EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
March 28, 2002, is by and among Xxxx Xxxxxxx Corporation, a Maryland corporation
(the "Company"), and each of the parties listed on Annex A (the "Stockholders").
Whereas, the Stockholders have requested, and the Company has
agreed to provide, registration rights with respect to the Registrable
Securities (as hereinafter defined), as set forth in this Agreement.
Now, therefore, for and in consideration of the mutual
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Affiliate" shall mean, when used with respect to a specified
Person, any Person which (a) directly or indirectly controls, is controlled by
or is under common control with such specified Person, (b) is an officer,
director, partner, trustee or manager of such Person, or of a Person described
in clause (a) of this sentence, or (c) is a Relative of such specified Person or
of an individual described in clauses (a) or (b) of this sentence. As used in
this definition, the term "control" means possession, directly or indirectly
(through one or more intermediaries), of the power to direct or cause the
direction of management and policies of a Person through an ownership of at
least a majority of the outstanding voting interests of such Person, or through
the power to appoint, elect or direct the vote of, a majority of the members of
the governing body of such Person whether by contract, voting trust or other
agreement. "Relative" shall mean, with respect to any individual, (i) such
individual's spouse, (ii) any direct descendent, parent, grandparent, great
grandparent or sibling (in each case, whether by blood or adoption) of such
individual or such individual's spouse, and (iii) any spouse of a person
described in clause (ii) of this sentence.
"Approved Appraiser" shall mean a nationally recognized
investment banking firm, accounting firm or valuation firm mutually acceptable
to the Company and the holders of a majority of the outstanding shares of Series
B Preferred Stock.
"Common Stock" shall mean shares of the Company's Common
Stock, par value $0.001 per share.
"Conversion Ratio" shall have the meaning set forth in the
Articles Supplementary establishing the Series B Preferred Stock.
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"Current Market Price" at any date shall mean, in the event
the Common Stock is traded in the over the counter market or on a national or
regional securities exchange, the average of the daily closing prices per share
of Common Stock for thirty (30) consecutive trading days ending three trading
days before such date (as adjusted for any stock dividend, split, combination or
reclassification that took effect during such 30 trading day period). The
closing price for each day shall be the last reported sale price regular way or,
in case no such reported sale takes place on such day, the average of the last
closing bid and asked prices regular way, in either case on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading, or if not listed or admitted to trading on any national securities
exchange, the closing sale price for such day reported by Nasdaq, if the Common
Stock is traded over-the-counter and quoted in the National Market System, or if
the Common Stock is so traded, but not so quoted, the average of the closing
reported bid and asked prices of the Common Stock as reported by Nasdaq or any
comparable system, or, if the Common Stock is not listed on Nasdaq or any
comparable system, the average of the closing bid and asked prices as furnished
by two members of the National Association of Securities Dealers, Inc. selected
from time to time by the Corporation for that purpose. If the Common Stock is
not publicly traded or is not traded in such manner that the quotations referred
to above are available for the period required hereunder, Current Market Price
per share of Common Stock shall be deemed to be the fair value per share of
Common Stock as determined in good faith by the Board of Directors; provided,
however, that if a majority of the Board, including a majority of the Investor
Nominees, is unable to reach a decision on the Current Market Price, the Current
Market Price shall be determined by an Approved Appraiser.
"Demand Notice" shall have the meaning set forth in Section 3
hereof.
"Demand Registration" shall have the meaning set forth in
Section 3 hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the SEC promulgated thereunder.
"Initial Public Offering" shall mean the registered public
offering of equity securities of the Company pursuant to a registration
statement that has been declared effective under the Securities Act.
"Losses" shall have the meaning set forth in Section 8 hereof.
"Person" shall mean an individual, partnership, corporation,
limited partnership, limited liability company, foreign limited liability
company, trust, estate, corporation, custodian, trustee-executor, administrator,
nominee or entity in a representative capacity.
"Piggyback Notice" shall have the meaning set forth in Section
4 hereof.
"Piggyback Registration" shall have the meaning as set forth
in Section 4 hereof.
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"Proceeding" shall mean an action, claim, suit, arbitration or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective Registration Statement in reliance upon Rule 430A promulgated under
the Securities Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Qualified Holder" shall have the meaning set forth in Section
3(a) hereof.
"Qualified Public Offering" shall mean any firm commitment
underwritten offering by the Corporation of shares of Common Stock to the public
pursuant to an effective registration statement under the Securities Act of
1933, then in effect, or any comparable statement under any similar federal
statutes then in force (i) for which the aggregate gross proceeds to be received
by the Company from such offering (without deducting underwriting discounts,
expenses, and commissions) are at least fifty million dollars ($50,000,000),
(ii) in which each share of Series B Preferred converts pursuant to Paragraph 5
of the Articles Supplementary for the Series B Preferred Stock into shares of
Common Stock that have an aggregate value, based on the price paid by the public
in such offering, of at least $7.50, and (iii) pursuant to which the Common
Stock is listed for trading on the New York Stock Exchange or is quoted for
trading on the Nasdaq National Market system.
"Registrable Securities" shall mean the shares of Common Stock
issued and issuable upon conversion of outstanding shares of Series B Preferred
Stock of the Company held by the Stockholders (including any shares of Common
Stock issued or distributed by way of dividend, stock split or other
distribution in respect of such shares). As to any particular Registrable
Securities, once issued such securities shall cease to be Registrable Securities
when (i) they are sold pursuant to an effective Registration Statement under the
Securities Act, (ii) they are sold pursuant to Rule 144 (or any similar
provision then in force under the Securities Act), (iii) they shall have ceased
to be outstanding, (iv) they have been sold in a private transaction in which
the transferor's rights under this agreement are not assigned to the transferee
of the securities, or (v) they become eligible for resale pursuant to Rule
144(k) (or any similar rule then in effect under the Securities Act). No
Registrable Securities may be registered under more than one Registration
Statement at any one time.
"Registration Statement" shall mean any registration statement
of the Company under the Securities Act which permits the public offering of any
of the Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-
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effective amendments, all exhibits and all material incorporated by reference or
deemed to be incorporated by reference in such registration statement.
"Rule 144" shall mean Rule 144 under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency having jurisdiction under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated by the SEC thereunder.
"Series B Preferred Stock" shall mean shares of the Company's
Series B Convertible Preferred Stock, par value $0.001 per share.
"underwritten registration or underwritten offering" shall
mean a registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
Section 2. Holders of Registrable Securities. A Person is deemed to be
a holder of Registrable Securities whenever such Person owns Registrable
Securities or has a right to acquire such Registrable Securities through its
ownership of the Series B Preferred Stock.
Section 3. Demand Registration.
(a) Requests for Registration. At any time after an Initial
Public Offering, each of the Stockholders who is the holder of more than ten
percent of the Company's then outstanding shares of Common Stock (including the
Series B Preferred Stock, determined as if such shares had been converted to
Common Stock) or shares of Common Stock (including the Series B Preferred Stock,
determined as if such shares had been converted to Common Stock) with an
aggregate value of at least $50,000,000 based on the Current Market Price of the
Common Stock (a "Qualified Holder") shall have the right by delivering a written
notice to the Company (the "Demand Notice") to require the Company to register,
pursuant to the terms of this Agreement under and in accordance with the
provisions of the Securities Act, the number of Registrable Securities requested
to be so registered pursuant to the terms of this Agreement (a "Demand
Registration"). In addition, at any time, the Stockholders holding at least 60
percent of the Registrable Securities shall have the right to deliver a Demand
Notice and to require the Company to undertake a Demand Registration, and each
of those Stockholders shall be considered Qualified Holders for purposes of this
Agreement. Following receipt of a Demand Notice for a Demand Registration, the
Company shall use its reasonable best efforts to file a Registration Statement
and cause such securities to be registered under the Securities Act promptly,
but not later than 90 days after such Demand Notice.
Until such time as the Company shall become eligible to use
Form S-3 for the registration under the Securities Act of any of its securities,
each Qualified
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Holder shall be entitled to a maximum of two Demand Registrations. After such
time as the Company shall become eligible to use Form S-3 for the registration
under the Securities Act of any of its securities, each Qualified Holder shall
be entitled to a maximum of five Demand Registrations, less the total number of
Demand Registrations utilized by such holder prior to such date. Notwithstanding
any other provisions of this Section 3, in no event shall more than one Demand
Registration occur during any six-month period (measured from the effective date
of the Registration Statement to the date of the next Demand Notice) or within
120 days after the effective date of a Registration Statement filed by the
Company; provided that no Demand Registration may be prohibited for such 120-day
period more often than once in a 12-month period.
No Demand Registration shall be deemed to have occurred for
purposes of this Section 3(a) if the Registration Statement relating thereto
does not become effective or is not maintained effective for the period required
pursuant to this Section 3(a), in which case such requesting holder of
Registrable Securities shall be entitled to an additional Demand Registration in
lieu thereof.
Within ten (10) days after receipt by the Company of a Demand
Notice, the Company shall give written notice (the "Notice") of such Demand
Notice to all other holders of Registrable Securities and shall, subject to the
provisions of Section 3(b) hereof, include in such registration all Registrable
Securities with respect to which the Company received written requests for
inclusion therein within ten (10) days after such Notice is given by the Company
to such holders.
All requests made pursuant to this Section 3 will specify the
amount of Registrable Securities to be registered and the intended methods of
disposition thereof.
The Company shall be required to maintain the effectiveness of
the Registration Statement with respect to any Demand Registration for a period
of at least 180 days after the effective date thereof or such shorter period in
which all Registrable Securities included in such Registration Statement have
actually been sold; provided, however, that such 180-day period shall be
extended for a period of time equal to the period the holder of Registrable
Securities refrains from selling any securities included in such registration at
the request of an underwriter of the Company or the Company pursuant to this
Agreement.
Notwithstanding the foregoing paragraph, if holders of a
majority of the then outstanding Registrable Securities requested to be included
in such registration pursuant to Section 3(a) request that such Demand
Registration be a "shelf" registration pursuant to Rule 415 under the Securities
Act to permit distribution to, and resale by, the partners of a holder of
Registrable Securities (a "Partner Distribution"), and the Company is then
eligible to make such a filing, the Company shall file such Demand Registration
under Rule 415 and shall keep the Registration Statement filed in respect
thereof effective for a period which shall terminate on the earlier of (i) 180
days from the date on which the SEC declares such Registration Statement
effective and (ii) the date on which all Registrable Securities covered by such
Registration Statement have been sold
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pursuant to such Registration Statement; provided, however, that such 180-day
period shall be extended for a period of time equal to the period the holder of
Registrable Securities refrains from selling any securities included in such
registration at the request of an underwriter of the Company or the Company
pursuant to this Agreement.
Notwithstanding anything contained herein to the contrary, the
Company hereby agrees that (i) any Demand Registration that is a "shelf"
registration pursuant to Rule 415 under the Securities Act shall contain all
language (including, without limitation, on the prospectus cover sheet, the
principal stockholders' chart and the plan of distribution) as may be requested
by a holder of Registrable Securities to allow for a Partner Distribution and
(ii) the Company shall, at the request of any holder of Registrable Securities
seeking to effect a Partner Distribution, file any prospectus supplement or
post-effective amendments and to otherwise take any action necessary to include
such language, if such language was not included in the initial Registration
Statement, or revise such language if deemed reasonably necessary by such holder
to effect such Partner Distribution
(b) Priority on Demand Registration. If any of the Registrable
Securities registered pursuant to a Demand Registration are to be sold in a firm
commitment underwritten offering, and the managing underwriter or underwriters
advise the holders of such securities in writing that in its view the total
number or dollar amount of Registrable Securities proposed to be sold in such
offering is such as to adversely affect the success of such offering (including,
without limitation, securities proposed to be included by other holders of
securities entitled to include securities in such Registration Statement
pursuant to incidental or piggyback registration rights), then there shall be
included in such firm commitment underwritten offering the number or dollar
amount of Registrable Securities that in the opinion of such managing
underwriter can be sold without adversely affecting such offering, and such
Registrable Securities shall be allocated pro rata among the holders of
Registrable Securities requesting such registration on the basis of the
percentage of the Registrable Securities of the Company requested to be included
in such Registration Statement by the holders of Registrable Securities that
have requested that such securities be included in the registration. In
connection with any Demand Registration to which the provisions of this
subsection (b) apply, no securities other than Registrable Securities shall be
covered by such Demand Registration except as provided in subsection (d)(ii)
hereof, and such registration shall not reduce the number of available
registrations under this Section 3 in the event that the Registration Statement
excludes more than 50% of the aggregate number of Registrable Securities that
holders requested be included.
(c) Postponement of Demand Registration. The Company shall be
entitled to postpone (but not more than once in any twelve month period), for a
reasonable period of time not in excess of 90 days, the filing of a Registration
Statement if the Company delivers to the holders requesting registration a
certificate signed by both the President and Chief Financial Officer of the
Company stating that, in the good faith judgment of the Board of Directors of
the Company, such registration and offering could adversely affect or interfere
with any bona fide material financing of the Company or any material transaction
under consideration by the Company or would require disclosure of
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information that has not been disclosed to the public, the premature disclosure
of which would adversely affect the Company. Such certificate shall contain a
general statement of the reasons for such postponement and an approximation of
the anticipated delay. If the Company shall so postpone the filing of a
Registration Statement, the holder who made the Demand Registration shall have
the right to withdraw the request for registration by giving written notice to
the Company within 20 days of the anticipated termination date of the
postponement period, as provided in the certificate delivered to the holders,
and in the event of such withdrawal, such request shall not be counted for
purposes of the number of Demand Registrations to which such holder is entitled
pursuant to the terms of this Agreement.
(d) Registration of Other Securities. Whenever the Company
shall effect a Demand Registration pursuant to this Section 3 in connection with
an underwritten offering by one or more holders of Registrable Securities, no
securities other than Registrable Securities shall be included among the
securities covered by such Demand Registration unless (i) the managing
underwriter of such offering shall have advised each holder of Registrable
Securities requesting such registration in writing that it believes that the
inclusion of such other securities would not adversely affect such offering or
(ii) the inclusion of such other securities is approved by the affirmative vote
of the holders of at least a majority of the Registrable Securities to be
included in such Demand Registration.
Section 4. Piggyback Registration.
(a) Right to Piggyback. If, at any time after a Qualified
Public Offering, the Company proposes to file a registration statement under the
Securities Act with respect to an offering of Common Stock (other than a
registration statement (i) on Form X-0, Xxxx X-0 or any successor forms thereto
or (ii) filed solely in connection with an exchange offer or any employee
benefit or dividend reinvestment plan), whether or not for its own account,
then, each such time, the Company shall give prompt written notice of such
proposed filing at least thirty (30) days before the anticipated filing date
(the "Piggyback Notice") to all of the holders of Registrable Securities. The
Piggyback Notice shall offer such holders the opportunity to include in such
registration statement the number of Registrable Securities as each such holder
may request (a "Piggyback Registration"). Subject to Section 4(b) hereof, the
Company shall include in each such Piggyback Registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within ten (10) days after notice has been given to the
applicable holder. The eligible holders of Registrable Securities shall be
permitted to withdraw all or part of the Registrable Securities from a Piggyback
Registration at any time prior to the effective date of such Piggyback
Registration. The Company shall not be required to maintain the effectiveness of
the Registration Statement for a Piggyback Registration beyond the earlier to
occur of (i) 120 days after the effective date thereof and (ii) consummation of
the distribution by the holders of the Registrable Securities included in such
Registration Statement.
(b) Priority on Piggyback Registrations. The Company shall use
reasonable efforts to cause the managing underwriter or underwriters of a
proposed
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underwritten offering to permit holders of Registrable Securities requested to
be included in the registration for such offering to include all such
Registrable Securities on the same terms and conditions as any other shares of
capital stock, if any, of the Company included therein. Notwithstanding the
foregoing, if the managing underwriter or underwriters of such underwritten
offering have informed the Company in writing that it is their good faith
opinion that the total amount of securities that such holders, the Company and
any other Persons having rights to participate in such registration, intend to
include in such offering is such as to adversely affect the success of such
offering, then the amount of securities to be offered (i) for the account of
holders of Registrable Securities and (ii) for the account of all such other
Persons (other than the Company) shall be reduced or limited pro rata among the
holders of Registrable Securities and such other Persons requesting such
registration on the basis of the percentage of the Registrable Securities or
other securities of the Company requested to be included in such Registration
Statement by such holders that have requested that such securities be included
in the registration to the extent necessary to reduce the total amount of
securities to be included in such offering to the amount recommended by such
managing underwriter or underwriters.
Notwithstanding anything contained herein to the contrary, the
Company hereby agrees that (i) any Piggyback Registration that is a "shelf"
registration pursuant to Rule 415 under the Securities Act shall contain all
language (including, without limitation, on the prospectus cover sheet, the
principal stockholders' chart and the plan of distribution) as may be requested
by a holder of Registrable Securities to allow for a Partner Distribution and
(ii) the Company shall, at the request of any holder of Registrable Securities
seeking to effect a Partner Distribution, file any prospectus supplement or
post-effective amendments and to otherwise take any action necessary to include
such language, if such language was not included in the initial Registration
Statement, or revise such language if deemed reasonably necessary by such holder
to effect such Partner Distribution.
Section 5. Restrictions on Public Sale by Holders of Registrable
Securities. Each holder of Registrable Securities agrees, in connection with the
Initial Public Offering and in connection with any underwritten registration of
Registrable Securities filed pursuant to Section 3 or Section 4 hereof, if
requested (pursuant to a written notice) by the managing underwriter or
underwriters in an underwritten offering, not to effect any public sale or
distribution of any of the Company's securities (except as part of such
underwritten offering), including a sale pursuant to Rule 144, during the period
commencing on the date of the request and continuing for not more than 180 days
(with respect to the Initial Public Offering) or 120 days (with respect to any
underwritten public offering other than the Initial Public Offering) after the
effective date of the Registration Statement pursuant to which such public
offering shall be made or such lesser period as is required by the managing
underwriter, provided, however, that all officers and directors of the Company
must be subject to similar restrictions.
The foregoing provisions shall not apply to any holder of
Registrable Securities if such holder is prevented by applicable statute or
regulation from entering into any such agreement; provided, however, that any
such holder shall undertake in its request to participate in any such
underwritten offering, not to effect any public sale or
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distribution of the class of securities covered by such Registration Statement
(except as part of such underwritten offering) during such period unless it has
provided forty-five (45) days' prior written notice of such sale or distribution
to the managing underwriter or underwriters.
Section 6. Registration Procedures. If and whenever the Company is
required to use its reasonable best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Section 3 and
Section 4 hereof, the Company shall effect such registration to permit the sale
of such Registrable Securities in accordance with the intended method or methods
of disposition thereof, and pursuant thereto the Company shall cooperate in the
sale of the securities and shall, as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on such form which shall be available for the sale of
the Registrable Securities by the holders thereof in accordance with the
intended method or methods of distribution thereof (including, without
limitation, a Partner Distribution), and use its reasonable best efforts to
cause such Registration Statement to become effective and to remain effective as
provided herein; provided, however, that before filing a Registration Statement
or Prospectus or any amendments or supplements thereto (including documents that
would be incorporated or deemed to be incorporated therein by reference), the
Company shall furnish or otherwise make available to the holders of the
Registrable Securities covered by such Registration Statement, their counsel and
the managing underwriters, if any, copies of all such documents proposed to be
filed. The Company shall not file any such Registration Statement or Prospectus
or any amendments or supplements thereto (including such documents that, upon
filing, would be incorporated or deemed to be incorporated by reference therein)
with respect to a Demand Registration to which the holders of a majority of the
Registrable Securities covered by such Registration Statement, their counsel, or
the managing underwriters, if any, shall reasonably object, in writing, on a
timely basis, unless, in the opinion of the Company, such filing is necessary to
comply with applicable law.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective during the period
provided herein with respect to the disposition of all securities covered by
such Registration Statement; and cause the related Prospectus to be supplemented
by any Prospectus supplement as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of the securities covered
by such Registration Statement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the Securities Act.
(c) Notify each selling holder of Registrable Securities, its
counsel and the managing underwriters, if any, promptly, and (if requested by
any such Person) confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become
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effective, (ii) of any request by the SEC or any other Federal or state
governmental authority for amendments or supplements to a Registration Statement
or related Prospectus or for additional information (provided, that the Company
shall not be required to notify the holders or their counsel of all "comment"
letters received by the Company from the SEC or to deliver copies of such
comment letters or the Company's responses thereto to the holders or their
counsel unless such letters request information from or about the holders),
(iii) of the issuance by the SEC of any stop order suspending the effectiveness
of a Registration Statement or the initiation of any proceedings for that
purpose, (iv) if at any time the representations and warranties of the Company
contained in any agreement (including any underwriting agreement) contemplated
by Section 6(o) below cease to be true and correct, (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction, or the initiation or threatening of any proceeding for such
purpose, and (vi) of the happening of any event that makes any statement made in
such Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in such Registration Statement,
Prospectus or documents so that, in the case of the Registration Statement, it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) Use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement, or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction.
(e) If requested by the managing underwriters, if any, or the
holders of a majority of the holders of the then outstanding Registrable
Securities being sold in connection with an underwritten offering, promptly
include in a Prospectus supplement or post-effective amendment such information
as the managing underwriters, if any, and such holders may reasonably request in
order to permit the intended method of distribution of such securities and make
all required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received such request;
provided, however, that the Company shall not be required to take any actions
under this Section 6(e) that are not, in the opinion of counsel for the Company,
in compliance with applicable law.
(f) Furnish to each selling holder of Registrable Securities,
its counsel and each managing underwriter, if any, without charge, at least one
conformed copy of the Registration Statement, the Prospectus and Prospectus
supplements, if applicable, and each post-effective amendment thereto, including
financial statements (but excluding schedules, all documents incorporated or
deemed to be incorporated therein by reference, and all exhibits, unless
requested in writing by such holder, counsel or underwriter).
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(g) Deliver to each selling holder of Registrable Securities,
its counsel, and the underwriters, if any, without charge, as many copies of the
Prospectus or Prospectuses (including each form of Prospectus) and each
amendment or supplement thereto as such Persons may reasonably request in
connection with the distribution of the Registrable Securities; and the Company,
subject to the last paragraph of this Section 6, hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of the selling
holders of Registrable Securities and the underwriters, if any, in connection
with the offering and sale of the Registrable Securities covered by such
Prospectus and any such amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities,
use its reasonable best efforts to register or qualify or cooperate with the
selling holders of Registrable Securities, the underwriters, if any, and their
respective counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or "Blue Sky" laws of such
jurisdictions within the United States as any seller or underwriter reasonably
requests in writing and to keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is
required to be kept effective and to take any other action that may be necessary
or advisable to enable such holders of Registrable Securities to consummate the
disposition of such Registrable Securities in such jurisdiction; provided,
however, that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it is not then so qualified or (ii) take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject.
(i) Cooperate with the selling holders of Registrable
Securities and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates (not bearing any legends) representing
Registrable Securities to be sold after receiving written representations from
each holder of such Registrable Securities that the Registrable Securities
represented by the certificates so delivered by such holder will be transferred
in accordance with the Registration Statement, and enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters, if any, or holders may request at least two (2) business
days prior to any sale of Registrable Securities in a firm commitment public
offering, but in any other such sale, within ten (10) business days prior to
having to issue the securities.
(j) Use its reasonable best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities within the United
States, except as may be required solely as a consequence of the nature of such
selling holder's business, in which case the Company will cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals, as may be necessary to enable the seller or sellers
thereof or the underwriters, if any, to consummate the disposition of such
Registrable Securities.
(k) Upon the occurrence of any event contemplated by Section
6(c)(vi) above, prepare a supplement or post-effective amendment to the
Registration
11
Statement or a supplement to the related Prospectus or any document incorporated
or deemed to be incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, such Prospectus will not contain 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, in light of the
circumstances under which they were made, not misleading.
(l) Prior to the effective date of the Registration Statement
relating to the Registrable Securities, provide a CUSIP number for the
Registrable Securities.
(m) 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.
(n) Use its reasonable best efforts to cause all shares of
Registrable Securities covered by such Registration Statement to be authorized
to be quoted on the Nasdaq National Market or listed on a national securities
exchange if shares of the particular class of Registrable Securities are at that
time quoted on the Nasdaq National Market or listed on such exchange, as the
case may be.
(o) Enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in underwritten
offerings) and take all such other actions reasonably requested by the holders
of a majority of the Registrable Securities being sold in connection therewith
(including those reasonably requested by the managing underwriters, if any) to
expedite or facilitate the disposition of such Registrable Securities, and in
such connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration, (i) make such
representations and warranties to the holders of such Registrable Securities and
the underwriters, if any, with respect to the business of the Company and its
subsidiaries, and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, in
form, substance and scope as are customarily made by issuers to underwriters in
underwritten offerings, and, if true, confirm the same if and when requested,
(ii) use its reasonable best efforts to furnish to the selling holders of such
Registrable Securities opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and counsels to the selling
holders of the Registrable Securities), addressed to each selling holder of
Registrable Securities and each of the underwriters, if any, covering the
matters customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by such counsel and
underwriters, (iii) use its reasonable best efforts to obtain "cold comfort"
letters and updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or are required
to be, included in the Registration Statement) who have certified the
12
financial statements included in such Registration Statement, addressed to each
selling holder of Registrable Securities (unless such accountants shall be
prohibited from so addressing such letters by applicable standards of the
accounting profession) and each of the underwriters, if any, such letters to be
in customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings, (iv) if an
underwriting agreement is entered into, the same shall contain indemnification
provisions and procedures substantially to the effect set forth in Section 8
hereof with respect to all parties to be indemnified pursuant to said Section
and (v) deliver such documents and certificates as may be reasonably requested
by the holders of a majority of the Registrable Securities being sold, their
counsel and the managing underwriters, if any, to evidence the continued
validity of the representations and warranties made pursuant to Section 6(o)(i)
above and to evidence compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company. The above
shall be done at each closing under such underwriting or similar agreement, or
as and to the extent required thereunder.
(p) Make available for inspection by a representative of the
selling holders of Registrable Securities, any underwriter participating in any
such disposition of Registrable Securities, if any, and any attorneys or
accountants retained by such selling holders or underwriter, at the offices
where normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the officers, directors and employees of the Company and
its subsidiaries to supply all information in each case reasonably requested by
any such representative, underwriter, attorney or accountant in connection with
such Registration Statement; provided, however, that any information that is not
generally publicly available at the time of delivery of such information shall
be kept confidential by such Persons unless (i) disclosure of such information
is required by court or administrative order, (ii) disclosure of such
information, in the opinion of counsel to such Person, is required by law, or
(iii) such information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by such Person. In the case of a
proposed disclosure pursuant to (i) or (ii) above, such Person shall be required
to give the Company written notice of the proposed disclosure prior to such
disclosure and, if requested by the Company, assist the Company in seeking to
prevent or limit the proposed disclosure. Without limiting the foregoing, no
such information shall be used by such Person as the basis for any market
transactions in securities of the Company or its subsidiaries in violation of
law.
(q) Comply with all applicable rules and regulations of the
SEC and make available to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder, or
any similar rule promulgated under the Securities Act, no later than forty-five
(45) days after the end of any twelve (12) month period (or ninety (90) days
after the end of any twelve (12) month period if such period is a fiscal year)
(i) commencing at the end of any fiscal quarter in which Registrable Securities
are sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering, commencing on
the first day of the first fiscal quarter of the Company after the effective
date of a
13
Registration Statement, which statements shall cover one of said twelve (12)
month periods.
(r) Cause its officers to use their reasonable best efforts to
support the marketing of the Registrable Securities covered by the Registration
Statement (including, without limitation, participation in "road shows") taking
into account the Company's business needs.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company in writing
such information required in connection with such registration regarding such
seller and the distribution of such Registrable Securities as the Company may,
from time to time, reasonably request in writing and the Company may exclude
from such registration the Registrable Securities of any seller who unreasonably
fails to furnish such information within a reasonable time after receiving such
request.
Each holder of Registrable Securities agrees if such holder has
Registrable Securities covered by such Registration Statement that, upon receipt
of any notice from the Company of the happening of any event of the kind
described in Section 6(c)(ii), 6(c)(iii), 6(c)(v) or 6(c)(vi) hereof, such
holder will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus until such holder's receipt
of the copies of the supplemented or amended Prospectus contemplated by Section
6(k) hereof, or until it is advised in writing by the Company that the use of
the applicable Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus; provided, however that the Company
shall extend the time periods under Section 3 with respect to the length of time
that the effectiveness of a Registration Statement must be maintained by the
amount of time the holder is required to discontinue disposition of such
securities.
Section 7. Registration Expenses. All reasonable fees and expenses
incident to the performance of or compliance with this Agreement by the Company
(including, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (A) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (B) of
compliance with securities or Blue Sky laws, including, without limitation, any
fees and disbursements of counsel for the underwriters in connection with Blue
Sky qualifications of the Registrable Securities pursuant to Section 6(h)), (ii)
printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriters, if any, or by the
holders of a majority of the Registrable Securities included in any Registration
Statement), (iii) messenger, telephone and delivery expenses of the Company,
(iv) fees and disbursements of counsel for the Company, (v) expenses of the
Company incurred in connection with any road show, (vi) fees and disbursements
of all independent certified public accountants referred to in Section 6(o)(iii)
hereof (including, without limitation, the expenses of any "cold comfort"
letters required by this Agreement) and any other persons, including special
experts
14
retained by the Company, and (vii) fees and disbursements of one counsel for the
holders of Registrable Securities whose shares are included in a Registration
Statement) shall be borne by the Company whether or not any of the Registration
Statements is filed or becomes effective. In addition, 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, the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities exchange on which
similar securities issued by the Company are then listed and rating agency fees
and the fees and expenses of any Person, including special experts, retained by
the Company.
The Company shall not be required to pay (i) fees and disbursements
of any counsel retained by any holder of Registrable Securities or by any
underwriter (except as set forth in clauses 7(i)(B) and 7(vii)), (ii) any
underwriter's fees (including discounts, commissions or fees of underwriters,
selling brokers, dealer managers or similar securities industry professionals)
relating to the distribution of the Registrable Securities, or (iii) any other
expenses of the holders of Registrable Securities not specifically required to
be paid by the Company pursuant to the first paragraph of this Section 7.
Section 8. Indemnification.
(a) Indemnification by the Company. The Company shall, without
limitation as to time, indemnify and hold harmless, to the fullest extent
permitted by law, each holder of Registrable Securities whose Registrable
Securities are covered by a Registration Statement or Prospectus, the officers,
directors, accountants, agents and employees of each of them, each Person who
controls each such holder (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) and the officers, directors, accountants,
agents and employees of each such controlling person, each underwriter, if any,
and each person who controls (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) such underwriter, from and against any
and all losses, claims, damages, liabilities, costs (including, without
limitation, costs of preparation and reasonable attorneys' fees and any legal or
other fees or expenses incurred by such party in connection with any
investigation or Proceeding), expenses, judgments, fines, penalties, charges and
amounts paid in settlement (collectively, "Losses"), as incurred, arising out of
or based upon any untrue statement (or alleged untrue statement) of a material
fact contained in any prospectus, offering circular, or other document
(including any related registration statement, notification, or the like)
incident to any such registration, qualification, or compliance, or based on 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, or
any violation by the Company of the Securities Act or any rule or regulation
thereunder applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration, qualification, or
compliance, and will reimburse each such holder, each of its officers,
directors, partners, legal counsel, and accountants and each person controlling
such holder, each such underwriter, and each person who controls any such
underwriter, for any legal and any other expenses reasonably incurred in
connection with
15
investigating and defending or settling any such claim, loss, damage, liability,
or action, provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability, or expense arises out of or
is based on any untrue statement or omission by such holder or underwriter, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular, or other document in reliance upon and in
conformity with written information furnished to the Company by such holder. It
is agreed that the indemnity agreement contained in this Section 8(a) shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability,
or action if such settlement is effected without the consent of the Company
(which consent shall not be unreasonably withheld).
(b) Indemnification by Holder of Registrable Securities. In
connection with any Registration Statement in which a holder of Registrable
Securities is participating, such holder of Registrable Securities shall furnish
to the Company in writing such information as the Company reasonably requests
for use in connection with any Registration Statement or Prospectus and agrees
to indemnify, to the fullest extent permitted by law, severally and not jointly,
the Company, its directors, officers, accountants, agents and employees, each
Person who controls the Company (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act), and the directors, officers,
agents or employees of such controlling persons, and each underwriter, if any,
and each person who controls such underwriter (within the meaning of Section 15
of the Securities Act and Section 20 of the Exchange Act), from and against all
Losses arising out of or based on any untrue statement of a material fact
contained in any such registration statement, prospectus, offering circular, or
other document, or any omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse the Company and such directors, officers, partners, legal
counsel, and accountants, persons, underwriters, or control persons for any
legal or any other expenses reasonably incurred in connection with investigating
or defending any such claim, loss, damage, liability, or action, in each case to
the extent, but only to the extent, that such untrue statement or omission is
made in such registration statement, prospectus, offering circular, or other
document in reliance upon and in conformity with written information furnished
to the Company by such holder specifically for use in connection with the
preparation of such registration statement, prospectus, offering circular or
other document provided, however, that the obligations of such holder hereunder
shall not apply to amounts paid in settlement of any such claims, losses,
damages, or liabilities (or actions in respect thereof) if such settlement is
effected without the consent of such holder (which consent shall not be
unreasonably withheld); and provided, further, that the liability of each
selling holder of Registrable Securities hereunder shall be limited to the net
proceeds received by such selling holder from the sale of Registrable Securities
covered by such Registration Statement. In addition, insofar as the foregoing
indemnity relates to any such untrue statement or omission made in the
preliminary prospectus but eliminated or remedied in the amended prospectus on
file with the SEC at the time the registration statement becomes effective or in
the final prospectus filed pursuant to applicable rules of the SEC or in any
supplement or addendum thereto and such new prospectus is delivered to the
underwriter, the indemnity agreement herein shall not inure to the benefit of
such
16
underwriter, any controlling person of such underwriter and their respective
Representatives, if a copy of the final prospectus filed pursuant to such rules,
together with all supplements and addenda thereto was not furnished to the
person or entity asserting the loss, liability, claim or damage at or prior to
the time such furnishing is required by the Securities Act.
(c) Conduct of Indemnification Proceedings. If any Person
shall be entitled to indemnity hereunder (an "indemnified party"), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the "indemnifying party") of any claim or of the
commencement of any Proceeding with respect to which such indemnified party
seeks indemnification or contribution pursuant hereto; provided, however, that
the delay or failure to so notify the indemnifying party shall not relieve the
indemnifying party from any obligation or liability except to the extent that
the indemnifying party has been prejudiced by such delay or failure. The
indemnifying party shall have the right, exercisable by giving written notice to
an indemnified party promptly after the receipt of written notice from such
indemnified party of such claim or Proceeding, to, unless in the indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, assume, at the
indemnifying party's expense, the defense of any such claim or Proceeding, with
counsel reasonably satisfactory to such indemnified party; provided, however,
that an indemnified party shall have the right to employ separate counsel in any
such claim or Proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the indemnifying party agrees to pay such fees and expenses; or (ii)
the indemnifying party fails promptly to assume the defense of such claim or
Proceeding or fails to employ counsel reasonably satisfactory to such
indemnified party; in which case the indemnified party shall have the right to
employ counsel and to assume the defense of such claim or proceeding; provided,
however, that the indemnifying party shall not, in connection with any one such
claim or Proceeding or separate but substantially similar or related claims or
Proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one firm of attorneys (together with appropriate local counsel) at any time for
all of the indemnified parties, or for fees and expenses that are not
reasonable. Whether or not such defense is assumed by the indemnifying party,
such indemnified party will not be subject to any liability for any settlement
made without its consent (but such consent will not be unreasonably withheld).
The indemnifying party shall not consent to entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release, in form and
substance reasonably satisfactory to the indemnified party, from all liability
in respect of such claim or litigation for which such indemnified party would be
entitled to indemnification hereunder.
(d) Contribution. If the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of any Losses (other
than in accordance with its terms), then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such Losses, in such
proportion as is appropriate to
17
reflect the relative fault of the indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the actions, statements
or omissions that resulted in such Losses as well as any other relevant
equitable considerations. The relative fault of such indemnifying party, on the
one hand, and indemnified party, on the other hand, shall be determined by
reference to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact, has been taken by, or relates to information
supplied by, such indemnifying party or indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent any such action, statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), an indemnifying party that
is a selling holder of Registrable Securities shall not be required to
contribute any amount in excess of the amount by which the net proceeds from the
sale of the Registrable Securities sold by such indemnifying party exceeds the
amount of any damages that such indemnifying party has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
Section 9. Rule 144. The Company shall file the reports required to be
filed by it under the Securities Act and the Exchange Act, and will take such
further action as any holder of Registrable Securities may reasonably request,
all to the extent required from time to time to enable such holder to sell
Registrable Securities without registration under the Securities Act within the
limitations of the exemption provided by Rule 144. Upon the request of any
holder of Registrable Securities, the Company shall deliver to such holder a
written statement as to whether it has complied with such requirements.
Section 10. Underwritten Registrations. If any Demand Registration is an
underwritten offering, the Company shall have the right to select the investment
banker or investment bankers and managers to administer the offering, subject to
approval by the holders of a majority of the Registrable Securities covered by
such Demand Registration, not to be unreasonably withheld. The Company shall
have the right to select the investment banker or investment bankers and
managers to administer any Piggyback Registration.
No Person may participate in any underwritten registration hereunder
unless such Person (i) agrees to sell the Registrable Securities it desires to
have covered
18
by the Demand Registration on the basis provided in any underwriting
arrangements in customary form and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements,
provided that such Person shall not be required to make any representations or
warranties other than those related to title and ownership of shares and as to
the accuracy and completeness of statements made in a registration statement,
prospectus, offering circular, or other document in reliance upon and in
conformity with written information furnished to the Company or the managing
underwriter by such Person.
Section 11. Limitation on Subsequent Registration Rights. From and after
the date of this Agreement, the Company shall not, without the prior written
consent of the holders of at least sixty percent (60%) of the then outstanding
Registrable Securities, enter into any agreement with any holder or prospective
holder of any securities of the Company giving such holder or prospective holder
any registration rights the terms of which are equivalent to or more favorable
than the registration rights granted to holders of Registrable Securities
hereunder, or which would reduce the amount of Registrable Securities the
holders can include in any registration filed pursuant to Section 3 hereof,
unless such rights are subordinate to those of the holders of Registrable
Securities.
Section 12. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of holders
of at least a majority of the Registrable Securities; provided, however, that in
no event shall the obligations of any holder of Registrable Securities be
materially increased or the rights of any Investor be adversely affected
(without similarly adversely affecting the rights of all Investors), except upon
the written consent of such holder. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of holders of Registrable Securities whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other holders of Registrable
Securities may be given by holders of at least a majority of the Registrable
Securities being sold by such holders pursuant to such Registration Statement.
(b) Notices. All notices required to be given hereunder shall
be in writing and shall be deemed to be duly given if personally delivered,
telecopied and confirmed, or mailed by certified mail, return receipt requested,
or overnight delivery service with proof of receipt maintained, at the following
address (or any other address that any such party may designate by written
notice to the other parties):
19
If to the Company:
Xxxx Xxxxxxx Corporation
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
If to any Stockholder, at his address as set forth on Exhibit A of
this Agreement. Any such notice shall, if delivered personally, be deemed
received upon delivery; shall, if delivered by telecopy, be deemed received on
the first business day following confirmation; shall, if delivered by overnight
delivery service, be deemed received the first business day after being sent;
and shall, if delivered by mail, be deemed received upon the earlier of actual
receipt thereof or five business days after the date of deposit in the United
States mail.
(c) Successors and Assigns. This Agreement shall inure to the
benefit of the limited partners of a Stockholder who have received shares of
Registrable Securities from a Stockholder pursuant to a Partner Distribution and
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties, including without limitation and without the need for an
express assignment, subsequent holders of Registrable Securities.
(d) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(e) Headings. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
(f) Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the State of New York (without giving
effect to the choice of law principles thereof).
(g) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(h) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement, and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the
20
subject matter contained herein. There are no restrictions, promises, warranties
or undertakings, other than those set forth or referred to herein, with respect
to the registration rights granted by the Company with respect to Registrable
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
(i) Securities Held by the Company or its Affiliates. Whenever
the consent or approval of holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
its subsidiaries shall not be counted in determining whether such consent or
approval was given by the holders of such required percentage.
(j) Termination. This Agreement shall terminate when no
Registrable Securities remain outstanding; provided that Sections 7 and 8 shall
survive any termination hereof.
(k) Specific Performance. The parties hereto recognize and
agree that money damages may be insufficient to compensate the holders of any
Registrable Securities for breaches by the Company of the terms hereof and,
consequently, that the equitable remedy of specific performance of the terms
hereof will be available in the event of any such breach.
21
IN WITNESS WHEREOF, the parties hereto have caused this
Registration Rights Agreement to be duly executed as of the date first above
written.
XXXX XXXXXXX CORPORATION
By: /s/ J. Xxxxx Xxxxxx
-----------------------------
Name: J. Xxxxx Xxxxxx
Title: Chief Operating Officer
Signature Page to Registration Rights Agreement
COLORADO PUBLIC EMPLOYEE
RETIREMENT ASSOCIATION
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Xxxxxx Xxxxxxxx
Deputy Executive Director of
Investments
Signature Page to Registration Rights Agreement
GS CAPITAL PARTNERS 2000, L.P.
BY: GS Advisors 2000, L.L.C.,
its General Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
GSCP 2000 OFFSHORE BBOG HOLDING, L.P.
BY: GS Capital Partners 2000 Offshore, L.P.,
its General Partner
BY: GS Advisors 2000, L.L.C.,
its General Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
GSCP 2000 GMBH BBOG HOLDING, L.P.
BY: GSCP 2000 GmbH BBOG Holding I,
its General Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P.
BY: GS Employee Funds 2000 GP, L.L.C.,
its General Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Signature Page to Registration Rights Agreement
STONE STREET FUND 2000, L.P.
BY: Stone Street 2000, L.L.C.,
its General Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
STONE STREET BBOG HOLDING
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXXX XXXXX DIRECT INVESTMENT FUND 2000, L.P.
BY: GS Employee Funds 2000 GP, L.L.C.,
its General Partner
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Signature Page to Registration Rights Agreement
X.X. XXXXXX PARTNERS (BHCA), L.P.
BY: JPMP MASTER FUND MANAGER, L.P.,
ITS GENERAL PARTNER
BY: JPMP CAPITAL CORP.,
ITS GENERAL PARTNER
By: /s/ Xxxxxxxxxxx Xxxxxxx
-----------------------------------------
Xxxxxxxxxxx Xxxxxxx
Managing Director
Signature Page to Registration Rights Agreement
PALANTIR PARTNERS LP
BY: PALANTIR ASSOCIATES LLC
its General Partner
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Xxxxxx
President
THE DOSHAY FAMILY TRUST OF 1999
By: /s/ Xxxxx Xxxxxx
-----------------------------------------
Xxxxx Xxxxxx
Trustee
Signature Page to Registration Rights Agreement
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Xxxx Xxxxxxx
Vice President - Common Stocks
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Xxxx Xxxxxxxx
Assistant Secretary
Signature Page to Registration Rights Agreement
WARBURG PINCUS PRIVATE EQUITY VIII, L.P.
BY: WARBURG PINCUS & CO.,
AS GENERAL PARTNER
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx, Partner
Signature Page to Registration Rights Agreement
Annex A
Stockholders
Colorado Public Employee Retirement Association
0000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Xxxxxxx Sachs Direct Investment Fund 2000, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
GS Capital Partners 2000, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
GSCP 2000 Offshore BBOG Holding, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
GSCP 2000 GmbH Holding, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
GS Capital Partners 2000 Employee Fund, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
X.X. Xxxxxx Partners (BHCA), L.P.
1221 Avenue of the Xxxxxxxx
Xxxxx 00
Xxx Xxxx, XX 00000
Palantir Partners LP
c/o Xxx Xxxxxxxx
Palantir Capital Inc.
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 10022
State Farm Mutual Automobile Insurance Company
Xxx Xxxxx Xxxx Xxxxx, X-0
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Xxxxx Xxxxxx Xxxx 0000, X.X.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
Stone Street BBOG Holding
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxx
The Xxxxxx Family Trust of 1999
c/o Xxx Xxxxxxxx
Palantir Capital Inc.
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
