Contract
This
STOCK ISSUANCE AND REGISTRATION RIGHTS AGREEMENT (this “Agreement”)
is
made as of August 28, 2006, by and among Iconix Brand Group, Inc., a Delaware
corporation (together with its successors and assigns, the “Company”),
and
DDJ Capital Management, LLC, a Delaware limited liability company, as Agent
(together with its successors and assigns, “DDJ”).
Capitalized terms used but not concurrently or previously defined herein are
defined in Section 8 hereof.
RECITALS:
WHEREAS,
the Company and London Fog Group, Inc., a Delaware corporation (“Seller”),
have
entered into an Asset Purchase Agreement, dated as of August 28, 2006 (the
“Purchase
Agreement”),
pursuant to which the Company will purchase (the “Asset
Purchase”)
on the
Closing Date certain assets of Seller’s Business in consideration for the
assumption by the Company of certain liabilities of the Business, a cash payment
to Seller of $30,500,000 and the issuance to Seller of that number of shares
of
common stock, par value $.001 per share, of the Company (the “Common
Stock”)
with
an aggregate Market Value of $7,000,000 as measured based on the Market Value
of
a share of Common Stock one (1) Business Day prior to the Closing Date (the
“Closing
Date Common Shares”);
WHEREAS,
pursuant to that certain “Order Approving (a) Sale of London Fog Assets Free and
Clear of All Liens, Claims, Interests and Other Encumbrances, and (b) Assumption
and Assignment of Certain Executory Contracts”, as entered by the United States
Bankruptcy Court for the District of Nevada, Reno Division, on August 24, 2006
in the case of Seller and certain of its affiliates under Chapter 11 of Title
11, United States Code, 11 U.S.C. Section 101 et seq. (the “Bankruptcy
Order”),
DDJ,
as Seller’s junior secured lender, subject to the terms contained in the
Purchase Agreement and in consideration for the consent of DDJ to the Asset
Purchase, will receive on the Closing Date certain proceeds of the Asset Sale
and the Closing Date Common Shares, registered in the name of DDJ on the books
and records of the Company, along with certain rights with respect thereto
as
set forth in the Purchase Agreement and this Agreement;
WHEREAS,
pursuant to the Purchase Agreement, the Company has acknowledged the assignment
of the Closing Date Common Shares from Seller to DDJ and has agreed to recognize
DDJ’s rights in such stock as set forth in this Agreement and the Purchase
Agreement
WHEREAS,
the number of Closing Date Common Shares is subject to adjustment as set forth
in the provisions of this Agreement; and
WHEREAS,
in order to induce DDJ to consent to the Asset Purchase and the other
transactions set forth in the Purchase Agreement, the Company has agreed to
grant the Purchasers certain registration and other rights as to the Common
Shares as set forth in this Agreement.
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NOW,
THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Acknowledgement
of Assignment; Issuance of Common Shares.
(a) The
Company hereby acknowledges and accepts the assignment from Seller to DDJ
pursuant to the Bankruptcy Order of all of Seller’s right, title and interest in
and to the Closing Date Common Shares as set forth in the Purchase Agreement.
(b) On
the
Closing Date, the Company shall deliver to DDJ and/or its Permitted Designee(s)
(as defined hereinafter) a stock certificate or certificates representing the
Closing Date Common Shares, registered in DDJ’s and/or its Permitted
Designee(s)’ name(s) or accompanied by duly executed stock assignments
provided,
that in
lieu of such stock certificate(s) the Company may deliver an irrevocable
direction letter from the Company to a transfer agent directing the issuance
of
such stock certificate(s) to DDJ and/or its Permitted Designee(s) and such
stock
certificate(s) shall be so delivered within one (1) Business Day following
the
Closing Date. The Closing Date Common Shares shall have an aggregate Market
Value of $7,000,000 as measured based on the Market Value of a share of Common
Stock one (1) Business Day prior to the Closing Date.
(c) If
as of
the Short-Form Effectiveness Date (as defined below), the Closing Date Common
Shares have an aggregate Market Value of less than $7,000,000, the Company
shall
issue within three (3) Business Days following the Short-Form Effectiveness
Date
to DDJ and/or its Permitted Designee(s) additional shares of Common Stock which
are included in the Short-Form Registration (the “Additional
Common Shares”
and,
together with the Closing Date Common Shares, the “Common
Shares”)
such
that the aggregate Market Value of Common Shares held by DDJ and/or its
Permitted Designee(s) as of such Short-Form Effectiveness Date would have
equaled $7,000,000; provided,
that
under no circumstances shall DDJ or any Permitted Designee be required at any
time to forfeit, cancel or otherwise give back to the Company any Closing Date
Common Shares, including, without limitation, if as of the Short-Form
Effectiveness Date, the aggregate Market Value of such Closing Date Common
Shares is equal to or more than $7,000,000; provided,
further,
that
under no circumstances shall DDJ or any Permitted Designee have the right to
receive any Additional Common Shares in the event DDJ chooses the option under
clause (x) of the first sentence of Section 3(b)(ii). If any Additional Common
Shares are issuable pursuant to this Section (c), such shares shall be issued
to
DDJ and each of its Permitted Designees based on its Holder Percentage
(hereinafter defined). The term “Holder
Percentage”
means
a
fraction, (x) the numerator of which is the number of Closing Date Common Shares
issued to DDJ, or a Permitted Designee, as the case may be, on the Closing
Date
and (y) the denominator of which is equal to all of the Closing Date Common
Shares issued to DDJ and its Permitted Designees on the Closing Date. The
Company shall deliver to DDJ and/or its Permitted Designee(s) a stock
certificate or certificates representing any Additional Common Shares issued
pursuant hereto, registered in DDJ’s and /or its Permitted Designee(s)’ name(s)
or accompanied by duly executed stock assignments.
2. Representations
and Warranties Concerning Common Shares.
Knowing
that DDJ relies thereon, the Company represents and warrants to DDJ that the
statements contained in this Section 2 are correct and complete as of the date
of this Agreement and will be correct and complete as of the Closing Date (as
though made then and as though the Closing Date were substituted for the date
of
this Agreement throughout this Section 2.
2
(a) Organization.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. The Company has full corporate power
and authority to enter into this Agreement, issue the Common Shares and to
consummate the transactions contemplated hereby upon the terms and conditions
herein provided.
(b) Authorization.
The
execution and delivery of this Agreement by the Company, the issuance of the
Common Shares and the consummation of the transactions contemplated hereby
have
been duly and validly authorized by all necessary corporate action on the part
of the Company, and this Agreement constitutes a valid and legally binding
agreement of the Company enforceable in accordance with its terms. Each
certificate, instrument and document contemplated by this Agreement, when
executed and delivered by the Company in accordance with the provisions hereof,
shall be valid and legally binding upon the Company in accordance with its
terms, subject only to applicable bankruptcy, reorganization, insolvency,
moratorium, and other rights affecting creditors’ rights generally from time to
time in effect and as to enforceability, general equitable
principles.
(c) No
Breach.
The
execution, delivery and performance of this Agreement by the Company, the
issuance of the Common Shares and the consummation by the Company of the
transactions herein contemplated, do not constitute a violation of or default
under (either immediately or upon notice, lapse of time or both) or result
in a
breach of (a) the Company’s certificate of incorporation, bylaws or other
organic governing documents, (b) the terms of any contract to which the Company
or any of its Subsidiaries or any of their respective assets are bound, (c)
any
judgment binding upon the Company or any of its Subsidiaries, (d) any permit
or
license of the Company or any of its Subsidiaries; or (e) any federal, state
municipal, foreign or other statute, law, ordinance, rule or regulation
applicable to the Company or any of its Subsidiaries or any of their respective
assets, except, in the cases of clause (b), (c), (d) or (e), any such violation,
default or breach that would not have a material adverse effect on the business
and financial condition of the Company.
(d) No
Broker.
No
broker, finder, agent or similar intermediary has acted for or on behalf of
the
Company in connection with this Agreement or the transactions contemplated
hereby, and no broker, finder, agent or similar intermediary is entitled to
any
broker’s fee, finder’s fee, or similar fee or commission in connection therewith
based on any agreement, arrangement or understanding with the Company or any
action taken by the Company.
(e) Issuance
of Company Shares.
The
Company Shares to be issued in connection with this Agreement are duly
authorized and, when issued in accordance herewith, will be duly and validly
issued, fully paid and nonassessable, free and clear of any mortgage, pledge,
lien, encumbrance, charge, or other security interest and shall not be subject
to preemptive or similar rights.
Except
as to the registration rights and other terms set forth herein, the terms of
the
Company Shares to be issued in connection with this Agreement shall be identical
to the Common Stock of the Company registered currently on the NASDAQ System.
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(f) Regulatory
Compliance.
(i) During
the twelve (12) month period immediately preceding the date hereof, the Company
has duly and timely filed all reports, schedules, forms, statements and other
documents (collectively, as supplemented and amended since the time of filing,
the “Company
SEC Reports”)
required to be filed by it with the SEC pursuant to the reporting requirements
of the Securities Exchange Act, including material filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act. At the time of their filing,
the
Company SEC Reports complied in all material respects with the requirements
of
the Securities Exchange Act and the rules and regulations of the SEC promulgated
thereunder and other federal, state and local laws, rules and regulations
applicable to such documents and did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(ii) The
audited consolidated financial statements and unaudited consolidated interim
financial statements of the Company and its consolidated Subsidiaries included
or incorporated by reference in the Buyer SEC Reports have been prepared in
accordance with GAAP consistently applied during the periods indicated (except
as may otherwise be indicated in the notes) and present fairly, in all material
respects, the financial position of the Company and its consolidated
Subsidiaries on a consolidated basis as at the respective dates and for the
respective periods indicated (except interim financial statements may not
contain all notes and are subject to year-end adjustments).
(g) All
certificates, instruments and documents delivered by or on behalf of the
Company in connection with this Agreement and the transactions contemplated
hereby are true and complete; all such certificates, instruments and documents
are authentic.
3. Registration
of Common Shares; Related Covenants.
(a) Registration.
Subject
to the terms and conditions of this Agreement, promptly following the Closing
Date, but in any event no later than twenty (20) days following the Closing
Date, the Company shall commence registration with the SEC under the Securities
Act of the Registrable Securities held by DDJ and/or its Permitted Designee(s)
on Form S-2 or S-3 or any similar short-form registration (a “Short-Form
Registration”)
pursuant to the procedures outline in Section 4 below. Such Short-Registration
shall include the registration of all Registrable Securities that are Closing
Date Common Shares and shall include a sufficient number of additional
Registrable Securities such that any Additional Common Shares to be issued
to
DDJ and/or its Permitted Designee(s) pursuant to Section 1(c) above, shall be
covered by the effectiveness of such Short-Form Registration. The Company shall
pay all Registration Expenses of such Short-Form Registration. If the Short-Form
Registration is an underwritten offering, the selection of investment banker(s)
and manager(s) for the offering, which investment banker(s) and manager(s)
shall
be nationally recognized, shall be made by the Company. The term “Short-Form
Effectiveness Date”
means
the date on which the Short-Form Registration covering all of the Registrable
Securities is declared effective by the SEC. Anything contained herein to the
contrary notwithstanding, in no event shall the Short-Form Registration be
an
underwritten offering unless agreed to be the Company in its sole and absolute
discretion.
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(b) Consequences
of Failure to Register.
(i) If
as of
the date that is sixty (60) days after the Closing Date (which date shall be
extended for each day, if any, that the effectiveness of a Short-Form
Registration statement is delayed solely as a result of the failure of DDJ
or
any of its Permitted Designee(s) to deliver the information required by Section
6(b) hereof after written notice by the Company to DDJ or such Permitted
Designee of such failure), a Short-Form Registration covering all of the
Registrable Securities has not been declared or does not then remain effective
with the SEC, the Company shall pay to each of DDJ and its Permitted Designee(s)
liquidated damages (“Liquidated
Damages”)
in an
amount equal to (x) $11,000 per day multiplied by (y) the Holder Percentage
for
each day thereafter until the Short-Form Effectiveness Date; provided,
that in
no event shall the aggregate amount of Liquidated Damages payable hereunder
exceed $660,000. Such Liquidated Damages shall be payable by the Company to
DDJ
and/or its Permitted Designee(s) on every thirty (30) days, beginning on the
date that is ninety (90) days after the Closing Date, and on the Short-Form
Effectiveness Date should such date occur prior to the end of any such thirty
(30)-day period, in cash or other immediately available funds to the location(s)
and to the attention of or to the account(s) specified by DDJ in writing for
itself and its Permitted Designees. Upon the subsequent occurrence of the
Short-Form Effectiveness Date, DDJ and/or its Permitted Designee(s) shall be
entitled to the Additional Common Shares, if any, to be issued to DDJ and/or
its
Permitted Designee(s) pursuant to and in accordance with Section 1(c)
above.
(ii) If
as of
the date that is one hundred twenty (120) days after the Closing Date (which
date shall be extended for each day, if any, that the effectiveness of a
Short-Form Registration statement is delayed solely as a result of the failure
of DDJ or any of its Permitted Designee(s) to deliver the information required
by Section 6(b) hereof after written notice by the Company to DDJ or such
Permitted Designee of such failure) (the “Trigger
Date”),
a
Short-Form Registration covering all of the Registrable Securities has not
been
declared or does not then remain effective with the SEC, DDJ may, at its sole
option expressed in writing to the Company no later than twenty (20) days after
the Trigger Date, either (x) sell all of the Closing Date Common Shares to
the
Company for a purchase price equal to $7,000,000, payable, together with any
accrued and unpaid Liquidated Damages, within two (2) Business Days after
receipt of such notice from DDJ on its own behalf and on behalf of its Permitted
Designees in cash or other immediately available funds to the location(s) and
to
the attention of or to the account(s) specified by DDJ in writing for itself
and
its Permitted Designees or (y) retain the Closing Date Common Shares and obtain
from the Company upon the occurrence of the Short-Form Effectiveness Date
following the Trigger Date any Additional Common Shares it is entitled to
pursuant to and in accordance with Section 1(c) above and receive payment of
any
accrued and unpaid Liquidated Damages within two (2) Business Days after receipt
of such notice from DDJ on its own behalf and on behalf of its Permitted
Designees in cash or other immediately available funds to the location(s) and
to
the attention of or to the account(s) specified by DDJ in writing for itself
and
its Permitted Designees; provided,
that
upon a failure of DDJ to provide notice of its choice prior to the earlier
of
the Short-Form Effectiveness Date and the twentieth (20th)
day
after the Trigger Date, DDJ shall be deemed to have chosen option (y) above.
In
addition, if as of the Trigger Date, a Short-Form Registration covering all
of
the Registrable Securities has not been declared and does not then remain
effective with the SEC and DDJ has chosen to retain its and its Permitted
Designees Closing Date Common Shares pursuant to option (y) above, (A) the
Company shall have a continuing obligation to register all Registrable
Securities held by DDJ and/or its Permitted Designee(s) and shall continue
to be
bound by the terms of this Agreement and the Company shall complete the
registration of such Registrable Securities pursuant to a Short-Form
Registration or otherwise as promptly as practicable following such date and
(B)
the Company shall pay to each of DDJ and its Permitted Designee(s) additional
Liquidated Damages in an amount equal to (A) $5,500 per day multiplied by (B)
the Holder Percentage for each day after the Trigger Date until the earlier
to
occur of (1) sixty (60) days after the Trigger Date and (2) a Short-Form
Effectiveness Date during such period. Such Liquidated Damages shall be payable
by the Company to DDJ and/or its Permitted Designee(s) every thirty (30) days,
beginning on the date that is thirty (30) days after the Trigger Date, and
on
the Short-Form Effectiveness Date should such date occur prior to the end of
any
such thirty (30)-day period, in cash or other immediately available funds to
the
location(s) and to the attention of or to the account(s) specified by DDJ in
writing for itself and its Permitted Designees. Upon the subsequent occurrence
of the Short-Form Effectiveness Date, DDJ and/or its Permitted Designee(s)
shall
be entitled to the Additional Common Shares, if any, to be issued to DDJ and/or
its Permitted Designee(s) pursuant to and in accordance with Section 1(c)
above.
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(iii) If
as of
the date that is sixty (60) days after the Trigger Date (which date shall be
extended for each day, if any, that the effectiveness of a Short-Form
Registration statement is delayed solely as a result of the failure of DDJ
or
any of its Permitted Designee(s) to deliver the information required by Section
6(b) hereof after written notice by the Company to DDJ or such Permitted
Designee of such failure) (the “Additional
Trigger Date”),
a
Short-Form Registration covering all of the Registrable Securities has not
been
declared or does not then remain effective with the SEC, and DDJ has chosen
to
retain its Closing Date Common Shares, (A) the Company shall have a continuing
obligation to register all Registrable Securities held by DDJ and/or its
Permitted Designee(s) and shall continue to be bound by the terms of this
Agreement and the Company shall complete the registration of such Registrable
Securities pursuant to a Short-Form Registration or otherwise as promptly as
practicable following such date and (B) the Company shall pay to each of DDJ
and
its Permitted Designee(s) additional Liquidated Damages in an amount equal
to
(x) $50,000 per month multiplied by (y) the Holder Percentage for each full
month after the Additional Trigger Date until the occurrence of the Short-Form
Effectiveness Date. Such Liquidated Damages shall be payable by the Company
to
DDJ and/or its Permitted Designee(s) on a monthly basis, beginning on the first
monthly anniversary of the Additional Trigger Date, and on the Short-Form
Effectiveness Date should such date occur prior to the end of any such monthly
period, in cash or other immediately available funds to the location(s) and
to
the attention of or to the account(s) specified by DDJ in writing for itself
and
its Permitted Designees. Upon the subsequent occurrence of the Short-Form
Effectiveness Date, DDJ and/or its Permitted Designee(s) shall be entitled
to
the Additional Common Shares, if any, to be issued to DDJ and/or its Permitted
Designee(s) pursuant to and in accordance with Section 1(c) above.
(iv) The
parties hereto expressly acknowledge and agree that, in light of the difficulty
of accurately determining actual damages hereunder, the right to payment of
Liquidated Damages hereunder constitutes a reasonable estimate of all damages
that will be suffered by DDJ and/or its Permitted Designee(s) and that under
no
circumstances shall DDJ or any Permitted Designee be required to give back
or
otherwise surrender any Liquidated Damages paid or payable to DDJ or any
designee pursuant hereto.
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4. Registration
Procedures.
In
fulfilling its registration obligations hereunder, the Company shall use its
commercially reasonable best efforts to effect the registration, and pursuant
thereto the Company shall as expeditiously as possible:
(a) prepare
and file with the SEC a registration statement with respect to such Registrable
Securities and use commercially reasonable efforts to cause such registration
statement to become effective (provided,
that as
soon as practicable and before filing a registration statement or prospectus
or
any amendments or supplements thereto, the Company will furnish to the counsel
selected by DDJ copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel and if DDJ shall notify
the Company in writing that, in the judgment of DDJ and its counsel, the
inclusion of additional information regarding any holder, any holder’s ownership
of securities and any holder’s intended plan of distribution (provided such plan
is reasonably acceptable in all material respects to the Company)) is required,
such information shall be so included;
(b) notify
DDJ and/or its Permitted Designee(s) of the effectiveness with the SEC of the
Short-Form Registration covering all of the Registrable Securities (such
effectiveness date, the “Short-Form
Effectiveness Date”)
and
use commercially reasonable efforts to prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for a period of not less than one hundred eighty (180)
days
(excluding any period when effectiveness lapses) and comply with the provisions
of the Securities Act with respect to the disposition of all securities covered
by such registration statement during such period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
registration statement;
(c) furnish
to DDJ and/or its Permitted Designee(s) such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus)
and such other documents as such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by DDJ and/or
its
Permitted Designee(s);
(d) use
commercially reasonable efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions
as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate
the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided,
that
the Company shall not be required to (i) qualify generally to do business
in any jurisdiction where it would not otherwise be required to qualify but
for
this subparagraph, (ii) subject itself to taxation in any such jurisdiction
or (iii) consent to general service of process in any such
jurisdiction);
(e) notify
DDJ and/or its Permitted Designee(s), at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event as a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and, at the request
of
any such seller, the Company shall promptly prepare a supplement or amendment
to
such prospectus and/or registration statement so that, as thereafter delivered
to the purchasers of such Registrable Securities, such prospectus shall not
contain an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading;
7
(f) use
commercially reasonable efforts to cause all such Registrable Securities to
be
listed on each securities exchange on which similar securities issued by the
Company are then listed and, if not so listed, to be listed on the NASD
automated quotation system and, if listed on the NASD automated quotation
system, use commercially reasonable efforts to secure designation of all such
Registrable Securities covered by such registration statement as a NASDAQ
“national market system security” within the meaning of Rule 11Aa2-1 of the
Securities and Exchange Commission or, failing that, to secure NASDAQ
authorization for such Registrable Securities and, without limiting the
generality of the foregoing, to arrange for at least two market makers to
register as such with respect to such Registrable Securities with the
NASD;
(g) provide
a
transfer agent and registrar for all such Registrable Securities not later
than
the effective date of the first registration statement relating to Registrable
Securities or securities of any class of the Company and co-operate to make
certificates promptly available;
(h) enter
into such customary agreements (including underwriting agreements in customary
form) and take all such other actions as DDJ and/or its Permitted Designee(s)
or
the underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities (including, without limitation,
effecting a stock split or a combination of shares);
(i) subject
to the execution of a non-disclosure agreement in form reasonably acceptable
in
all material respects to the Company, make available for inspection by DDJ
and/or its Permitted Designee(s), any underwriter participating in any
disposition pursuant to such registration statement and any attorney, accountant
or other agent retained by any such seller or underwriter, all financial and
other records, pertinent corporate documents and properties of the Company,
and
cause the Company’s officers, directors, employees and independent accountants
to supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration
statement;
(j) otherwise
use commercially reasonable efforts to comply with all applicable rules and
regulations of the SEC, and make available to its security holders, as soon
as
reasonably practicable, an earnings statement covering the period of at least
twelve months beginning with the first day of the Company’s first full calendar
quarter after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder;
(k) in
the
event of the issuance of any stop order suspending the effectiveness of a
registration statement, or of any order suspending or preventing the use of
any
related prospectus or suspending the qualification of any shares of Common
Stock
included in such registration statement for sale in any jurisdiction, during
the
one hundred eighty (180)-day period commencing on the Short-Form Effectiveness
Date, the Company shall notify the holders of Registrable Securities thereof
and
use its best efforts promptly to obtain the withdrawal of such order; and
8
(l) in
connection with an underwritten public offering, (i) subject to the execution
of
a non-disclosure agreement in form reasonably acceptable in all material
respects to the Company, cooperate with DDJ and/or its Permitted Designee(s),
and with the underwriters participating in the offering and their counsel in
any
due diligence investigation reasonably requested by the selling holders or
the
underwriters in connection therewith and (ii) participate fully, and use its
best efforts to cause its management to participate fully, in efforts to sell
the Registrable Securities under the offering (including, without limitation,
participating in “roadshow” meetings with prospective investors) that would be
customary for underwritten primary offerings of a comparable amount of equity
securities by the Company; and
5. Registration
Expenses.
All
Registration Expenses shall be borne by the Company, and the Company shall
pay
its internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of any annual audit or quarterly review, the expense of any liability
insurance and the expenses and fees for listing the securities to be registered
on each securities exchange on which similar securities issued by the Company
are then listed or on the NASD automated quotation system. The Company shall
not
be required to pay an underwriting discount with respect to any shares being
sold by any party other than the Company in connection with an underwritten
public offering of any of the Company’s securities pursuant to this Agreement.
6. Indemnification.
(a) The
Company agrees to indemnify, to the extent permitted by law, each holder of
Registrable Securities, such holder’s officers and directors, and each Person
who controls such holder (within the meaning of the Securities Act) against
all
losses, claims, damages, liabilities and expenses (“Losses”)
caused
by or arising out of any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus
or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as (i) such untrue or alleged
untrue statements or omissions or alleged omissions are based upon information
regarding such holder furnished in writing to the Company by such holder
expressly for use therein, or to the extent that such information relates to
such holder or such holder’s proposed method of distribution of Registrable
Securities, provided that, in each case, such information was reviewed and
confirmed in advance by such holder and its counsel or (ii) the failure of
such
holder to satisfy the prospectus delivery requirement or the use by such holder
of an outdated or defective prospectus after the Company has notified such
holder in writing that the prospectus is outdated or defective and prior to the
receipt by such holder of such notice.
(b) In
connection with any registration statement in which a holder of Registrable
Securities is participating, each such holder shall as promptly as practicable
(and in no event later than three (3) Business Days after receipt of written
notice by the Company of such requirement) furnish to the Company in writing
such information and affidavits as the Company reasonably requests for use
in
connection with any such registration statement or prospectus. Each holder
of
Registrable Securities shall indemnify, to the extent permitted by law, the
Company, its directors and officers and each Person who controls the Company
(within the meaning of the Securities Act) against any Losses, to the extent
that (i) such untrue or alleged untrue statements or omissions or alleged
omissions are based solely upon information regarding such holder furnished
in
writing to the Company by such holder expressly for use therein, or to the
extent that such information relates to the undersigned or the undersigned’s
proposed method of distribution of Registrable Securities, provided that, in
each case, such information was reviewed and confirmed in advance by such holder
and/or (ii) the failure of such holder to satisfy the prospectus delivery
requirement or, the use by such holder of an outdated or defective prospectus
after the Company has notified such holder in writing that the prospectus is
outdated or defective and prior to the receipt by such holder of such notice;
provided,
that
the obligation to indemnify shall be individual, not joint and several, for
each
holder and shall be limited to the net amount of proceeds received by such
holder from the sale of Registrable Securities pursuant to such registration
statement.
9
(c) The
indemnification provided for under this Agreement shall remain in full force
and
effect regardless of any investigation made by or on behalf of the indemnified
party or any officer, director or controlling Person of such indemnified party
and shall survive the transfer of securities.
(d) Promptly
after receipt by an indemnified party of notice of the commencement of any
action or proceeding involving a claim referred to in the preceding paragraph
(a) or (b) of this Section 6, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party pursuant to such
paragraphs, give written notice to the latter of the commencement of such
action, provided,
that
the failure of any indemnified party to give notice as provided herein shall
not
relieve the indemnifying party of its obligations under the preceding paragraphs
of this Section 6, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, the indemnifying party shall be entitled to
participate in and, unless, in the reasonable judgment of any indemnified party
a conflict of interest between such indemnified and indemnifying parties may
exist with respect to such claim, to assume the defense thereof, jointly with
any other indemnifying party similarly notified to the extent that it may wish,
with counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by
the
latter in connection with the defense thereof other than reasonable costs of
investigation; provided,
that
the indemnified party may participate in such defense at the indemnified party’s
expense; provided
further,
that
the indemnified party or indemnified parties shall have the right to employ
one
counsel to represent it or them if, in the reasonable judgment of the
indemnified party or indemnified parties, it is advisable for it or them to
be
represented by separate counsel by reason of having legal defenses which are
different from or in addition to those available to the indemnifying party.
If
the indemnifying party is not entitled to, or elects not to, assume the defense
of a claim, it shall not be obligated to pay the fees and expenses of more
than
one counsel for the indemnified parties with respect to such claim, unless
in
the reasonable judgment of any indemnified party a conflict of interest may
exist between such indemnified party and any other indemnified parties with
respect to such claim, in which event the indemnifying party shall be obligated
to pay the fees and expenses of such additional counsel for the indemnified
parties or counsels. No indemnifying party shall consent to entry of any
judgment or enter into any settlement without the consent of the indemnified
party (i) which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of an
unconditional release from all liability in respect to such claim or litigation
and (ii) which includes a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party. No
indemnifying party shall be subject to any liability for any settlement made
without its consent, which consent shall not be unreasonably
withheld.
10
(e) If
the
indemnity and reimbursement obligation provided for in any paragraph of this
Section 6 is unavailable or insufficient to hold harmless an indemnified party
in respect of any Losses (or actions or proceedings in respect thereof) referred
to therein, then the indemnifying party shall contribute to the amount paid
or
payable by the indemnified party as a result of such Losses (or actions or
proceedings in respect thereof) in such proportion as is appropriate to reflect
the relative fault of the indemnifying party on the one hand and the indemnified
party on the other hand in connection with statements or omissions which
resulted in such Losses, as well as any other relevant equitable considerations.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or the indemnified party and the parties’
relative intent, knowledge, access to information and opportunity to correct
or
prevent such untrue statement or omission. The parties hereto agree that it
would not be just and equitable if contributions pursuant to this paragraph
were
to be determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in
the
first sentence of this paragraph. The amount paid by an indemnified party as
a
result of the Losses referred to in the first sentence of this paragraph shall
be deemed to include any legal and other expenses reasonably incurred by such
indemnified party in connection with investigation or defending any Loss which
is the subject of this paragraph. No indemnified party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from the indemnifying party if the
indemnifying party was not guilty of such fraudulent
misrepresentation.
(f) Indemnification
similar to that specified in the preceding paragraphs of this Section 6 (with
appropriate modifications) shall be given by the Company and each seller of
Registrable Securities with respect to any required registration or other
qualification of securities under any federal or state law or regulation of
any
governmental authority other than the Securities Act. The provisions of this
Section 6 shall be in addition to any other rights to indemnification or
contribution which an indemnified party may have pursuant to law, equity,
contract or otherwise.
(g) 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 Losses are incurred.
11
7. Participation
in Underwritten Registrations.
No
Person
may participate in any registration hereunder which is underwritten unless
such
Person (a) agrees to sell such Person’s securities on the basis provided in
any underwriting arrangements reasonably approved by the Person or Persons
entitled hereunder to approve such arrangements (which will include the making
of representations and warranties and the granting of indemnification rights
customary for a selling stockholder in the circumstances of such Person), and
(b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents that are standard
and
customary for similarly situated Persons and are reasonably required under
the
terms of such underwriting arrangements; provided,
that no
holder of Purchaser Registrable Securities included in any underwritten
registration shall be required to make any representations or warranties to
the
Company or the underwriters other than representations and warranties regarding
such holder, such holder’s Purchaser Registrable Securities and such holder’s
intended method of distribution or to undertake any indemnification obligations
to the Company or the underwriters with respect thereto, except as otherwise
provided in Section 6 hereof.
8. Definitions.
“Business”
has
the
meaning ascribed to such term in the Purchase Agreement.
“Business
Day”
means
any day except Saturday, Sunday and any day which shall be a legal holiday
or
other day on which securities exchanges are closed in New York, New
York.
“Closing
Date”
has
the
meaning ascribed to such term in the Purchase Agreement.
“Market
Value”
of
any
Common Share as of any Business Day for which Market Value is being determined
means the closing prices of such security’s sales on all securities exchanges on
which such security may at the time be listed, or, if there has been no sales
on
any such exchange on any day, the average of the highest bid and lowest asked
prices on all such exchanges at the end of such day, or, if on any day such
security is not so listed, the average of the representative bid and asked
prices quoted in the NASDAQ System as of 4:00 P.M., New York time, or, if on
any
day such security is not quoted in the NASDAQ System, the average of the highest
bid and lowest asked prices on such day in the domestic over-the-counter market
as reported by the National Quotation Bureau, Incorporated, or any similar
successor organization. If at any time such security is not listed on any
securities exchange or quoted in the NASDAQ System or the over-the-counter
market, the “Market Value” shall be the fair value thereof determined jointly by
the Company and DDJ. If such parties are unable to reach agreement within a
reasonable period of time, such fair value shall be determined by an independent
appraiser experienced in valuing securities jointly selected by the Company
and
DDJ. The determination of such appraiser shall be final and binding upon the
parties, and the Company shall pay the fees and expenses of such
appraiser.
“Person”
means
an individual, a partnership, a joint venture, a corporation, a trust, a limited
liability company, an unincorporated organization or a government or any
department or agency thereof.
12
“Registrable
Securities”
means,
irrespective of which Person actually holds such securities, (i) the Common
Shares and (ii) any Common Stock issued or issuable with respect to the
securities referred to in clause (i) above by way of a distribution, stock
dividend, stock split, conversion or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Registrable Securities, such securities will cease to be Registrable
Securities when such securities (i) have been distributed to the public pursuant
to an offering registered under the Securities Act or sold to the public through
a broker, dealer or market maker in compliance with Rule 144 (or any similar
rule then in force) under the Securities Act or (ii) are eligible for resale
under Rule 144 (or any such rule then in force) without limitation as to volume.
For purposes of this Agreement, a Person will be deemed to be a holder of
Registrable Securities, and the Registrable Securities shall be deemed to be
in
existence, whenever such Person has the right to acquire directly or indirectly
such Registrable Securities (upon conversion, or exercise in connection with
a
transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected, and such Person shall be entitled to exercise the
rights of a holder of Registrable Securities hereunder.
“Registration
Expenses”
means,
all expenses incidental to the Company’s performance of or compliance with this
Agreement, including without limitation all registration and filing fees, fees
and expenses of compliance with securities or blue sky laws, stock exchange
listing fees, printing expenses, messenger and delivery expenses, fees and
disbursements of custodians, and fees and disbursements of counsel for the
Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by the Company;
but excluding underwriting discounts and commissions and fees of any counsel,
accountants and other Persons retained by DDJ and/or its Permitted
Designee(s).
“SEC”
means
the Securities and Exchange Commission.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Securities
Exchange Act”
means
the Securities Exchange Act of 1934, as amended.
“Subsidiary”
means,
with respect to any Person: (a) any corporation a majority of the total
voting power of shares of stock of which is entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or
trustees thereof is at the time owned or controlled, directly or indirectly,
by
that Person or one or more of the other Subsidiaries of that Person or a
combination thereof; or (b) any partnership, limited liability company,
association or other business entity a majority of the partnership or other
similar ownership interest of which is at the time owned or controlled, directly
or indirectly, by that Person or one or more Subsidiaries of that Person or
a
combination thereof. For purposes of this definition, a Person is deemed to
have
a majority ownership interest in a partnership, limited liability company,
association or other business entity if such Person is allocated a majority
of
the gains or losses of such partnership, limited liability company, association
or other business entity or is or controls the managing director, managing
member or general partner of such partnership, limited liability company,
association or other business entity.
13
9. Miscellaneous.
(a) No
Inconsistent Agreements.
The
Company has not entered and shall not hereafter enter into any agreement with
respect to its securities which is inconsistent with or violates the rights
granted to the holders of Registrable Securities in this Agreement.
(b) Adjustments
Affecting Registrable Securities.
The
Company shall not take any action, or permit any change to occur, with respect
to its securities which would adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would adversely affect the
marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
(c) Remedies.
Any
Person having rights under any provision of this Agreement shall be entitled
to
enforce such rights specifically to recover damages caused by reason of any
breach of any provision of this Agreement and to exercise all other rights
granted by law. Remedies available specifically hereunder are cumulative with
each other and with all other remedies available at law and not specifically
precluded hereby. The parties hereto agree and acknowledge that money damages
may not be an adequate remedy for any breach of the provisions of this Agreement
and that, in addition to any other rights and remedies existing in its favor,
any party may in its sole discretion apply to any court of law or equity of
competent jurisdiction (without posting any bond or other security) for specific
performance and for other injunctive relief in order to enforce or prevent
violation of the provisions of this Agreement.
(d) Amendments
and Waivers.
Except
as otherwise provided herein, the provisions of this Agreement may be amended
or
waived only upon the prior written consent of the Company and DDJ. The failure
of any party to enforce any of the provisions of this Agreement shall in no
way
be construed as a waiver of such provisions and shall not affect the right
of
such party thereafter to enforce each and every provision of this Agreement
in
accordance with its terms.
(e) Successors
and Assigns.
All
covenants and agreements in this Agreement by or on behalf of any of the parties
hereto shall bind and inure to the benefit of the respective successors and
assigns of the parties hereto whether so expressed or not. In addition, whether
or not any express assignment has been made, the provisions of this Agreement
which are for the benefit of purchasers or holders of Registrable Securities
are
also for the benefit of, and enforceable by, any designee of DDJ set forth
on
Schedule
A
hereto;
provided
that any
such designee executes a joinder to this Agreement substantially in the form
of
Exhibit
A
hereto
(each such designee, a “Permitted
Designee”).
(f) Severability.
Whenever possible, each provision of this Agreement shall be interpreted in
such
manner as to be effective and valid under applicable law and in a manner
consistent with each other so as to carry out the purposes and intent of the
parties hereto, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only
to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
14
(g) Counterparts.
This
Agreement may be executed simultaneously in two or more counterparts, any one
of
which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same
Agreement.
(h) Descriptive
Headings.
The
descriptive headings of this Agreement are inserted for convenience only and
do
not constitute a part of this Agreement.
(i) Notices.
All
notices, requests, consents and other communications provided for herein shall
be in writing and shall be (i) delivered in person, (ii) transmitted
by telecopy, (iii) sent by first-class, registered or certified mail,
postage prepaid, or (iv) sent by reputable overnight courier service, fees
prepaid, to the recipient at the address or telecopy number set forth below,
or
such other address or telecopy number as may hereafter be designated in writing
by such recipient. Notices shall be deemed given upon personal delivery, seven
(7) days following deposit in the mail as set forth above, upon acknowledgment
by the receiving telecopier or one (1) day following deposit with an overnight
courier service.
If
to
the Company:
0000
Xxxxxxxx - 0xx
Xxxxx
Xxx
Xxxx,
XX 00000
Telecopy: (000)
000-0000
Attention:
Mr.
Xxxx
Xxxx
with
a
copy to (which shall not constitute notice to the Company):
Blank
Rome LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Telecopy: (000)
000-0000
Attention: Xxxxxx
X.
Xxxxxxx, Esq.
If
to
DDJ:
DDJ
Capital Management, LLC
000
Xxxxxx Xxxxxx
Xxxxxxxx
0, Xxxxx 000
Xxxxxxx,
XX 00000
Telecopy: (000)
000-0000
Attention: Xxxx
Xxxxxxx
15
with
a
copy to (which shall not constitute notice to DDJ):
Xxxxxxx
Procter LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telecopy: (000)
000-0000
Attention: Xxxxx
X.
Brilliant, Esq.
or
such
other address or to the attention of such other Person as the recipient party
shall have specified by prior written notice to the Company.
(j) GOVERNING
LAW, JURY TRIAL AND JURISDICTION.
THE CORPORATE LAW OF THE STATE OF DELAWARE SHALL GOVERN ALL ISSUES CONCERNING
THE RELATIVE RIGHTS OF THE COMPANY AND ITS STOCKHOLDERS. ALL PROVISIONS OF
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS
OF LAWS OR CHOICE OF LAW OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION
WHICH WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY JURISDICTION OTHER
THAN
THE STATE OF NEW YORK.
(k) No
Strict Construction.
The
parties hereto have participated jointly in the negotiation and drafting of
this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties
hereto, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions
of
this Agreement.
(l) Transfer.
Prior
to transferring any Registrable Securities (other than a transfer pursuant
to
which such Registrable Securities cease to be Registrable Securities) to any
Person, the Person transferring such Registrable Securities will cause the
prospective transferee to execute and deliver to the Company (for itself and
as
the agent of the other members), a joinder to this Agreement substantially
in
the form of Exhibit A
hereto
pursuant to which the prospective transferee agrees to be bound by this
Agreement to the same extent as the Person transferring such Registrable
Securities with respect to the Registrable Securities so transferred.
Notwithstanding anything herein to the contrary, the Company shall not be
obligated to file an amendment or post effective amendment to the Short-Form
Registration or a prospectus supplement to the prospectus included in the
Short-Form Registration as a result of any transfer or assignment of
Registration Securities by DDJ, unless such transfer or assignment was to a
Permitted Designee and the Company was notified in writing of such transfer
or
assignment prior to the date the Short-Form Registration was filed with the
SEC.
(m) Entire
Agreement.
Except
as otherwise expressly set forth herein, this Agreement, the Purchase Agreement
and the other agreements referred to herein and therein embodies the complete
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersedes and preempts any prior understandings, agreements
or representations by or among the parties, written or oral, which may have
related to the subject matter hereof in any way.
16
(n) Covenants
Relating to Rule 144.
If at
any time the Company is required to file reports in compliance with either
Section 13 or Section 15(d) of the Securities Exchange Act, as amended, the
Company will file reports in compliance with the Securities Exchange Act, will
comply with all rules and regulations of the SEC applicable in connection with
the use of Rule 144 under the Securities Act and take such other actions and
furnish such holder with such other information as such holder may request
in
order to avail itself of such rule or any other rule or regulation of the SEC
allowing such holder to sell any Registrable Securities without registration,
and will, at its expense, forthwith upon the reasonable request of any holder
of
Registrable Securities, deliver to such holder a certificate, signed by the
Company’s principal financial officer, stating (i) the Company’s name,
address and telephone number (including area code), (ii) the Company’s
Internal Revenue Service identification number, (iii) the Company’s
Commission file number, (iv) the number of shares of each class of capital
stock outstanding as shown by the most recent report or statement published
by
the Company, and (v) whether the Company has filed the reports required to
be filed under the Securities Exchange Act for a period of at least ninety
(90)
days prior to the date of such certificate and in addition has filed the most
recent annual report required to be filed thereunder. If at any time the Company
is not required to file reports in compliance with either Section 13 or Section
15(d) of the Securities Exchange Act, the Company at its expense will, forthwith
upon the reasonable written request of the holder of any Registrable Securities,
make available adequate current public information with respect to the Company
within the meaning of paragraph (c)(2) of Rule 144 under the Securities
Act.
(o) Waiver
of Jury Trial.
The
parties to this Agreement each hereby waives, to the fullest extent permitted
by
law, any right to trial by jury of any claim, demand, action, or cause of action
(i) arising under this Agreement or (ii) in any way connected with or related
or
incidental to the dealings of the parties hereto in respect of this Agreement
or
any of the transactions related hereto, in each case whether now existing or
hereafter arising, and whether in contract, tort, equity, or otherwise. The
parties to this Agreement each hereby agrees and consents that any such claim,
demand, action, or cause of action shall be decided by court trial without
a
jury and that the parties to this Agreement may file an original counterpart
of
a copy of this Agreement with any court as written evidence of the consent
of
the parties hereto to the waiver of their right to trial by jury.
*
* * * *
[SIGNATURE
PAGES FOLLOW]
17
IN
WITNESS WHEREOF, the parties have executed this Stock Issuance and Registration
Rights Agreement as of the date first written above.
| ICONIX BRAND GROUP, INC. | ||
| |
|
|
| By: | /s/ Xxxxx Xxxx | |
|
Name: Xxxxx Xxxx |
||
| Its: Executive Vice President | ||
| DDJ CAPITAL MANAGEMENT, LLC | ||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxxxxx | |
|
Name: Xxxxx X. Xxxxxxxxx |
||
| Its: Member | ||
SCHEDULE
A
PERMITTED
DESIGNEES
Southlake
& Co.
(note: this is the nominee name for
GMAM Investment Funds Trust II,
one of
the DDJ lenders. The custodian requests that all physical stock
certificates be issued in nominee name, rather than the name of the lender,
for
administrative, custodial reasons).
Physical
delivery instructions:
DTC/New
York Window
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Phone:
(000) 000-0000
Fax:
(000) 000-0000
Attn:
Xxxxxx Xxxxxx for the account of State Street
Account
Name: GMAM Investment Funds Trust II
Account Number: 7M2E
Account Number: 7M2E
Wire
instructions:
Xxxxx
Xxxxxx Xxxx & Xxxxx Xx., Xxxxxx
XXX
#000
000 028
Ref:
GMAM
Investment Funds Trust II
Account Number:
DDA#
Account Number:
DDA#
The
October Fund, Limited Partnership
Physical
delivery instructions:
Xxxxxxx
Sachs & Co.
Attention:
Xxxxxxx Xxxxxx
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx
Xxxx,
XX 00000
A/C
#
Account
Name: The October Fund, Limited Partnership
Wire
instructions:
JPMorgan
Chase Bank, N.Y.
ABA # 000000000
F/A/O Goldman Xxxxx & Co., N.Y.
A/C #
ABA # 000000000
F/A/O Goldman Xxxxx & Co., N.Y.
A/C #
F/F/C
The
October Fund, LP
A/C #
A/C #
DDJ
October Fund Onshore Feeder, Limited Partnership
Physical
delivery instructions:
Xxxxxx
Xxxxxxx & Co.
0000
Xxxxxxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Account
Name: DDJ October Fund Onshore Feeder, Limited Partnership
A/C:
Attn:
Xxxxx Xxxx, Prime Brokerage
DTC Participant #: 050
DTC Participant #: 050
Wire
instructions:
Citibank,
N.A. New York
ABA # 000000000
Account - Xxxxxx Xxxxxxx & Co., NY
Account Number
Account Name: DDJ October Fund Onshore Feeder, Limited Partnership
Account Number
ABA # 000000000
Account - Xxxxxx Xxxxxxx & Co., NY
Account Number
Account Name: DDJ October Fund Onshore Feeder, Limited Partnership
Account Number
October
OS Investment Sub 2005, Ltd.
Physical
delivery instructions:
Xxxxxx
Xxxxxxx & Co.
0000
Xxxxxxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Account
Name: DDJ October Fund Offshore Feeder, L.P.
A/C:
Attn:
Xxxxx Xxxx, Prime Brokerage
Wire
instructions:
Citibank,
N.A. New York
ABA# 00-000-000
F/A/O Morgan Xxxxxxx & Co., NY
A/C#
F/F/C: October OS Invest Sub 2005 Ltd.
A/C#:
ABA# 00-000-000
F/A/O Morgan Xxxxxxx & Co., NY
A/C#
F/F/C: October OS Invest Sub 2005 Ltd.
A/C#:
Contrarian
Funds, LLC
Physical
delivery instructions:
Xxxxxxxx
Xxxxx
Contrarian
Capital Management
000
Xxxx
Xxxxxx Xxxxxx - Xxxxx 000
Xxxxxxxxx,
XX 00000
Wire
instructions:
Citibank
ABA# 000-000-000
A/C Bear Xxxxxxx Securities Corp.
ABA# 000-000-000
A/C Bear Xxxxxxx Securities Corp.
A/C#
F/C
to
Contrarian Funds, LLC
A/C#
The
Foothill Group, Inc.
Physical
delivery instructions:
Xxxxx
Xxxxxx
00000
Xxxxxxx Xxxx, #0000
Xxxxxxx
Xxxx, XX 00000
DTC
#
418
Acct
#
Attn:
Xxxx Xxxxxxxx/ Xxxxx Xxxxxx
Ph (000)000-0000
Fax (000)000-0000
Ph (000)000-0000
Fax (000)000-0000
Wire
instructions:
Chase
Manhattan Bank
Greenco
Enterprises, Inc.
Physical
delivery instructions:
TBD
Wire
instructions:
TBD
EXHIBIT
A
FORM
OF JOINDER TO REGISTRATION RIGHTS AGREEMENT
JOINDER
to the Registration Rights Agreement (this “Joinder”),
dated
as of [_____],
2006,
by and among [______________], a [_________] (the “Company”),
and
[______________], a [_________] (the “Agreement”),
is
made and entered into as of [__________]
by and
between the Company and [Holder]
(the
“Holder”).
Capitalized terms used but not otherwise defined herein shall have the meanings
set forth in the Agreement.
WHEREAS,
the Holder has acquired certain Common Stock of the Company and the Holder
and
the Company desire that the Holder, as a holder of such Common Stock, become
a
party to the Agreement, and the Holder agrees to do so in accordance with the
terms hereof.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Joinder hereby agree as follows:
1. Agreement
to be Bound.
The
Holder hereby agrees that upon execution of this Joinder, it shall become a
party to the Agreement and shall be fully bound by, and subject to, all of
the
covenants, terms and conditions of the Agreement as though an original party
thereto and shall be deemed a [DDJ] for all purposes thereof. In addition,
the
Holder hereby agrees that all Common Stock held by the Holder shall be deemed
Registrable Securities for all purposes of the Agreement.
2. Successors
and Assigns.
Except
as otherwise provided herein, this Joinder shall bind and inure to the benefit
of and be enforceable by the Company and its successors and assigns and the
Holder and any subsequent holders of the Holder’s Registrable Securities and the
respective successors and assigns of each of them, so long as they hold any
Registrable Securities.
3. Counterparts.
This
Joinder may be executed in separate counterparts each of which shall be an
original and all of which taken together shall constitute one and the same
agreement.
4. Notices.
For
purposes of Section 9(i) of the Agreement, all notices, demands or other
communications to the Holder shall be directed to:
[Name]
[Address]
[Attention]
[Facsimile
Number]
5. Governing
Law.
The
corporate law of the State of Delaware shall govern all issues concerning the
relative rights of the Company and its stockholders. All other provisions of
this Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York, without giving effect to principles
of
conflicts of laws or choice of law of the State of New York or
any
other jurisdiction which would result in the application of the law of any
jurisdiction other than the State of New York.
6. Descriptive
Headings.
The
descriptive headings of this Joinder are inserted for convenience only and
do
not constitute a part of this Joinder.
*
* * * *
IN
WITNESS WHEREOF, the parties hereto have executed this Joinder as of the date
first above written.
[_______________________]
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