EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
AMONG
XXXXXXXX XXXXXXX CORPORATION
AND
THE HOLDERS OF STOCK TO BE LISTED ON SCHEDULE 1
DATED: SEPTEMBER 11, 1996
TABLE OF CONTENTS
Page
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Section 1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Registration under the Securities Act. . . . . . . . . . . . 5
Section 3. Rule 144 . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 5. Amendments and Waivers . . . . . . . . . . . . . . . . . . . 19
Section 6. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . 19
Section 7. No Third-Party Beneficiary . . . . . . . . . . . . . . . . . 19
Section 8. Invalid Provisions . . . . . . . . . . . . . . . . . . . . . 19
Section 9. Nominees for Beneficial Owners . . . . . . . . . . . . . . . 19
Section 10. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 11. Deemed Acceptance by Investors; Assignment . . . . . . . . . 20
Section 12. Descriptive Headings; Section References . . . . . . . . . . 21
Section 13. Specific Performance . . . . . . . . . . . . . . . . . . . . 21
Section 14. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 21
Section 15. Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . 21
Section 16. Termination of Certain Rights. . . . . . . . . . . . . . . . 21
Section 17. No Inconsistent Agreements . . . . . . . . . . . . . . . . . 21
Section 18. Requisite Holders. . . . . . . . . . . . . . . . . . . . . . 22
Section 19. Completion of Schedule 1 . . . . . . . . . . . . . . . . . . 22
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (the Agreement) made and entered
into as of September 11, 1996, among Xxxxxxxx Xxxxxxx Corporation (formerly
Washington Construction Group, Inc.), a Delaware corporation (the Company) and
the holders of stock of the Company to be listed on Schedule 1 hereto as
prepared and completed by the Company in accordance with Section 19 hereof (the
Investors).
This Agreement is made pursuant to the Restructuring and Merger
Agreement (the Merger Agreement) dated as of May 28, 1996, between the Company
and Xxxxxxxx Xxxxxxx Corporation, a Delaware corporation (Xxxxxxxx Xxxxxxx).
NOW THEREFORE, in consideration of the foregoing and to implement
the terms of the Merger Agreement, the parties hereby agree as follows:
SECTION 1. DEFINITIONS
Except as otherwise defined herein, capitalized terms used herein
shall have the meanings ascribed to such terms in the Merger Agreement. The
following terms, as used herein, have the following meanings (all terms defined
herein in the singular to have the correlative meanings when used in the plural
and vice versa):
"AFFILIATE" means (i) when used with reference to any
partnership, any Person that, directly or indirectly through one or more
intermediaries, owns or controls 10% or more of either the capital or profit
interests of such partnership or is a general partner of such partnership or is
a Person in which such partnership has a 10% or greater direct or indirect
equity interest and (ii) when used with reference to any corporation, any Person
that, directly or indirectly owns or controls 10% or more of the outstanding
voting securities of such corporation or is a Person in which such corporation
has a 10% or greater direct or indirect equity interest. In addition, the term
Affiliate, when used with reference to any Person, also means any other Person
that, directly or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with such Person. As used in the
preceding sentence, (A) the term control means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of the entity referred to, whether through ownership of voting
securities, by contract or otherwise, and (B) the terms controlling" and
controls shall have meanings correlative to the foregoing.
"AFFILIATE OF THE COMPANY" has the meaning ascribed to the term
affiliate in Rule 144(a)(1) promulgated by the SEC pursuant to the Securities
Act, and any successor rule thereto.
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"AGREEMENT" means this Registration Rights Agreement, as the same
may be amended, modified or supplemented from time to time.
"BUSINESS DAY" means any day other than (a) a Saturday or Sunday,
(b) any day on which banking institutions located in the City of New York, New
York are required or authorized by law or by local proclamation to close or (c)
any day on which the New York Stock Exchange is closed.
"COMMERCIALLY REASONABLE EFFORTS" when used with respect to any
obligation to be performed or term or provision to be observed hereunder, means
such efforts as a prudent Person seeking the benefits of such performance or
action would make, use, apply or exercise to preserve, protect or advance its
rights or interests, PROVIDED, that such efforts do not require such Person to
incur a material financial cost or a substantial risk of material liability
unless such cost or liability (i) would customarily be incurred in the course of
performance or observance of the relevant obligation, term or provision, (ii) is
caused by or results from the wrongful act or negligence of the Person whose
performance or observance is required hereunder or (iii) is not excessive or
unreasonable in view of the rights or interests to be preserved, protected or
advanced. Such efforts may include, without limitation, the expenditure of such
funds and retention by such Person of such accountants, attorneys or other
experts or advisors as may be necessary or appropriate to effect the relevant
action; the undertaking of any special audit or internal investigation that may
be necessary or appropriate to effect the relevant action; and the commencement,
termination or settlement of any action, suit or proceeding involving such
Person to the extent necessary or appropriate to effect the relevant action.
"COMMON STOCK" means the Common Stock of the Company.
"DEMAND REGISTRATION" means any registration of Registrable
Securities under the Securities Act effected in accordance with Section 2.1
hereof.
"EFFECTIVE DATE" means the effective date of the Plan as provided
for therein.
"HOLDERS" means, subject to Section 9 hereof, the holders of
record of Registrable Securities, or, in the case of explicit references to
holders of securities of the Company other than Registrable Securities, the
record holders of such securities.
"INDEMNIFIED PARTY" has the meaning ascribed to such term in
Section 2.6(a) hereof.
"LOSS" has the meaning ascribed to such term in Section 2.6(a)
hereof.
"MATERIAL ADVERSE CHANGE" means (i) any general suspension of
trading in, or limitation on prices for, securities on any national securities
exchange or in the over-the-
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counter market in the United States of America, (ii) the declaration of a
banking moratorium or any suspension of payments in respect of banks in the
United States of America, (iii) the commencement of a war, armed hostilities or
other international or national calamity involving the United States of America,
(iv) any limitation (whether or not mandatory) by any governmental authority on,
or any other event which materially affects the extension of credit by banks or
other financial institutions, (v) any material adverse change in the Company's
business, condition (financial or otherwise) or prospects or (vi) a 15% or more
decline in the Dow Xxxxx Industrial Average or the Standard and Poor's Index of
500 Industrial Companies, in each case from the date a Notice of Demand is made.
"NOTICE OF DEMAND" means a request by Holders pursuant to Section
2.1 hereof that the Company effect the registration under the Securities Act of
the Registrable Securities which specifies: (i) the intended method or methods
and plan of disposition of the Registrable Securities and (ii) whether or not
such requested registration is to be an underwritten offering.
"PARTICIPATING HOLDERS" means, with respect to the Registration
of Registrable Securities by the Company pursuant to this Agreement, the
Requesting Holders and any other Holders that are entitled to participate in,
and are participating in or seeking to participate in, such registration.
"PERSON" means a natural person, a corporation, a partnership, a
trust, a joint venture, any regulatory authority or any other entity or
organization.
"PIGGYBACK REGISTRATION"means any registration of Registrable
Securities under the Securities Act effected in accordance with Section 2.2
hereof.
"PLAN" means the Chapter 11 plan of reorganization of Xxxxxxxx
Xxxxxxx as described in the Merger Agreement.
"REGISTERED ADDRESS" has the meaning set forth in Section 2.1(c)
hereof.
"REGISTRABLE SECURITIES" means the Common Stock acquired by the
Investors pursuant to the Plan or held by any Investor or any of the respective
Successors or the permitted assigns of any Investor, including, without
limitation, (a) any share of Common Stock issued or issuable on or after the
Effective Date pursuant to the Plan, including the Common Stock to be issued
pursuant to the exercise of Combined Company Rights (as defined in the Plan),
and (b) any securities issued or issuable with respect to Registrable
Securities, whether by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise provided that, (i) if the Common Stock or any
securities issued with respect thereto are listed on any national securities
exchange or included in any interdealer quotation system, then only such
securities held by Persons who
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are deemed to be "underwriters" or "affiliates" of the Company for purposes of
the Securities Act shall be deemed to be Registrable Securities and (ii) that
with respect to any permitted transferee of such securities, only such
securities held by permitted transferees that have complied with the assignment
requirements of Section 11 shall be deemed to be Registrable Securities. As to
any particular Registrable Securities, once issued such securities will cease to
be Registrable Securities when a registration statement with respect to the
resale of such securities has become effective under the Securities Act and such
securities shall have been disposed of in accordance with the plan of
distribution set forth in such registration statement.
"REGISTRATION EXPENSES" means all expenses incident to the
Company's performance of or compliance with this Agreement, including, without
limitation, (a) all registration, filing, securities exchange listing, rating
agency and National Association of Securities Dealers, Inc. fees, (b) all
registration, filing, qualification and other fees and expenses of complying
with securities or blue sky laws of all jurisdictions in which the securities
are to be registered and any legal fees and expenses incurred in connection with
the blue sky qualifications of the Registrable Securities and the determination
of their eligibility for investment under the laws of all such jurisdictions,
(c) all word processing, duplicating, printing, messenger and delivery expenses,
(d) the fees and disbursements of counsel for the Company and of its independent
public accountants, including, without limitation, the expenses of any special
audits or cold comfort letters required by or incident to such performance and
compliance, (e) the reasonable fees and disbursements incurred by the Holders of
the Registrable Securities being registered for one counsel or firm of counsel
selected by the Requisite Holders of such Registrable Securities, (f) premiums
and other costs of policies of insurance against liabilities arising out of the
public offering of the Registrable Securities being registered to the extent the
Company elects to obtain such insurance, (g) any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities (but excluding
underwriting discounts and commissions and transfer taxes, if any, relating to
the Registrable Securities being registered) and (h) fees and expenses of other
Persons retained or employed by the Company.
"REGISTRATION STATEMENT" means a registration statement filed
under the Securities Act pursuant to Section 2.1 hereof in accordance with
Section 2.3(a) hereof, including but not limited to a Shelf Registration
Statement.
"REQUESTING HOLDER" means each party providing a Notice of Demand
to the Company pursuant to Section 2.1(a).
"REQUISITE HOLDERS" means any Holder or Holders of a majority in
interest of the Registrable Securities included or to be included in a
registration or other relevant action, as the case may be.
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"RULE" 144 means Rule 144 promulgated by the SEC under the
Securities Act, and any successor provision thereto.
"SEC" means the United States Securities and Exchange Commission,
or any successor governmental agency or authority thereto.
"SHELF PERIOD" has the meaning ascribed to such term in Section
2.1(d) hereof.
"SHELF REGISTRATION STATEMENT" means a Registration Statement
filed under Rule 415 under the Securities Act.
"SUCCESSOR" means, with respect to any Person, a successor to
such Person by merger, consolidation, liquidation or other similar transaction.
"SUSPENSION NOTICE" has the meaning ascribed to such term in
Section 2.3(h) hereof.
"SUSPENSION PERIOD" has the meaning ascribed to it such term
Section 2.3(h) hereof.
"UNDERWRITER" has the meaning ascribed to such term in Section 2
of the Securities Act.
SECTION 2. REGISTRATION UNDER THE SECURITIES ACT
2.1 DEMAND REGISTRATION
(a) DEMAND FOR REGISTRATION. As soon as practicable following
the Company's receipt of a Notice of Demand from Holders holding at least
5,000,000 shares of the Registrable Securities (subject to appropriate
adjustments in the case of stock splits), the Company shall prepare and file a
Registration Statement covering the Registrable Securities that the Company has
been requested to register (whether pursuant to the Notice of Demand or pursuant
to notice provided under Section 2.1(c) hereof) and shall use Commercially
Reasonable Efforts to cause the Registration Statement to become effective
within one hundred eighty (180) days of its receipt of such Notice of Demand.
The Holders are entitled to a maximum of two Demand Registrations under this
Section 2.1 during the term of this Agreement; provided, however, that the
Holders may not make a second demand for registration until twelve (12) months
after the date on which the Registration Statement filed pursuant to the first
demand for registration shall have been declared effective; and provided
further, however, that the Holders may not make a second demand for registration
if the average daily trading volume of the Company's Common Stock on the
securities exchange on which the Common Stock is then
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listed shall have been one hundred thousand (100,000) shares per day for any
consecutive twenty (20) business day period preceding such second demand.
(b) LIMITATIONS ON DEMAND REGISTRATION. In the event that the
Requesting Holders determine for any reason (other than at the request or
recommendation of the Company or the underwriter or due to the occurrence of a
Material Adverse Change) not to proceed with a registration of Common Stock
requested pursuant to this Section 2.1 at any time before the Registration
Statement has been declared effective by the SEC, and such Registration
Statement, if theretofore filed with the SEC, is withdrawn with respect to the
Common Stock covered thereby, and such Holders reimburse the Company for all
fees, costs and expenses in connection therewith, then the Holders shall not be
deemed to have exercised their right to a Demand Registration pursuant to this
Section 2.1 with respect to such withdrawn Registration Statement. If the
Holders determine not to proceed with such a registration upon the request or
recommendation of the Company or the underwriter or due to the occurrence of a
Material Adverse Change, the Holders will not be required to reimburse the
Company for its fees, costs and expenses and the Holders shall not be deemed to
have exercised their right to a Demand Registration pursuant to this Section 2.1
with respect to such registration.
(c) NOTICE TO HOLDERS. Upon receipt of any Notice of Demand,
the Company will give prompt notice (but in any event within fifteen (15) days
after such receipt) to all Holders of Registrable Securities at the address
provided to the Company in Schedule 1 or as otherwise furnished in writing to
the Company for purposes of this Agreement (the Registered Address) of the
Notice of Demand and of the Holders' rights under this Section 2.1. Upon the
written request of any such Holder made within twenty (20) days after the
receipt by that Holder of the notice (which request shall specify the
Registrable Securities intended to be disposed of by such Holder and the
intended method or methods of disposition thereof) the Company shall use
Commercially Reasonable Efforts to effect the registration under the Securities
Act of all Registrable Securities which the Company has been so requested to
register by the Holders thereof, to the extent required to permit the
disposition (in accordance with the intended method or methods thereof as
aforesaid) of the Registrable Securities so to be registered.
(d) CONTINUOUS EFFECTIVENESS OF REGISTRATION STATEMENTS. Once a
Registration Statement is effective pursuant to Section 2.1(a) hereof, the
Company shall use Commercially Reasonable Efforts to cause such Registration
Statement to remain continuously effective (i) in the case of a Registration
Statement other than a Shelf Registration Statement, until the earlier of (x)
the two (2) month anniversary of the date such Registration Statement is
declared effective by the SEC and (y) the date on which all of the Registrable
Securities covered by such Registration Statement have been sold; and (ii) in
the case of a Shelf Registration Statement, until the earlier of (x) six (6)
months following the date such Shelf Registration Statement is declared
effective by the SEC and (y) the date on which all of the Registrable Securities
covered by such Shelf Registration Statement have been sold, but in no event (in
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either case) prior to the expiration of the applicable period referred to in
Section 4(3) of the Securities Act and Rule 174 thereunder (such period being
defined as the Effective Period with respect to any such Registration Statement
other than a Shelf Registration Statement and as the Shelf Period with respect
to any such Shelf Registration Statement); PROVIDED, HOWEVER, that (x) with
respect to any Registration Statement the Company may suspend use of such
Registration Statement at any time if the continued effectiveness thereof would
require the Company to disclose a material financing, acquisition or other
corporate transaction, which disclosure the Company shall have determined in
good faith is not in the best interests of the Company and its stockholders
(provided the Effective Period or Shelf Period, as the case may be, shall be
extended by the number of days of any such suspension) and (y) with respect to
any Registration Statement the Company may suspend use of any such Registration
Statement during any period if each of the Company and the Requisite Holders of
the Registrable Securities covered by such Registration Statement consents in
writing to such suspension for such period.
(e) PRIORITY IN DEMAND REGISTRATIONS. If a registration
pursuant to this Section 2.1 involves an underwritten offering and the managing
underwriter of such underwritten offering advises the Company in writing (with a
copy to each Participating Holder) of its belief that the amount of securities
requested to be included in such registration exceeds the amount which can be
sold in (or during the time of) such offering within an acceptable price range,
then the amount of securities to be sold in such offering shall be reduced in
accordance with the advice of such managing underwriter. In the case of any
such reduction, then the Company shall include in such Demand Registration that
amount of Registrable Securities that the Company is so advised can be sold in
(or during the time of) the offering, as follows: FIRST, Registrable Securities
of any Participating Holder that is an underwriter or and affiliate of the
Company in an amount sufficient to include all the shares of Registrable
Securities offered by such Participating Holder or an amount sufficient to
reduce the amount of such Participating Holder's Registrable Securities held
after the offering to a level that would cause such Participating Holder to no
longer be an underwriter or an affiliate of the Company, whichever amount is
less; SECOND, such Registrable Securities requested to be included in such
Registration Statement by any other Participating Holder, PRO RATA on the basis
of the amount of such securities held by such other holder; and THIRD, all other
securities of the Company duly requested to be included in such Registration
Statement.
2.2 PIGGYBACK REGISTRATION
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. If the Company at
any time proposes to register any of its equity securities under the Securities
Act (other than by a registration on Form S-4 or Form S-8 or any successor or
similar form then in effect and other than pursuant to Section 2.1 hereof) in a
form and in a manner that would permit registration of the Registrable
Securities, whether or not for sale for its own account, it will give prompt
(but in no event less than 30 days prior to the proposed date of filing the
registration statement
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relating to such registration) notice to all Holders of Registrable Securities
of the Company's intention to do so and of such Holders' rights under this
Section 2.2. Upon the written request of any such Holder made within twenty
(20) days after the receipt by that Holder of the notice (which request shall
specify the Registrable Securities intended to be disposed of by such Holder and
the intended method or methods of disposition thereof), the Company shall use
Commercially Reasonable Efforts to effect the registration under the Securities
Act of all Registrable Securities which the Company has been so requested to
register by the Holders thereof, to the extent required to permit the
disposition (in accordance with the intended method or methods thereof as
aforesaid) of the Registrable Securities so to be registered, PROVIDED that if,
at any time after giving notice of its intention to register any equity
securities and prior to the effective date of the registration statement filed
in connection with such registration, the Company determines for any reason not
to register or to delay registration of the equity securities, the Company may,
at its election, give notice of that determination to each such Holder and,
thereupon, (i) in the case of a determination not to register, shall be relieved
of its obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay all Registration Expenses in
connection therewith as provided in Section 2.3(b) hereof), without prejudice,
however, to the right of the Holders to request that such registration be
effected as a Demand Registration in accordance with Section 2.1 hereof, and
(ii) in the case of a determination to delay registering, shall be permitted to
delay registering any Registrable Securities for the same period as the delay in
registering such other equity securities. No registration effected under this
Section 2.2 will be deemed to have been effected pursuant to Section 2.1 hereof
(except for any right to a Demand Registration which may be exercised pursuant
to the last clause of subsection (i) of the preceding sentence) or will relieve
the Company of its obligation to effect a Demand Registration in accordance with
Section 2.1. hereof.
(b) PRIORITY IN PIGGYBACK REGISTRATIONS. If a registration
pursuant to this Section 2.2 involves an underwritten offering and the managing
underwriter of such underwritten offering advises the Company in writing (with a
copy to each Participating Holder) of its belief that the amount of securities
requested to be included in such registration exceeds the amount which can be
sold in (or during the time of) such offering within an acceptable price range,
then the Company will include in such registration that amount of securities
which the Company is so advised can be sold in (or during the time of) the
offering as follows: FIRST, all securities proposed by the Company to be sold
for its own account; SECOND, Registrable Securities of any Participating Holder
that has properly requested that its Registrable Securities be included in such
registration and that is an underwriter or an affiliate of the Company in an
amount sufficient to include all the Registrable Securities offered by such
Participating Holder or an amount sufficient to reduce the amount of such
Participating Holder's Registrable Securities held after the offering to a level
that would cause such Participating Holder to no longer be an underwriter or an
affiliate of the Company, whichever amount is less; THIRD, such Registrable
Securities requested to be included in such registration statement by any other
Participating Holder, PRO RATA on the basis of the amount of such securities
held by such other
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Participating Holder; and fourth, all other securities of the Company duly
requested to be included in such registration statement.
2.3 REGISTRATION TERMS AND PROCEDURES
(a) REGISTRATION STATEMENT FORM. Registrations under Section
2.1 hereof shall be on Form S-1 or Form S-3 (if use of such a form is then
available to cover resales of the Registrable Securities) or such other
appropriate form of the SEC as shall permit the sale, resale or other
disposition of such Registrable Securities in accordance with the intended
method or methods of disposition.
(b) REGISTRATION EXPENSES. Subject to Section 2.3(f) hereof,
the Company will pay all Registration Expenses incurred in connection with a
registration to be effected (whether or not effected or deemed effected pursuant
to subsection (c) below) pursuant to Sections 2.1 hereof or 2.2 hereof.
(c) EFFECTIVENESS OF CERTAIN DEMAND REGISTRATIONS. A Demand
Registration will not be deemed to have been effected under Section 2.1 hereof
unless the Registration Statement with respect thereto has been declared
effective by the SEC and, subject to Section 2.3(g)(ii) hereof, (i) in the case
of a Registration Statement other than a Shelf Registration Statement, such
Registration Statement remains effective until the earlier of (x) forty-five
(45) days of the date such Registration Statement is declared effective by the
SEC and (y) the date on which all of the Registrable Securities covered by such
Registration Statement have been sold; and (ii) in the case of a Shelf
Registration Statement, such Shelf Registration Statement remains effective
until the earlier of six (6) months from its effective date (subject to
extension as contemplated by Section 2.1(d) and the last sentence of Section
2.3(h)(ii) hereof) or the date on which all of the Registrable Securities
covered by such Shelf Registration Statement have been sold; PROVIDED, HOWEVER,
in either case, that if (x) after such registration statement has been declared
effective, the marketing of Registrable Securities offered pursuant to such
registration statement is materially disrupted or adversely affected as a result
of any stop order, injunction or other order or requirement of the SEC or any
other governmental agency or court (for reasons other than a misrepresentation
or omission by any Requesting Holder or any Participating Holder) or (y) the
conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with such registration have not been
satisfied (for reasons other than a wrongful or bad faith act, omission or
misrepresentation by any Requesting Holder or any Participating Holder), such
registration statement will be deemed not to have become effective. If a
registration pursuant to Section 2.1 hereof is deemed not to have been effected
hereunder, then the Company shall continue to be obligated to effect the
remaining number of unused Demand Registrations in accordance with Section 2.1
hereof.
(d) SELECTION OF UNDERWRITER. If, in connection with a
registration effected pursuant to Section 2.1 hereof, the Requisite Holders so
elect, the offering of
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Registrable Securities pursuant to Section 2.1 hereof shall be in the form of an
underwritten offering. If the Requisite Holders so elect, they shall select one
or more nationally recognized firms of investment bankers to act as the
book-running managing underwriter or underwriters in connection with such
offering, PROVIDED that such selection shall be subject to the consent of the
Company, which consent shall not be unreasonably withheld.
(e) LIMITATION ON SHELF REGISTRATION STATEMENTS.
Notwithstanding the provisions of Section 2.1 hereof, only those Participating
Holders who are deemed to be underwriters or affiliates of the Company for
purposes of the Securities Act shall be permitted to demand the registration of
Registrable Securities pursuant to a Shelf Registration Statement.
(f) WITHDRAWAL. Any Holder participating in a registration
pursuant to this Agreement shall be permitted to withdraw all or part of its
Registrable Securities from such registration at any time prior to the effective
date of the registration statement covering such securities; provided that, in
the event of a withdrawal from a registration effected pursuant to Section 2.1
hereof, such registration shall be deemed to have been effected for purposes of
the first sentence of Section 2.1(b) hereof except as otherwise provided in
Section 2.1(b) hereof.
(g) REGISTRATION PROCEDURES. In connection with the Company's
obligations to register Registrable Securities pursuant to this Agreement, the
Company will use Commercially Reasonable Efforts to effect such registration so
as to permit the sale, resale or other disposition of any Registrable Securities
included in such registration in accordance with the intended method or methods
of distribution thereof, and pursuant thereto the Company will as expeditiously
as possible:
(i) prepare and (as soon thereafter as practicable) file
with the SEC the requisite registration statement containing all information
required thereby to effect such registration and thereafter use Commercially
Reasonable Efforts to cause such registration statement to become and remain
effective in accordance with the terms of this Agreement, PROVIDED that as far
in advance as practicable before filing such registration statement or any
amendment, supplement or exhibit thereto (but, with respect to the filing of
such registration statement, in no event later than seven (7) days prior to such
filing), the Company will furnish to the Participating Holders or their counsel
copies of reasonably complete drafts of all such documents proposed to be filed
(excluding exhibits, which shall be made available upon request by any
Participating Holder), and any such Holder shall have the opportunity to object
to any information contained therein and the Company will make the corrections
reasonably requested by such Holder, in writing, with respect to information
relating to such Holder or the plan of distribution of the Registrable
Securities prior to filing any such registration statement, amendment,
supplement or exhibit;
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(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith (A) as reasonably requested by any Participating Holder, in writing,
to which such registration statement relates (but only to the extent such
request relates to information with respect to such Holder) and (B) as may be
necessary to keep such registration statement effective (x) during the Effective
Period in the case of a Registration Statement other than a Shelf Registration
Statement and (y) during the Shelf Period in the case of a Shelf Registration
Statement, and comply with the provisions of the Securities Act with respect to
the sale, resale or other disposition of all securities covered by such
registration statement during such period in accordance with the intended method
or methods of disposition by the seller or sellers thereof set forth in such
registration statement;
(iii) furnish to each Holder covered by, and each
underwriter or agent participating in the disposition of securities under, such
registration statement such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
excluding all exhibits and documents incorporated by reference, which exhibits
and documents shall be furnished to any such Person upon request), such number
of copies of the prospectus contained in such registration statement (including
each preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act relating to such Holder's
Registrable Securities, in conformity with the requirements of the Securities
Act, and such other documents as such Holder, underwriter or agent may
reasonably request to facilitate the disposition of such Registrable Securities;
(iv) use Commercially Reasonable Efforts to register or
qualify all Registrable Securities and other securities covered by such
registration statement under all applicable blue sky and other securities laws,
and to keep such registration or qualification in effect for so long as such
registration statement remains in effect, and take any other action which may be
reasonably necessary or advisable to enable such Holder to consummate the
disposition of the securities owned by such Holder, except that the Company
shall not for any such purpose be required to (A) qualify generally to do
business as a foreign corporation in any jurisdiction wherein it would not but
for the requirements of this clause (iv) be obligated to be so qualified, (B)
subject itself to taxation in any such jurisdiction or (C) consent to general
service of process in any jurisdiction;
(v) use Commercially Reasonable Efforts to cause all
Registrable Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities applicable
to the Company as may be reasonably necessary to enable the seller or sellers
thereof (or underwriter or agent, if any) to consummate the disposition of such
Registrable Securities in accordance with the plan of distribution set forth in
such registration statement;
11
(vi) promptly notify each Participating Holder at its
Registered Address and any underwriter or agent participating in the disposition
of Registrable Securities covered by such registration statement, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event known to
the Company as a result of which, the prospectus included in such registration
statement, as then in effect, includes 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 in light of the circumstances under
which they were made, and promptly prepare and furnish to such Holder (or
underwriter or agent, if any) a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made;
(vii) 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 (but not more than
fifteen (15) months) after the effective date of the registration statement, an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 promulgated thereunder, and furnish to each Holder covered by
such registration statement or any participating underwriter or agent a copy of
any amendment or supplement to such registration statement or prospectus five
(5) calendar days (or such shorter period as may be practicable under the
circumstances) prior to the filing thereof with the SEC;
(viii) provide and cause to be maintained a transfer agent
and registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
registration statement;
(ix) use Commercially Reasonable Efforts to, on or prior
to the effective date of such registration statement, list the Registrable
Securities covered by such registration statement on any securities exchange on
which the Registrable Securities are then listed;
(x) cooperate with each Participating Holder and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the National Association of Securities Dealers, Inc.;
(xi) use Commercially Reasonable Efforts to prevent the
issuance by the SEC or any other governmental agency or court of a stop order,
injunction or other order suspending the effectiveness of such registration
statement and, if such an order is issued, use Commercially Reasonable Efforts
to cause such order to be lifted as promptly as practicable;
(xii) take such other actions as the Requisite Holders of
such Registrable Securities shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
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(xiii) promptly notify each Participating Holder and each
underwriter or agent, if any:
(1) when such registration statement or any prospectus
used in connection therewith, or any amendment or supplement thereto, has been
filed and, with respect to such registration statement or any post-effective
amendment thereto, when the same has become effective;
(2) of any written comments from the SEC with respect
to any filing referred to in clause (A) and of any written request by the SEC
for amendments or supplements to such registration statement or prospectus;
(C) of the notification to the Company by the SEC of
its initiation of any proceeding with respect to, or of the issuance by the SEC
of, any stop order suspending the effectiveness of such registration statement;
and
(D) of the receipt by the Company of any notification
with respect to the suspension of the qualification of any Registrable
Securities for sale, resale or other disposition under the applicable securities
or blue sky laws of any jurisdiction;
(xiv) cooperate with each Participating Holder and each
underwriter or agent participating in the distribution of such Registrable
Securities to facilitate the timely preparation and delivery of certificates
(which shall not bear any restrictive legends, other than as required by
applicable law) representing securities sold under a registration statement
hereunder, and enable such securities to be in such denominations and registered
in such names as such seller, underwriter or agent may request and keep
available and make available to the Company's transfer agent, prior to the
effectiveness of such registration statement, an adequate supply of such
certificates;
(xv) not later than the effective date of such
registration statement, provide a CUSIP number for all Registrable Securities
covered by a registration statement hereunder;
(xvi) incorporate in the registration statement or any
amendment, supplement or post-effective amendment thereto such information as
each Participating Holder, each underwriter or agent (if any) or their
respective counsel may reasonably request, in writing, to be included therein
with respect to any Registrable Securities being sold by such Holder to such
underwriter or agent, the purchase price being paid therefor by such underwriter
or agent and any other terms of the offering of such Registrable Securities;
(xvii) during any period when a prospectus is required to be
delivered under the Securities Act, make timely periodic filings with the SEC
pursuant to and containing the information required by the Exchange Act (whether
or not the Company is required to make such filings pursuant to such Act); and
(xviii) in connection with an underwritten offering,
participate, to the extent reasonably requested by the Requisite Holders of the
securities included in the offering or the managing underwriter for the
offering, in customary efforts to sell the securities under the offering.
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(h) AGREEMENTS OF CERTAIN HOLDERS
(i) Each Participating Holder shall furnish to the
Company, in writing, such information regarding such Holder, the Registrable
Securities held by such Holder and the intended plan of distribution of such
securities as the Company may from time to time reasonably request in writing in
connection with such registration.
(ii) Each Participating Holder agrees, by acquisition of
such Registrable Securities, that upon receipt of any notice (a Suspension
Notice) from the Company of the suspension of the use of a Shelf Registration
Statement as contemplated by Section 2.1(d) (as limited pursuant to Section
2.3(e)) or of the happening of any event of the kind described in clause (vi) of
Section 2.3(g) hereof, such Holder will forthwith discontinue such Holder's
disposition of Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until such Holder's receipt of the
copies of the supplemented or amended prospectus contemplated by clause (vi) of
Section 2.3(g) hereof or of a notice that such Holder may resume dispositions of
Registrable Securities pursuant to the registration statement (the period from
the date on which such Holder receives a Suspension Notice to the date on which
such Holder receives copies of the supplemental or amended prospectus being
herein called the Suspension Period). The Company shall take such actions as
are necessary to end the Suspension Period as promptly as practicable. The
applicable time period for effectiveness in Section 2.3(c) shall be extended by
the number of days of a Suspension Period.
2.4 UNDERWRITTEN OFFERINGS
(a) UNDERWRITTEN OFFERINGS IN CONNECTION WITH A DEMAND
REGISTRATION. If requested by the underwriters for any underwritten offering in
connection with a registration pursuant to Section 2.1 hereof, the Company will
enter into an underwriting agreement with such underwriters for such offering,
such agreement (i) to be satisfactory in substance and form to the Company and
to the Requisite Holders, and (ii) to contain such representations and
warranties by the Company and the Participating Holders and such other terms as
are generally prevailing in agreements of such type, including, without
limitation, indemnities to the effect and to the extent provided in Section 2.6
hereof. Each Investor (so long as it or any of its Affiliates holds Registrable
Securities to be included in such registration) shall be a party to such
underwriting agreement and may, at its option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters, also be made to and for its
benefit and that any or all of the conditions precedent to the obligations of
such underwriters under such underwriting agreement be conditions precedent to
its obligations thereunder.
(b) UNDERWRITTEN OFFERINGS IN CONNECTION WITH PIGGYBACK
REGISTRATIONS. If the Company at any time proposes to register any of its
equity securities under the Securities Act as contemplated by Section 2.2 hereof
and such securities are to be distributed by or through one or more
underwriters, the Company will, if requested by any Participating Holder and
subject to Section 2.2(b) hereof, arrange for such underwriters to include
Registrable Securities to be offered and sold by such Holder or Holders among
the securities to be distributed by such underwriters. The Participating
Holders shall be parties to the underwriting agreement between the Company and
such underwriters, such agreement (i) to be satisfactory in substance and form
to the Company and to the Requisite Holders, and (ii) to contain such
representations and warranties by the Company and the Participating Holders and
such other
14
terms as are generally prevailing in agreements of such type, including, without
limitation, indemnities to the effect and to the extent provided in Section 2.6
hereof. The Requisite Holders of the Registrable Securities included in such
offering may, at their option, require that any or all of the representations
and warranties by, and the other agreements on the part of, the Company to and
for the benefit of such underwriters, also be made to and for the benefit of the
Participating Holders and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such Holders thereunder.
2.5 PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give Participating Holders, their
underwriters or agents, if any, and their respective counsel and accountants,
reasonable access to its books and records and such opportunities to discuss the
business of the Company with its officers and the independent public accountants
who have certified its financial statements as shall be necessary, in the
opinion of such Holders' and such underwriters' or agents' respective counsel,
to conduct a reasonable investigation within the meaning of the Securities Act.
2.6 INDEMNIFICATION
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, each
Participating Holder, its directors, officers, shareholders, employees,
investment advisers, agents and Affiliates, either direct or indirect (and each
such Affiliate's directors, officers, shareholders, employees, investment
advisers and agents), and each other Person, if any, who controls such Persons
within the meaning of the Securities Act (each such Person, an Indemnified
Party), from and against any losses, claims, damages, liabilities or expenses,
joint or several (each a Loss and collectively, Losses), to which such
Indemnified Party may become subject under the Securities Act or otherwise, to
the extent that such Losses (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act (including all documents incorporated therein by reference), any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or 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, and the Company will
reimburse such Indemnified Party for any legal or any other expenses reasonably
incurred by it in connection with investigating or defending against any such
Loss, action or proceeding; PROVIDED that in any such case the Company shall not
be liable to any particular Indemnified Party to the extent that such Loss (or
action or proceeding in respect thereof) arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Indemnified
Party specifically for inclusion therein; and PROVIDED, FURTHER, that the
Company shall not be liable in any such case to the extent it is finally
determined by a court of competent jurisdiction that any such Loss (or action or
proceeding in respect thereof) arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
15
(i) in any such preliminary prospectus, if (A) it was the
responsibility of such Indemnified Party to provide the Person asserting such
Loss with a current copy of the final prospectus or summary prospectus contained
therein and such Indemnified Party failed to deliver or cause to be delivered a
copy of the final prospectus or summary prospectus contained therein to such
Person after the Company had furnished such Indemnified Party with a sufficient
number of copies of the same prior to the sale of Registrable Securities to the
Person asserting such Loss and (B) the final prospectus or summary prospectus
contained therein corrected such untrue statement or omission; or
(ii) in such final prospectus or summary prospectus
contained therein, if such untrue statement or omission is corrected in an
amendment or supplement to such final prospectus or summary prospectus contained
therein and such amendment or supplement has been delivered to the Indemnified
Party prior to the sale of Registrable Securities to the Person asserting such
Loss and the Indemnified Party thereafter fails to deliver the final prospectus
or summary prospectus contained therein as so amended or supplemented prior to
or concurrently with such sale after the Company had furnished such Indemnified
Party (in accordance with the notice provisions contained in Section 10 for
Persons who are parties to this Agreement) with a sufficient number of copies of
the same for delivery to purchasers of securities.
Such indemnity will remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall survive
the transfer of such securities by such Indemnified Party. The Company shall
also indemnify each other Person who participates (including as an underwriter)
in the offering or sale of Registrable Securities hereunder, their officers and
directors and each other Person, if any, who controls any such participating
Person within the meaning of the Securities Act to the same extent as provided
above with respect to Indemnified Parties.
(b) INDEMNIFICATION BY THE SELLERS. The Company may require, as
a condition to including any Registrable Securities in any registration
statement filed pursuant to Sections 2.1 or 2.2 hereof and as a condition to
indemnifying such sellers pursuant to this Section 2.6, that the Company shall
have received an undertaking reasonably satisfactory to it from each
Participating Holder included in any such offering regarding its agreement to
indemnify and hold harmless and reimburse (in the same manner and to the same
extent as set forth in paragraph (a) of this Section 2.6) the Company, each
director, officer, employee and agent of the Company, and each other Person, if
any, who controls the Company within the meaning of the Securities Act, from and
against any Losses (or actions or proceedings, whether commenced or threatened,
in respect thereof) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in any registration statement
pursuant to which securities of such Holder are registered under the Securities
Act (including all documents incorporated therein by reference), any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged omission from such
registration statement, preliminary prospectus, final prospectus or summary
prospectus, or any amendment or supplement thereto required to be stated therein
or necessary to make the statements therein not misleading, if (but only if)
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Participating Holder specifically for inclusion
therein; PROVIDED, HOWEVER, that such Participating Holder shall not be
obligated to provide such indemnity to the extent that such
16
Losses result, directly or indirectly, from the failure of the Company to
promptly amend or take action to correct or supplement or to deliver timely any
such registration statement, prospectus, amendment or supplement based on
corrected or supplemental information provided in writing by such Participating
Holder to the Company expressly for such purpose; and PROVIDED FURTHER, that the
obligation to provide indemnification pursuant to this Section 2.6(b) shall be
several, and not joint and several, among such indemnifying parties.
Notwithstanding anything in this Section 2.6(b) to the contrary, in no event
shall the liability of any Participating Holder under such indemnity be greater
in amount than the amount of the proceeds received by such Participating Holder
upon the sale of its Registrable Securities in the offering to which the Losses
relate. Such indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of the Company or any such director, officer,
employee, agent or participating or controlling Person and shall survive the
transfer of such securities by such Participating Holder.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an
Indemnified Party of notice of the commencement of any action or proceeding
involving a claim referred to in paragraph (a) or (b) of this Section 2.6, such
Indemnified Party will, if a claim in respect thereof is to be made against an
indemnifying party, give prompt 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 this Section 2.6, except to the extent that the indemnifying
party is actually and materially 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 to assume the defense thereof
(such assumption to constitute its acknowledgement of its agreement to indemnify
the Indemnified Party with respect to such matters), 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 fees or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable costs of
investigation; PROVIDED, HOWEVER, that if, in such Indemnified Party's
reasonable judgment, a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, such Indemnified Party
shall be entitled to separate counsel reasonably satisfactory to the
indemnifying party at the expense of the indemnifying party; and PROVIDED,
FURTHER, that, unless there exists a conflict of interest among indemnified
parties, all indemnified parties in respect of such claim shall be entitled to
only one counsel or firm of counsel for all such indemnified parties. In the
event an indemnifying party shall not be entitled, or elects not, to assume the
defense of a claim, such indemnifying party shall not be obligated to pay the
fees and expenses of more than one counsel or firm of counsel for all parties
indemnified by such indemnifying party in respect of such claim, unless in the
reasonable judgment of any such Indemnified Party a conflict of interest exists
between such Indemnified Party and any other of such indemnified parties in
respect of such claim, in which event the indemnifying party shall be obligated
to pay the fees and expenses of one additional counsel or firm of counsel for
such indemnified parties. No indemnifying party shall, without the consent of
the Indemnified Party, consent to entry of any judgment or enter into any
settlement that (i) does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party of a release from all
Losses in respect of such claim or litigation or (ii) would impose injunctive
relief on such Indemnified Party. No indemnifying party shall be subject to any
Losses for any settlement made without its consent, which consent shall not be
unreasonably withheld.
17
(d) OTHER INDEMNIFICATION. The provisions of this Section 2.6
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.
(e) INDEMNIFICATION PAYMENTS. The indemnification required by
this Section 2.6 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, promptly as and when bills are
received or Losses are incurred.
(f) CONTRIBUTION. If for any reason the foregoing indemnity and
reimbursement is unavailable or is insufficient to hold harmless an Indemnified
Party under paragraph (a) or (b) of this Section 2.6, then each indemnifying
party shall contribute to the amount paid or payable by such Indemnified Party
as a result of any Loss (or actions or proceedings, whether commenced or
threatened, in respect thereof), including, without limitation, any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such Loss, action or proceeding, 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. 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. Notwithstanding anything in this Section 2.6(f) to the contrary, no
indemnifying party (other than the Company) shall be required pursuant to this
Section 2.6(f) to contribute any amount in excess of the amount by which the net
proceeds received by such indemnifying party from the sale of Registrable
Securities in the offering to which the Losses of the indemnified parties relate
exceeds the amount of any damages which such indemnifying party has otherwise
been required to pay by reason of such untrue statement or 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.
SECTION 3. RULE 144
(a) The Company will file the reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
promulgated by the SEC thereunder and will take such further action as any
Holder may reasonably request, to the extent required from time to time to
enable the Holder to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144,
or (ii) any similar rule or regulation hereafter adopted by the SEC. Upon the
request of any Holder, the Company will deliver to that Holder a written
statement as to whether it has complied with such requirements, a copy of the
most recent annual or quarterly report of the Company, and such other reports or
documents so filed as a Holder may reasonably request in availing itself of any
rule or regulation of the SEC allowing a Holder to sell any such securities
without registration.
(b) If at any time the Company is not required to file reports
in compliance with either Section 13 or Section 15(d) of the Exchange Act, the
Company at its expense will, forthwith upon the request of any Holder make
available adequate current public information with respect to the Company within
the meaning of paragraph (c)(2) of Rule 144.
18
SECTION 4. TERM
This Agreement shall enter into force on the date hereof and
shall continue in full force and effect, subject to Section 16 hereof, until the
third (3rd) anniversary of the date hereof.
SECTION 5. AMENDMENTS AND WAIVERS
This Agreement may be amended, supplemented or modified only by a
writing (which makes reference to this Agreement) executed by the Company and
Holders holding at least fifty percent (50%) of the Registrable Securities then
held by all the Holders. Any term or condition of this Agreement may be waived
at any time by the party that is entitled to the benefit thereof, but no such
waiver shall be effective unless set forth in a written instrument duly executed
by or on behalf of the party waiving such term or condition. No waiver by any
party of any term or condition of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same term or condition of
this Agreement on any future occasion.
SECTION 6. ENTIRE AGREEMENT
This Agreement supersedes all prior discussions and agreements
between the parties with respect to the subject matter hereof and contains the
sole and entire agreement between the parties hereto with respect to the subject
matter hereof.
SECTION 7. NO THIRD-PARTY BENEFICIARY
The terms and provisions of this Agreement are intended solely
for the benefit of each party, their respective Successors or permitted assigns
and it is not the intention of the parties to confer third-party beneficiary
rights upon any other Person other than (i) any Affiliate of any Investor, (ii)
any permitted transferee, direct or indirect, of any of the Registrable
Securities held by any Investor or any of their respective Affiliates, or (iii)
any other Person entitled to notice of the registration of Registrable
Securities under Sections 2.1(c) or 2.2(a) hereof or to indemnity under Section
2.6 hereof.
SECTION 8. INVALID PROVISIONS
If any provision of this Agreement is held to be illegal, invalid
or unenforceable under any present or future law, (i) such provision will be
fully severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(iii) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (iv) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
SECTION 9. NOMINEES FOR BENEFICIAL OWNERS
In the event that any Registrable Securities are held by a
nominee for the beneficial owner thereof, the beneficial owner thereof may, at
its election, be treated as the holder of such Registrable Securities for
purposes of request or other action by any Holder or
19
Holders pursuant to this Agreement or any determination of any amount of shares
of Registrable Securities held by any Holder or Holders of Registrable
Securities contemplated by this Agreement. If the beneficial owner of any
Registrable Securities so elects, the Company may require assurances reasonably
satisfactory to it of such owner's beneficial ownership of such Registrable
Securities. For purposes of this Agreement, beneficial ownership and beneficial
owner refer to beneficial ownership as defined in Rule 13d-3 (without regard to
the 60-day provision in paragraph (d)(1)(i) thereof) under the Exchange Act.
SECTION 10. NOTICES
All notices, requests and other communications hereunder must be
in writing and will be deemed to have been duly given only if (a) delivered
personally, (b) by facsimile transmission, (c) by Federal Express or other
nationally recognized courier service or (d) mailed (first class postage
prepaid) to the parties at the following addresses or facsimile numbers:
(i) If to the Company, to:
Xxxxxxxx Xxxxxxx Xxxxx,
Xxxxx Xxxxx 00000
Attention: General Counsel
(ii) If to an Investor, to the Registered Address for
that Investor.
With respect to any other Holder of Registrable Securities entitled to
receive notice, requests or other communications hereunder, such notices,
requests and other communications shall be sent to the Registered Addresses and
telecopy numbers provided to the Company and the other parties hereto by notice
as herein provided and referencing this Agreement. All such notices, requests
and other communications will (A) if delivered personally to the address as
provided in this Section 10, be deemed given upon delivery, (B) if delivered by
facsimile transmission to the facsimile number as provided in this Section 10,
be deemed given upon receipt, and (C) if delivered by courier service or by mail
in the manner described above to the address as provided in this Section 10, be
deemed given upon receipt (in each case regardless of whether such notice,
request or other communication is received by any other Person to whom a copy of
such notice is to be delivered pursuant to this Section 10). Any Person from
time to time may change its Registered Address, facsimile number or other
information for the purpose of notices to that Person by giving notice in
accordance with this Section 10 specifying such change to each of the other
parties executing this Agreement.
SECTION 11. DEEMED ACCEPTANCE BY INVESTORS; ASSIGNMENT
Each Investor shall be deemed, by accepting the shares of Common
Stock acquired by such Investor pursuant to the Plan, to agree to the terms of
this Agreement as it may be in effect from time to time, including any
amendments, supplements or waivers duly adopted in accordance with Section 5
hereof.
20
This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties and their respective Successors and permitted
assigns of Registrable Securities. Each Investor may assign any of its rights
hereunder (in whole or in part) to one or more permitted transferees of
Registrable Securities; PROVIDED, HOWEVER, that any such permitted transferees
of Registrable Securities agrees in writing, in form and substance satisfactory
to the Company, to be bound by all of the terms and provisions hereof and to
join this Agreement as a party hereto. Without limiting the foregoing, no such
assignment shall be binding upon or obligate the Company to any such assignee
unless and until (a) the Company has received notice of the assignment as herein
provided, which notice (i) references this Agreement and (ii) sets forth the
Registered Address of any assignee for the purpose of any notices hereunder.
SECTION 12. DESCRIPTIVE HEADINGS; SECTION REFERENCES
The descriptive headings of the several sections and paragraphs
of this Agreement are inserted for convenience of reference only and do not
define or limit the provisions hereof or otherwise affect the meaning hereof.
All references in this Agreement to sections are to sections of this agreement
unless otherwise stated.
SECTION 13. SPECIFIC PERFORMANCE
The parties agree that, to the extent permitted by law, (i) the
obligations imposed on them in this Agreement are special, unique and of an
extraordinary character, and that in the event of a breach by any such party
damages would not be an adequate remedy; and (ii) each of the other parties
shall be entitled to specific performance and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled at law or in
equity.
SECTION 14. GOVERNING LAW
This agreement shall be governed by and construed in accordance
with the laws of the state of Delaware without reference to the conflicts of law
principles thereof.
Section 15. ATTORNEYS' FEES
In any action or proceeding brought to enforce any provision of
this Agreement or where any provision hereof is validly asserted as a defense,
the successful party shall, to the extent permitted by applicable law, be
entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
SECTION 16. TERMINATION OF CERTAIN RIGHTS
The rights and obligations hereunder of each Investor will
terminate with respect to such party at such time when neither it nor any of its
respective Affiliates holds Registrable Securities, PROVIDED that the provisions
of Section 2.3 hereof, the rights of any party hereto with respect to the breach
of any provision hereof, and any obligation accrued as of the date of
termination (including any obligation accrued under Section 2.6 hereof) shall
survive termination of this Agreement.
SECTION 17. NO INCONSISTENT AGREEMENTS
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The Company will not hereafter enter into, modify, amend or waive
any agreement with respect to its securities if such agreement, modification,
amendment or waiver would conflict with the rights granted pursuant to this
Agreement to the Holders of Registrable Securities.
SECTION 18. REQUISITE HOLDERS
Each of the parties hereto agrees that the Company may, in
connection with the taking of any action permitted to be taken hereunder with
the consent or approval of the Requisite Holders of the Registrable Securities,
rely in good faith on a certificate from any such holder or holders stating that
it holds or is acting on behalf of a majority in interest of the Registrable
Securities.
SECTION 19. COMPLETION OF SCHEDULE 1
The Company covenants and agrees to duly prepare and complete
Schedule 1 as soon as practicable following the Combined Company Rights
Expiration Date (as defined in the Plan) such that Schedule 1 lists all Persons
that acquire Common Stock pursuant to the Plan, including Persons that acquire
Common Stock pursuant to the exercise of Combined Company Rights (as defined in
the Plan).
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
XXXXXXXX XXXXXXX CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
SCHEDULES
THE REGISTRANT AGREES TO PROVIDE THE SECURITIES AND EXCHANGE COMMISSION,
UPON REQUEST, WITH COPIES OF THE SCHEDULES HERETO.
