of
each Release Date (as defined in the Escrow Agreement), the Required Holders may
after such 90-day period make a written request for registration under the
Securities Act ("Demand Registration'') of all or part of its or their
Registrable Securities; provided that the Company shall not be obligated to
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effect more than two (2) Demand Registrations in respect of the Warrant Shares
and provided, further that, in any case, no Demand Registration need be effected
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if a Shelf Registration or other registration which includes such Registrable
Securities has become effective. Such request will specify the aggregate
principal amount
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of Registrable Securities proposed to be sold and will also specify the intended
method of disposition thereof. Within 10 days after receipt of such request, the
Company will give written notice of such registration request to all other
Holders of the Registrable Securities and include in such registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein from the Holders thereof within 15 Business Days
after receipt by the applicable Holder of the Company's notice. Each such
request will also specify the aggregate principal amount of Registrable
Securities to be registered and the intended method of disposition thereof.
Unless the Holder or Holders (the "Majority Holders") of a majority of the
Registrable Securities to be registered in such Demand Registration shall
consent in writing, no other party, including the Company (but excluding another
Holder of a Registrable Security), shall be permitted to offer securities under
any such Demand Registration. The Company shall use their best efforts to keep
the Shelf Registration discussed in this section 3(a) continuously effective,
supplemented and amended as required by and subject to the provisions of the
Agreement, and to ensure that it conforms with the requirements of the
Agreement, the Act and the polices, rules and regulations of the Commission as
announced from time to time, for a period of at least 180 days following the
date on which such Shelf Registration first becomes effective under the Act.
(b) Effective Registration and Expenses. A registration will not count
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as a Demand Registration until it has become effective (unless the Holders
demanding such registration withdraw the Registrable Securities, in which case
such demand will count as a Demand Registration unless the Holders of such
Registrable Securities agree to pay all Registration Expenses (as hereinafter
defined)). Except as provided above, the Company will pay all Registration
Expenses in connection with any registration initiated as a Demand Registration,
whether or not it becomes effective.
(c) Priority on Demand Registrations. If the Holder or Majority
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Holders so elect, the offering of such Registrable Securities pursuant to such
Demand Registration shall be in the form of an underwritten offering. In such
event, if the managing Underwriter or Underwriters of such offering advise the
Company and the Holders in writing that in their opinion the aggregate principal
amount of Registrable Securities requested to be included in such offering is
sufficiently large to materially and adversely affect the success of such
offering, the Company will include in such registration the aggregate amount of
Registrable Securities which in the opinion of such managing Underwriter or
Underwriters can be sold without any such material adverse effect, and such
amount shall be allocated pro rata among the Holders of Registrable Securities
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on the basis of the amount of Registrable Securities requested to be included in
such registration by each such Holder. To the extent Registrable Securities so
requested to be registered are excluded from the offering, the Holders of such
Registrable Securities, as a group, shall have the right to one additional
Demand Registration under this section.
(d) Selection of Underwriters. If any Demand Registration is in the
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form of an underwritten offering, the Bridge Parties or the Majority Holders
shall designate, with the approval of the Company, such approval not to be
unreasonably withheld or delayed, the Underwriter or a group of Underwriters to
be utilized in connection with a public offering of the applicable issue of
Registrable Securities.
24. Piggy-Back Registration
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(a) If the Company proposes to file a registration statement under the
Securities Act with respect to an offering by the Company for its own account or
for the account of any of its security holders (provided that, in the case of a
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registration on demand of such security holders, the holders of a majority in
aggregate principal amount of any such equity securities consent in writing) of
any class of equity security (other than a registration statement on Form S-4 or
S-8 (or any substitute form that may be adopted by the Commission), the
Company's Shelf Registration or any Demand Registration), then the Company shall
give written notice of such proposed filing to the Holders of Registrable
Securities as soon as practicable (but in no event less than 10 days before the
anticipated filing date), and such notice shall offer such Holders the
opportunity to register such principal amount of Registrable Securities as each
such Holder may request (a "Piggy-Back Registration").
The Company shall use all reasonable efforts to cause the managing Underwriter
or Underwriters of a proposed underwritten offering to permit the Registrable
Securities requested to be included in the registration statement for such
offering to be included on the same terms and conditions as any similar
securities of the Company or of such other security holders included therein.
Notwithstanding the foregoing, if the managing Underwriter or Underwriters of
such offering deliver a written opinion to the Company that either because of
(i) the kind or combination of securities which the Holders, the Company and any
other persons or entities intend to include in such offering or (ii) the size of
the offering which the Holders, the Company and such other persons intend to
make,
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are such that the success of the offering would be materially and adversely
affected by inclusion of the Registrable Securities requested to be included,
then (a) in the event that the size of the offering is the basis of such
managing Underwriter's opinion, the amount of securities to be offered for
the accounts of Holders shall be reduced pro rata (according to the Registrable
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Securities proposed for registration) to the extent necessary to reduce the
total amount of securities to be included in such offering to the amount
recommended by such managing Underwriter or Underwriters; provided that if
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securities are being offered for the account of other persons or entities as
well as the Company, then with respect to the Registrable Securities intended to
be offered by Holders, the proportion by which the amount of such class of
securities intended to be offered by Holders is reduced shall not exceed the
proportion by which the amount of such class of securities intended to be
offered by such other persons or entities is reduced; and (b) in the event that
the kind (or combination) of securities to be offered is the basis of such
managing Underwriter's opinion, (x) the Registrable Securities to be included in
such offering shall be reduced as described in clause (a) above (subject to the
proviso in clause (a)) or, (y) if the actions described in clause (x) would, in
the judgment of the managing Underwriter, be insufficient to substantially
eliminate the adverse effect that inclusion of the Registrable Securities
requested to be included would have on such offering, such Registrable
Securities will be excluded from such offering.
25. Holdback Agreements
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(a) Restrictions on Public Sale by Holder of Registrable Securities.
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Each Holder whose securities are included in a registration statement agrees not
to effect any public sale or distribution of the issue being registered or a
similar security of the Company or any securities convertible into or
exchangeable or exercisable for such securities, including a sale pursuant to
Rule 144 under the Securities Act, during the 14 days prior to, and during the
120-day period beginning on, the effective date of such registration statement
(except as part of such registration), if and to the extent requested by the
Company in the case of a non-underwritten public offering or if and to the
extent requested by the managing Underwriter or Underwriters in the case of an
underwritten public offering.
(b) Restrictions on Public Sale by the Company. The Company agrees (i)
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not to effect any public sale or distribution of any securities similar to those
being registered in accordance with Section 3 or Section 4 hereof, or any
securities convertible into or exchangeable or exercisable for such securities,
during the 14 days prior to, and during the 120-day period beginning on, the
effective date of any registration statement (except as part of such
registration statement (x) where the Holder or Holders of a majority of the
Registrable Securities to be included in such registration statement consent,
(y) where Holders are participating pursuant to Section 4 hereof in such
registration statement and such registration statement was filed by the Company
with respect to the sale of securities by the Company and no Holder is
simultaneously participating in a registration statement pursuant to Section 3
hereof or the commencement of a public distribution of Registrable Securities
other than pursuant to a Shelf Registration); and (ii) that any agreement
entered into after the date of the Agreement pursuant to which the Company
issues or agrees to issue any privately placed securities similar to the
Registrable Securities shall contain a provision under which holders of such
securities agree not to effect any public sale or distribution of any such
securities during the periods described in (i) above, in each case including a
sale pursuant to Rule 144 under the Securities Act (except as part of any such
registration, if permitted); provided, however, that the provisions of this
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paragraph (b) shall not prevent the conversion or exchange of any securities
pursuant to their terms into or for other securities.
26. Registration Procedures
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Whenever the Holders have requested that any Registrable Securities be
registered pursuant to Section 3 hereof, the Company will use all reasonable
efforts to effect the registration of such Registrable Securities in accordance
with the intended method of disposition thereof as quickly as practicable, and
in connection with any such request and with a Shelf Registration, the Company
will as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
on any form for which the Company then qualifies or which counsel for the
Company shall deem appropriate and which form shall be available for the
sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and use all
reasonable efforts to cause such filed registration statement to become
effective within the time period described in Section 3 hereof; provided
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that if the Company shall furnish to the Holders making a request pursuant
to Section 3 a certificate signed by the Chief Executive Officer of the
Company stating that in his good-faith judgment it would be
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significantly disadvantageous to the Company or its shareholders for such a
registration statement to be filed as expeditiously as possible, the
Company shall have a period of not more than 120 days within which to file
such registration statement measured from the date of receipt of the
request in accordance with Section 3; and provided (i) that before filing a
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registration statement or prospectus or any amendments or supplements
thereto, the Company will furnish to counsel selected by the Holder or
Majority Holders copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel, and (ii) that
after the filing of the registration statement, the Company will promptly
notify each Selling Holder covered by such registration statement of 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) 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 (i) in the case of a Shelf Registration, for the period
until the Notes have been redeemed in full and (ii) in connection with a
registration pursuant to Section 3 for a period of not less than 270 days
or such shorter period which will terminate when all Registrable Securities
covered by such registration statement have been sold (but not before the
expiration of the 90-day period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder, if applicable) and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the Selling Holders
thereof set forth in such registration statement;
(c) furnish to each Selling Holder and Underwriter, prior to
filing the registration statement or prospectus or any amendment or
supplement thereto, if requested, copies of such registration statement as
proposed to be filed, and thereafter furnish to such Selling Holder and
Underwriter such number of copies of such registration statement, each
amendment and supplement thereto (in each case including all exhibits
thereto), the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such Selling
Holder or Underwriter may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Selling Holder;
(d) use all reasonable efforts to register or qualify such
Registrable Securities under such securities or blue sky laws of such
jurisdictions in the United States as any Selling Holder or managing
Underwriter reasonably (in light of the intended plan of distribution)
requests and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Selling Holder or managing
Underwriter to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such Selling Holder; provided that the
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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 paragraph (d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction;
(e) use all reasonable efforts to cause such Registrable
Securities to be registered with or approved by such other governmental
agencies or authorities as may be necessary by virtue of the business and
operations of the Company, any Affiliate or any Subsidiary to enable the
Selling Holder or Selling Holders thereof to consummate the disposition of
such Registrable Securities;
(f) notify each Selling Holder of such Registrable Securities, at
any time when a prospectus relating thereto is required to be delivered
under the Securities Act, of the occurrence of an event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading and promptly make available to
each Selling Holder any such supplement or amendment;
(g) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such
Registrable Securities;
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(h) make available for inspection by any Selling Holder of such
Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or
other professional retained by any such Selling Holder or underwriter
(collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of the Company and any
Subsidiary (collectively, the "Records") as shall be reasonably necessary
to enable them to exercise their due diligence responsibility, and cause
the officers, directors and employees of the Company and its Subsidiaries
to supply all information reasonably requested by any such Inspectors in
connection with such registration statement. Records which the Company
determines, in good faith, to be confidential and any Records which it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to avoid
or correct a misstatement or omission in such registration statement or
(ii) the release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction. Each Selling Holder of such
Registrable Securities agrees that information obtained by it as a result
of such inspections shall be deemed confidential and shall not be used by
it as the basis for any market transactions in the securities of the
Company, its Affiliates or its Subsidiaries or otherwise unless and until
such information is made generally available to the public. Each Selling
Holder of such Registrable Securities further agrees that it will, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company at its
expense, to undertake appropriate action to prevent disclosure of the
Records deemed confidential;
(i) in the event such sale is pursuant to an underwritten
offering, use all reasonable efforts to obtain a comfort letter or comfort
letters from the Company's independent public accountants in customary form
and covering such matters of the type customarily covered by comfort
letters, as the Selling Holders of a majority in aggregate principal amount
of the Registrable Securities being sold or the managing Underwriter,
reasonably requests; and
(j) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as reasonably practicable, an
earnings statement covering a period of twelve months, beginning within
three months after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act.
The Company may require each Selling Holder to promptly furnish in
writing to the Company such information regarding the distribution of the
Registrable Securities as it may from time to time reasonably request and such
other information as may be legally required or reasonably requested in
connection with such registration.
Each Selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 6(f)
hereof, such Selling Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Selling Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 6(f) hereof, and, if
so directed by the Company, such Selling Holder will deliver to the Company all
copies, other than permanent file copies then in such Selling Holder's
possession, of the most recent prospectus covering such Registrable Securities
at the time of receipt of such notice. In the event the Company shall give such
notice, the Company shall extend the period during which such registration
statement shall be maintained effective (including the period referred to in
Section 6(b) hereof) by the number of days during the period from and including
the date of the giving of notice pursuant to Section 6(f) hereof to and
excluding the date when the Company shall make available to the Selling Holders
of Registrable Securities covered by such registration statement copies of the
prospectus supplemented or amended to conform with the requirements of Section
6(f) hereof.
27. Registration Expenses
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In connection with any registration statement required to be filed
pursuant to Section 3 or 4 hereunder, the Company shall pay the following
registration expenses (the "Registration Expenses"): (i) all registration and
filing fees, (ii) fees and expenses of compliance with securities or blue sky
laws (including reasonable fees and disbursements of counsel in connection with
blue sky qualifications of the Registrable Securities), (iii) printing expenses,
(iv) internal expenses of the Company (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), (v) the fees and expenses
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incurred in connection with the listing of the Registrable Securities if the
Company shall choose to list such Registrable Securities, (vi) fees and
disbursements of counsel for the Company and customary fees and expenses for
independent certified public accountants retained by the Company (including the
expenses of any comfort letters or costs associated with the delivery by
independent certified public accountants of a comfort letter or comfort letters
requested pursuant to Section 6(i) hereof), (vii) the fees and expenses of any
special experts retained by the Company in connection with such registration,
and (viii) fees and expenses of a single counsel for the Holders (which counsel
shall be selected by the Bridge Parties if the Bridge Parties are Holders)
incurred in connection with the registration hereunder. The Company shall not
have any obligation to pay any underwriting fees, discounts or commissions
attributable to the sale of Registrable Securities, or, except as otherwise
provided in clause (viii) above, any out-of-pocket expenses of the Holders (or
any agents who manage their accounts) or fees and disbursements of any counsel
for any underwriter in any underwritten offering.
28. Indemnification: Contribution
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(a) Indemnification by the Company. The Company agrees to indemnify
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and hold harmless each Selling Holder, its officers, directors and agents, each
Person, if any, who controls such Selling Holder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act or any Affiliate of
such Person, from and against any and all losses, claims, damages, liabilities
and expenses (including reasonable costs of investigation) arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus relating to the
Registrable Securities or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of, or are based
upon, any such untrue statement or omission or allegation thereof based upon
information furnished in writing to the Company by such Selling Holder or on
such Selling Holder's behalf expressly for use therein; provided that with
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respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus, the indemnity agreement contained
in this paragraph shall not apply to the extent that any such loss, claim,
damage, liability or expense results from the fact that a current copy of the
prospectus was not sent or given to the person asserting any such loss, claim,
damage, liability or expense at or prior to the written confirmation of the sale
of the Registrable Securities concerned to such person if it is determined that
it was the responsibility of such Selling Holder to provide such person with a
current copy of the prospectus and such current copy of the prospectus would
have cured the defect giving rise to such loss, claim, damage, liability or
expense. The Company also agrees to enter into an underwriting agreement with
the Underwriters of the Registrable Securities which shall indemnify their
officers, directors and each person who controls such Underwriters on
substantially the same basis as that of the indemnification of the Selling
Holders provided in this Section 8.
(b) Indemnification by Holder of Registrable Securities. Each Selling
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Holder agrees to indemnify and hold harmless the Company, its directors and
officers and agents and each Person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Selling
Holder, but only with respect to information furnished in writing by such
Selling Holder or on such Selling Holder's behalf expressly for use in any
registration statement or prospectus relating to the Registrable Securities, or
any amendment or supplement thereto, or any preliminary prospectus. In case any
action or proceeding shall be brought against the Company, or its directors or
officers or agents, or any such controlling person, in respect of which
indemnity may be sought against such Selling Holder, such Selling Holder shall
have the rights and duties given to the Company, and the Company or its
directors or officers or agents or such controlling person shall have the rights
and duties given to such Selling Holder, by the preceding paragraph. Each
Selling Holder also agrees to indemnify and hold harmless the Bridge Parties and
any Affiliate of the Bridge Parties, including DLJSC, CSI and FUSI, if the
Bridge Parties or any Affiliate of the Bridge Parties, including DLJSC, CSI and
FUSI, acts as Underwriter of the Registrable Securities on substantially the
same basis as that of the indemnification of the Company provided in this
Section 8.
(c) Conduct of Indemnification Proceedings. If any action or
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proceeding (including any governmental investigation) shall be brought or
asserted against any Person entitled to indemnification under clauses (a) or (b)
above (an "Indemnified Party'') in respect of which indemnity may be sought from
any party who has agreed to provide such indemnification (an "Indemnifying
Party"), the Indemnified Party shall promptly notify the Indemnifying Party in
writing and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Party, and
shall assume the payment of all expenses. Such Indemnified Party shall have the
right to employ separate counsel in any such action and to
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participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (i) the Indemnifying
Party has agreed to pay such fees and expenses or (ii) the named parties to any
such action or proceeding (including any impleaded parties) include both such
Indemnified Party and the Indemnifying Party, and such Indemnified Party shall
have been advised by counsel that there is a conflict of interest on the part of
counsel employed by the Indemnifying Party to represent such Indemnified Party
(in which case, if such Indemnified Party notifies the Indemnifying Party in
writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume
the defense of such action or proceeding on behalf of such Indemnified Party; it
being understood, however, that the Indemnifying Party shall not, in connection
with any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (together with appropriate local
counsel) at any time for all such Indemnified Parties, which firm shall be
designated in writing by such Indemnified Parties) and that such fees and
expenses shall be reimbursed as they are incurred. The Indemnifying Party shall
not be liable for any settlement of any such action or proceeding effected
without its written consent, but if settled with its written consent, or if
there be a final judgment for the plaintiff in any such action or proceeding,
the Indemnifying Party shall indemnify and hold harmless such Indemnified
Parties from and against any loss or liability (to the extent stated above) by
reason of such settlement or judgment. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Party is or
could have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability on claims that are the subject matter
of such proceeding.
(d) Contribution. If the indemnification provided for in this Section
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8 is unavailable to the Indemnified Parties in respect of any losses, claims,
damages, liabilities or judgments referred to herein, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages, liabilities and judgments (i) as between the
Company and its respective Indemnified Parties and the Selling Holders and their
respective Indemnified Parties on the one hand and the Underwriters and their
respective Indemnified Parties on the other, in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Holders on the one hand and the Underwriters on the other from the
offering of the Registrable Securities, or if such allocation is not permitted
by applicable law, in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Selling
Holders on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable considerations
and (ii) as between the Company and its respective Indemnified Parties on the
one hand and each Selling Holder and their respective Indemnified Parties on the
other, in such proportion as is appropriate to reflect the relative fault of the
Company and of each Selling Holder in connection with such statements or
omissions, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Holders on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total proceeds from the offering (net of underwriting discounts and commissions
but before deducting expenses) received by the Company and the Selling Holders
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
prospectus. The relative fault of the Company and the Selling Holders on the one
hand and of the Underwriters on the other 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 Company and the Selling Holders or by the
Underwriters. The relative fault of the Company on the one hand and of each
Selling Holder on the other 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 such party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Selling Holders agree that it would not be just
and equitable if contribution pursuant to this Section 8(d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
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such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages, liabilities, or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Registrable Securities underwritten by it
and distributed to the public offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and no
Selling Holder shall be required to contribute any
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amount in excess of the amount by which the total price at which the Registrable
Securities of such Selling Holder were offered to the public exceeds the amount
of any damages which such Selling Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. 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.
9. Participation in Underwritten Registration
------------------------------------------
No Person may participate in any underwritten registration
hereunder unless such Person (a) agrees to sell such Person's securities on the
basis provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements and these Registration Rights.
10. Rule 144
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If the Company is subject to the requirements of Section 13, 14
or 15(d) of the Exchange Act, the Company covenants that it will file any
reports required to be filed by it under the Securities Act and the Exchange Act
so as to enable Holders to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by (a)
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or (b) any similar rule or regulation hereafter adopted by the Commission.
Upon the request of any Holder, the Company will deliver to such Holder a
written statement as to whether it has complied with such requirements.
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