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Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement") is made and entered
into as of January 7, 1997, by and between Primark Corporation, a Michigan
corporation ("Primark"), and Xxxxxx X. Xxxxxxxx ("Executive").
The parties hereby agree as follows:
1. Securities Subject to this Agreement.
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DEFINITIONS. The term "Registrable Securities" means any shares of common
stock, without par value, of Primark (the "Common Stock") which may be issued to
Executive under the terms of a Non-Qualified Stock Option Agreement dated
January 7, 1997.
2. Registration Rights.
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(a) Demand Registration Right.
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(i) RIGHT TO DEMAND. At any time after the issuance to Executive
of Registrable Securities, Executive may make a written request to Primark for
registration under and in accordance with the provisions of the Securities Act
of 1933 ("Securities Act"), of all or part of the Registrable Securities (a
"Demand Registration"). Such request shall specify the aggregate amount of the
Registrable Securities to be registered and shall also specify the intended
methods of disposition thereof.
(ii) NUMBER OF DEMAND REGISTRATIONS. Executive shall be entitled
to one Demand Registration. Primark shall not be deemed to have effected a
Demand Registration unless and until a registration statement covering the
requested amount of Registrable Securities is declared effective by the
Securities and Exchange Commission ("SEC").
(b) EFFECTIVE REGISTRATION STATEMENT AND EXPENSES. Primark agrees to
file with the SEC as soon as reasonably practicable after a request for Demand
Registration, but in no event later than the later of (x) ninety days after such
request for Demand Registration and (y) in the event Primark exercises its
privilege to delay the filing of a registration statement pursuant to Section
2(d) hereof, fifteen days after the end of the period during which Primark
delays such filing, a registration statement on any appropriate form (the
"Registration Statement") with respect to all of the Registrable Securities
requested to be included in such Demand Registration in accordance with the
foregoing. Primark agrees to use its reasonable best efforts to have the
Registration Statement declared effective by the SEC as soon as reasonably
practicable after such filing and to keep the Registration Statement
continuously effective until the earlier of (i) the date on which all of the
Registrable Securities registered thereunder have been disposed of and (ii) two
years following the date on which the Registration Statement is declared
effective.
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Subject to Section 4(e) hereof, Primark further agrees, if necessary,
to supplement or amend the Registration Statement, as required by the
registration form utilized by Primark or by the instructions applicable to such
registration form or by the Securities Act or the rules and regulations
thereunder. Primark agrees to pay all Registration Expenses (as hereinafter
defined) in connection with such Demand Registration, whether or not the
Registration Statement becomes effective.
(c) PIGGYBACK REGISTRATION RIGHTS. Subject to the terms of this
Agreement, in the event that Primark determines for its own account to register
for sale to the public shares of Primark common stock, Primark shall include in
such registration the Registrable Securities, provided that the Executive makes
a written request to Primark to have such shares of Registrable Securities or
any portion thereof registered and that request is received by Primark at least
30 days prior to the filing with the SEC of the registration statement.
(d) PRIMARK'S ABILITY TO POSTPONE. Primark shall have the privilege to
delay the filing of the Registration Statement for a reasonable period of time
(not exceeding 90 days) if Primark furnishes Executive with a certificate
stating that Primark has determined in good faith that effecting the
registration at such time would adversely affect a material financing,
acquisition, disposition of assets or stock, merger or other comparable
transaction or would require Primark to make public disclosure of information
the public disclosure of which would have a material adverse effect upon
Primark.
3. HOLDBACK AGREEMENTS.
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Executive agrees not to effect any public sale or distribution of the issue
being registered or a similar security of Primark, 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 ten business days
prior to, and during the 90-day period beginning on, the effective date of the
Registration Statement (except as part of such registration), if and to the
extent timely notified in writing by Primark.
4. REGISTRATION PROCEDURES.
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Whenever Executive has requested that any Registrable Securities be
registered pursuant to Section 2 of this Agreement, Primark will use its
reasonable best efforts to effect the registration and the sale of such
Registrable Securities and, in connection with any such request, Primark will as
expeditiously as possible:
(a) prepare and file with the SEC the Registration Statement and use its
best efforts to cause such Registration Statement to become effective;
(b) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep the
Registration Statement effective for as long as such registration is required to
remain effective pursuant to the terms hereof, cause the
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prospectus to be supplemented by any required prospectus supplement, and, as so
supplemented, to be filed pursuant to Rule 424 under the Securities Act;
(c) furnish to Executive at least one signed copy of the Registration
Statement and any post-effective amendment thereto, as soon as such documents
become available to Primark, and such number of conformed copies thereof and
such number of copies of the prospectus (including each preliminary prospectus)
and any amendments or supplements thereto, and any documents incorporated by
reference therein, as Executive may reasonably request as soon as such documents
become available to Primark;
(d) on or prior to the date on which the Registration Statement is declared
effective, use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as Executive reasonably requests and do any and all other acts and
things which may be reasonably necessary or advisable to enable Executive to
consummate the disposition in such jurisdictions of such Registrable Securities;
provided, that Primark 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 general taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction;
(e) notify Executive at any time during which a prospectus relating to such
Registrable Securities is required to be delivered under the Securities Act of
the happening of any event (including, without limitation, the involvement of
Primark in a material financing, acquisition, disposition of assets or stock,
merger or other comparable transaction (a "Material Transaction")) as a result
of which the prospectus included in the Registration Statement contains an
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and Primark will prepare 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; provided, however, that if such event relates
solely to a Material Transaction, Primark shall not be obligated to prepare such
supplement or amendment if Primark determines not to proceed with such Material
Transaction and notifies Executive of such determination;
(f) notify Executive of any stop order or other suspension of effectiveness
of the Registration Statement;
(g) use its reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible time;
(h) notify Executive promptly of the receipt by Primark of any notification
with respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction;
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(i) use its reasonable efforts to obtain the withdrawal of any suspension
of the qualification of the Registrable Securities for sale in a certain
jurisdiction at the earliest possible time; and
(j) use its reasonable efforts to take all other steps necessary to effect
the registration of the Registrable Securities contemplated hereby.
Primark may require Executive to furnish to Primark such information
regarding the distribution of such Registrable Securities and such other
information relating to Executive and its ownership of Registrable Securities as
Primark may from time to time reasonably request in writing.
Executive agrees that, upon receipt of any notice from Primark of the
happening of any event of the kind described in Section 4(e) hereof, Executive
will forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until Executive's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 4(e) hereof (or, in the event of a Material Transaction, until
Executive's receipt either of such supplemented or amended prospectus or of
notice from Primark that Primark has determined not to proceed with such
Material Transaction) and, if so directed by Primark, Executive will deliver to
Primark (at the expense of Primark) all copies, other than permanent file copies
then in Executive's possession, of the prospectus covering such Registrable
Securities current at the time of receipt of such notice.
5. REGISTRATION EXPENSES.
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All expenses incident to Primark'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, printing expenses
and fees and expenses of counsel for Primark and its independent certified
public accountants (all such expenses being herein called "Registration
Expenses") will be borne by Primark; provided that in no event shall
Registration Expenses include any underwriting discounts, sales commissions or
similar fees attributable to the sale of the Registrable Securities or the fees
and expenses of counsel or any special experts retained by Executive.
6. MISCELLANEOUS.
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(a) AMENDMENT AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless the parties hereto have agreed thereto in writing.
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(b) NOTICES. All notices and other communications provided for or permitted
hereunder shall be made by hand-delivery, registered first-class mail or
telecopier:
(i) if to Executive, at:
Xx. Xxxxxx X. Xxxxxxxx
000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
(ii) if to Primark, at:
Primark Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 0000X
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly given
when delivered by hand, if personally delivered, or two business days after
being deposited in the mail, postage prepaid, if mailed, or upon electronic
confirmation of receipt, if sent via telecopier.
(c) SUCCESSORS AND ASSIGNS. This Agreement may not be assigned except by an
instrument in writing signed by the parties hereto. Subject to the foregoing,
this Agreement shall inure to the benefit of and be binding upon the heirs,
successors and assigns of each of the parties hereto, and no other person shall
have any right, benefit or obligation under this Agreement, express or implied,
as a third party beneficiary or otherwise.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts applicable to
contracts made and to be performed wholly within that Commonwealth.
(g) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
or legality and enforceability of any such provision in every other respect and
of the remaining provisions contained herein shall not be in any way impaired
thereby.
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7. SHAREHOLDER APPROVAL. This Agreement shall be subject to the approval of
the shareholders of Primark at the next Annual Meeting of Shareholders and
shall be of no further force or effect unless such approval is obtained in a
separate vote by the affirmative vote of a majority of the voting shares present
or represented and entitled to vote at such meeting. In the event that such
shareholder approval is not forthcoming, this Agreement shall automatically
terminate.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first written above.
PRIMARK CORPORATION EXECUTIVE
By: /s/ XXXXXXX X. XXXXXXX /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxxx
Title: Senior Vice President, General
Counsel and Secretary
