Exhibit 10.12
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
XXXXXX INTERNATIONAL, INC.
AND
THE PARTIES SPECIFIED ON
THE SIGNATURE PAGES HEREOF
DATED AS OF AUGUST 31, 2004
XXXXXX INTERNATIONAL, INC.
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated as of 31, 2004 is made and
entered into by and among Xxxxxx International, Inc., a Delaware corporation
(together with its successors and assigns, the "COMPANY") and the initial
holders of the common stock (the "HOLDERS") specified on the signature pages
hereof.
WHEREAS, on March 29, 2004, Xxxxxx International, Inc. and certain of
its subsidiaries and affiliates (the "DEBTORS"), filed a voluntary petition for
reorganization under Chapter 11 of title 11 of the U.S. Code, 11 U.S.C. Sections
101 - 1330 (as amended, the "BANKRUPTCY CODE"), with the United States
Bankruptcy Court for the Southern District of Indiana, Indianapolis Division
(the "BANKRUPTCY COURT"), commencing Chapter 11 Case Nos. 04-05364 through
04-05367 (the "BANKRUPTCY CASE");
WHEREAS, on May 26, 2004, the Debtors also filed that certain Plan of
Reorganization (as amended and supplemented from time to time, the "PLAN") with
the Bankruptcy Court in the Bankruptcy Case;
WHEREAS, the Bankruptcy Court confirmed the Plan pursuant to the order
under section 1129 of the Bankruptcy Code, dated August 31, 2004 (the
"CONFIRMATION ORDER"); and
WHEREAS, pursuant to the Plan and the Confirmation Order, the Holders
have received shares of common stock of the Company (the "SHARES") and the
Company is obligated to provide the Holders with certain registration rights
with respect to such Shares.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. SHELF REGISTRATION.
(a) FILING OF SHELF REGISTRATION
(i) (x) Subject to clause (y) below, the Company shall
comply with all the provisions of Sections 3(a) to 3(j) and shall use its
reasonable best efforts to file with the Commission within 100 days of the
Effective Date, and thereafter shall use its reasonable best efforts to
cause to be declared effective within 180 days after the Effective Date, a
Shelf Registration Statement, covering all of the Registrable Securities,
and relating to the offer and sale of the Registrable Securities, by the
holders of the Registrable Securities from time to time in accordance with
the methods of distribution set forth in the Shelf Registration Statement.
(y) Following delivery of notice to all holders of
Registrable Securities, the Company may postpone for up to 90 days the
filing or effectiveness of the Shelf Registration Statement if in the good
faith judgment of the Company, the filing or effectiveness of the Shelf
Registration Statement (A) would reasonably be expected to have a material
adverse effect on any proposed financing, reorganization or
recapitalization of the Company or pending negotiations relating to a
merger, consolidation, acquisition or similar transaction or (B) applicable
securities laws would require the Company to disclose material non-public
information ("NON-PUBLIC INFORMATION") and the disclosure of such
Non-Public Information would materially and adversely affect the business
and operations of the Company; provided, however, that immediately
following such postponement, the Company shall file or request
effectiveness of the Shelf Registration Statement.
(ii) (x) Subject to clause (y) below, the Company shall
use its reasonable best efforts to keep the Shelf Registration Statement
continuously effective in order to permit any prospectus forming part
thereof to be used by the holders of the Registrable Securities covered
thereby for a period ending on the earlier of (A) the first date on which
all the Registrable Securities covered by such Shelf Registration Statement
have been sold pursuant thereto, (B) the first date on which all such
Registrable Securities can immediately be sold within a ninety day period
pursuant to Rule 144(e)(1)(i) under the Securities Act, (C) the first date
upon which such holder (i) owns less than ten percent (10%) of the then
issued and outstanding shares of Common Stock of the Company, (ii) is no
longer an "affiliate" of the Company for purposes of Rule 144 of the
Securities Act and (iii) no longer has a direct seat or a representative
with a seat on the Company's Board of Directors or (D) the date upon which
such Registrable Securities cease to be outstanding (in any such case, such
period being called the "SHELF REGISTRATION EFFECTIVENESS PERIOD").
(y) The Company may, by notice given to all
holders of Registrable Securities, require such holders not to make any
sale of Registrable Securities pursuant to the Shelf Registration Statement
if, in the good faith judgment of the Company, (A) securities laws
applicable to such sale would require the Company to disclose Non-Public
Information and (B) the disclosure of such Non-Public Information would
materially and adversely affect the business or operations of the Company
or any proposed financing, reorganization or recapitalization of the
Company or pending negotiations relating to a merger, consolidation,
acquisition or similar transaction. In the event that sales under the Shelf
Registration Statement are suspended because of the obligation to disclose
Non-Public Information, the Company will notify the holders of Registrable
Securities promptly upon such Non-Public Information being included by the
Company in a filing with the Commission, being
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otherwise disclosed to the public (other than through the actions of a
holder of Registrable Securities) or ceasing to be material to the Company,
and upon such notice being given by the Company, the holders of Registrable
Securities shall again be entitled to sell Registrable Securities pursuant
to the Shelf Registration Statement. Notwithstanding the foregoing, the
right of the Company pursuant to this clause (y) to require the holders to
suspend sales under such Shelf Registration Statement shall not extend for
more than 90 total days in any rolling period of twelve consecutive months
during which the Registrable Securities are saleable pursuant to a
Registration Statement.
(iii) Notwithstanding any other provisions hereof, the
Company will use its reasonable best efforts to ensure that (A) any Shelf
Registration Statement and any amendment thereto and any prospectus forming
part thereof and any supplement thereto complies in all material respects
with the Securities Act and the rules and regulations of the Commission
thereunder, (B) any Shelf Registration Statement and any amendment thereto,
at the time each become effective (in either case, other than with respect
to information included therein in reliance upon or in conformity with
information furnished in writing or confirmed in writing to the Company by
or on behalf of the holder of such Registrable Securities specifically for
use therein (the "HOLDER INFORMATION")), does 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 not
misleading and (C) any prospectus forming part of any Shelf Registration
Statement, and any supplement to such prospectus (in either case, other
than with respect to Holder Information), as of the date of each, does not
contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iv) The Company will pay all Registration Expenses
incurred in connection with the Shelf Registration Statement.
(b) REGISTRATION STATEMENT FORM. A Shelf Registration
Statement shall be on such appropriate registration form promulgated by the
Commission as shall be selected by the Company and shall permit the disposition
of such Registrable Securities in accordance with the intended method or methods
specified in their request for such registration. If, during the period in which
the Company is obligated to maintain the Shelf Registration in effect, the
Company becomes qualified for registration on Form S-3 or any comparable or
successor form or forms for offers and sales by Holders, then, the Company may,
in its discretion, terminate the Shelf Registration and concurrently register
the Registrable Securities on such short-form registration statement. The
obligations of the Company with respect to maintenance of such registration
statement and prospectus included therein shall be subject to the terms of this
Agreement and such
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new registration statement shall be deemed to be a "Shelf Registration
Statement" for purposes of this Agreement.
2. PIGGYBACK REGISTRATION RIGHTS.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. If the Company at
any time proposes after the date hereof to effect a registration, other than a
Shelf Registration Statement, of equity securities or securities convertible
into equity securities of the Company under the Securities Act whether for sale
for the account of the Company or for the account of any holder of securities of
the Company (other than Registrable Securities) (a "PIGGYBACK REGISTRATION"), it
will each such time give prompt written notice (a "NOTICE OF PIGGYBACK
REGISTRATION"), at least 10 Business Days prior to the anticipated filing date,
to all holders of Registrable Securities stating (i) its intention to do so,
(ii) whether the Piggyback Registration will be made pursuant to an underwritten
offering and (iii) such holders' rights under this Section 2, which Notice of
Piggyback Registration shall include a description of the intended method of
disposition of such securities.
Upon the written request of any such holder made within five
days after receipt of a Notice of Piggyback Registration (which request shall
specify the Registrable Securities intended to be disposed of by such holder),
the Company will, subject to the other provisions of this Agreement, include in
the registration statement relating to such Piggyback Registration all
Registrable Securities which the Company has been so requested to register, all
to the extent requisite to permit the disposition of such Registrable Securities
in accordance with the intended method of disposition set forth in the Notice of
Piggyback Registration. Notwithstanding the foregoing, if, at any time after
giving a Notice of Piggyback Registration and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine in its good faith judgment to not register or to delay
registration of such securities, the Company shall at its election, give written
notice of such determination to each holder of Registrable Securities and,
thereupon, 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 the Registration Expenses in
connection therewith). Notwithstanding the foregoing, for purposes of this
Agreement, Piggyback Registration shall not include any registration in respect
of a dividend reinvestment or similar plan for stockholders of the Company or
any registration on Form S-4 or on Form S-8.
(b) REGISTRATION EXPENSES. The Company will pay all
Registration Expenses incurred in connection with each Piggyback Registration.
(c) PRIORITY IN CUTBACK REGISTRATIONS. If a Piggyback
Registration becomes a Cutback Registration, the Company will include in such
registration, to the extent of the amount or kind of securities which the
Managing Underwriter advises the Company can be sold in such offering in the
following order:
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(i) First, the securities proposed by the Company to be
sold for its own account,
(ii) Second, any Registrable Securities requested to be
included in such registration by Requesting Holders, pro rata on the basis
of the number of Registrable Securities requested to be included by such
holders, and
(iii) Third, any other securities of the Company proposed
to be included in such registration, allocated among the holders thereof in
accordance with the priorities then existing among the Company and such
holders;
and any securities so excluded shall be withdrawn from and shall not be included
in such Piggyback Registration but are eligible to be included in any future
Piggyback Registration(s).
3. REGISTRATION PROCEDURES.
If and whenever the Company is required to effect the registration of
any Registrable Securities under the Securities Act pursuant to Section 1 or
Section 2, the Company will use its reasonable best efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of disposition thereof. Without limiting the foregoing, the
Company in each such case will:
(a) As far in advance as reasonably practical before filing a
registration statement or any amendment thereto, the Company will furnish to the
holders of the Registrable Securities included in such registration statement
copies of reasonably complete drafts of all such documents proposed to be filed
(including exhibits), and any such holder shall have three Business Days to
object to any Holder Information contained therein and the Company will make the
corrections reasonably requested by such Holder with respect to such
information;
(b) Subject to Section 1(a)(ii) and paragraph (f) below, use
its reasonable best efforts to prepare and file with the Commission such
amendments and supplements to such registration statement and any prospectus
used in connection therewith as may be necessary to maintain the effectiveness
of such registration statement and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
covered by such registration statement, in accordance with the intended methods
of disposition thereof, until the Shelf Registration Effectiveness Period has
ended, or, with respect to a Piggyback Registration, until the Company shall
determine in its good faith judgment otherwise;
(c) promptly notify each holder of Registrable Securities
included on a registration statement (and the underwriters, if any):
(i) when such registration statement or any prospectus
used in connection therewith, or any amendment or supplement
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thereto, has been filed and, with respect to such registration statement or
any post-effective amendment thereto, when the same has become effective;
(ii) of the notification to the Company by the Commission
of the issuance of any stop order suspending the effectiveness of such
registration statement, or of any order preventing or suspending the use of
any preliminary prospectus; and
(iii) of the receipt by the Company of any notification
with respect to the suspension of the qualification or the exemption from
qualification of any Registrable Securities for sale under the applicable
securities or blue sky laws of any jurisdiction or the initiation of any
proceeding for such purpose;
(d) furnish to each holder of Registrable Securities covered
by such registration statement, not later than two Business Days after filing
with the Commission, such number of copies of the prospectus contained in such
registration statement (including any summary prospectus and prospectus
supplements) that has been declared effective and any other prospectus filed
under Rule 424 promulgated under the Securities Act relating to such holder's
Registrable Securities as such seller may reasonably request to facilitate the
disposition of its Registrable Securities;
(e) use its reasonable best efforts to register or qualify all
Registrable Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as each holder thereof shall
reasonably request, to keep such registration or qualification in effect for so
long as such registration statement remains in effect, and to take any other
action which may be reasonably necessary or advisable to enable such holder to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such holder, except that the Company shall not for any such purpose be
required (i) to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this paragraph (e)
be obligated to be so qualified, (ii) to subject itself to taxation in any such
jurisdiction or (iii) to consent to general service of process in any
jurisdiction unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act or applicable
rules or regulations thereunder;
(f) promptly notify each holder 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, of the happening
of any event, the existence of any condition or any information becoming known
as a result of which any 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, in the light of the circumstances under which they were
made, not misleading, and at the request of any such holder promptly prepare and
furnish to such holder 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
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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, in the light of the
circumstances under which they were made, not misleading; provided, however, the
Company shall not be required to furnish such supplement or amendment at any
time that sales of Registrable Securities are suspended under the circumstances
described in Section 1(a)(ii)(y) for as long as such sales are suspended;
(g) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, and make available to
its securityholders, as soon as reasonably practicable, an earnings statement of
the Company which complies with the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder;
(h) make available for inspection by any Requesting Holder and
any attorney, accountant or other agent retained by any such Requesting Holder
(collectively, the "INSPECTORS"), all financial and other records, pertinent
corporate documents and properties of the Company (collectively, the "RECORDS")
as shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors, employees and its
counsel and its subsidiaries to supply all information reasonably requested by
any such Inspector in connection with such registration statement; provided that
nothing in this Agreement shall require the waiver of any privilege or the
disclosure of any information that would result in any such waiver. Records
which the Company determines, in good faith, to be confidential and which it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, or (ii) the
information in such Records has been made generally available to the public,
provided, however, that prior notice shall be provided as promptly as
practicable to the Company of the potential disclosure of any information by
such Inspector pursuant to clause (i) of this sentence in order to permit the
Company to obtain a protective order (or to waive the provisions of this
paragraph). The Company may request the Inspectors enter into a standard
confidentiality agreement to this effect prior to furnishing any confidential
information. The seller of Registrable Securities agrees that it will, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at the Company's
expense, to undertake appropriate action to prevent disclosure of the Records
deemed confidential;
(i) provide a transfer agent and a registrar for all
Registrable Securities covered by such registration statement not later than the
effective date of such registration statement; and
(j) provide a CUSIP number for all Registrable Securities not
later than the effective date of the Shelf Registration Statement or Piggyback
Registration.
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The Company may require each holder of Registrable Securities as to
which any registration is being effected to, and each such holder, as a
condition to including Registrable Securities in such registration, shall,
furnish the Company with such information and affidavits regarding such holder
and the distribution of such securities as the Company may from time to time
reasonably request in writing in connection with such registration.
Each holder of Registrable Securities agrees that upon receipt of any
notice from the Company of the happening of any event of the kind described in
paragraph (f), 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 paragraph (f) and, if so
directed by the Company, will deliver to the Company or destroy all copies,
other than permanent file copies, then in such holder's possession of the
prospectus relating to such Registrable Securities current at the time of
receipt of such notice.
4. UNDERWRITTEN OFFERINGS.
If the Company at any time proposes to register any of its securities
in a registration pursuant to which any Holder has rights pursuant to Section
2(a) and such securities are to be distributed by or through one or more
underwriters, the Company will, subject to the provisions of Section 2(c), use
its reasonable best efforts, if requested by any holder of Registrable
Securities, to arrange for such underwriters to include the Registrable
Securities to be offered and sold by Requesting Holders among the securities to
be distributed by such underwriters, and such holders shall be obligated to sell
their Registrable Securities in such Piggyback Registration through such
underwriters on the same terms and conditions as apply to the other Company
securities to be sold by such underwriters in connection with such Piggyback
Registration. The holders of Registrable Securities to be distributed by such
underwriters shall be parties to a customary underwriting agreement between the
Company and such underwriter or underwriters and shall make customary
representations and warranties regarding such holder, its ownership of
securities being registered on its behalf, its ability to consummate the
transaction and any other representations required by law; provided, however
that no holder of Registrable Securities shall be required to make any
representations or warranties with respect to the Company or any other holder.
No Requesting Holder may participate in any underwritten Piggyback Offering
unless such holder (i) agrees to sell its Registrable Securities on the basis
reasonably provided in any underwriting arrangements approved by the Company;
and (ii) completes and executes all questionnaires, powers of attorney,
indemnities, lock-up agreements and other documents reasonably required under
the terms of such underwriting arrangements. If any Requesting Holder
disapproves of the terms of an underwriting, such holder may elect to withdraw
therefrom and from such registration by notice to the Company and the Managing
Underwriter, and each of the remaining Requesting Holders shall be entitled to
increase the number of Registrable Securities being registered to the extent of
the Registrable Securities so withdrawn in the proportion which the number of
Registrable Securities being registered by such
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remaining Requesting Holder bears to the total number of Registrable Securities
being registered by all such remaining Requesting Holders.
5. HOLDBACK AGREEMENTS.
If and to the extent requested by the Managing Underwriter
(such request to be made at least five Business Days in advance of the beginning
of the holdback period), each holder of Registrable Securities agrees, to the
extent permitted by law, not to effect any public sale or distribution
(including a sale under Rule 144) of Common Stock, or securities convertible
into or exchangeable or exercisable for Common Stock, during the 90 days after
the effective date of any registration statement filed by the Company in
connection with a primary offering of Common Stock on behalf of the Company (or
for such shorter period of time as is sufficient and appropriate, in the opinion
of the Managing Underwriter, in order to complete the sale and distribution of
the securities included in such registration), except as part of such
registration statement, whether or not such holder participates in such
registration and each such holder of Registrable Securities shall sign a
customary agreement with the Managing Underwriter with respect to the matters
set for above to the extent requested by the Managing Underwriter. The
restrictions in this Section 5 shall only apply to the holders of Registrable
Securities in connection with one registration statement filed by the Company in
connection with a primary offering of Common Stock on behalf of the Company and
only to the extent that all other holders of Registrable Securities, officers of
the Company, directors of the Company and all other affiliates of the Company
agree to the same restrictions.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall, to the
full extent permitted by law, indemnify and hold harmless each holder of
Registrable Securities included in any registration statement filed in
connection with a Shelf Registration Statement or a Piggyback Registration, its
directors, officers, members and partners, and each other Person, if any, who
controls any such holder within the meaning of the Securities Act, against any
losses, claims, damages, expenses or liabilities (as actions or proceedings in
respect thereof), joint or several (together, "LOSSES"), to which such holder or
any such director, officer, member, partner or controlling Person may become
subject under the Securities Act or otherwise, insofar as 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 such registration statement, 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 (in the case of a prospectus, in the
light of the circumstances under which they were made) not misleading and the
Company will reimburse such holder and each such director, officer, member,
partner and controlling Person for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending against any such
Loss (or action or proceeding in respect thereof); provided, however, that the
Company shall not be liable in
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any such case to the extent that any such Loss (or action or proceeding in
respect thereof) (i) is caused by or contained in any information relating to
such holder furnished in writing to the Company by such holder expressly for use
in such registration statement, preliminary, final or summary prospectus
contained therein, or any amendment or supplement thereto, (ii) is caused by
such holder's failure to deliver a copy of the current prospectus simultaneously
with or prior to such sale after the Company has furnished such holder with a
sufficient number of copies of such prospectus correcting such material
misstatement or omission, (iii) arises in respect of any offers to sell or sales
made during any period when a holder is required to discontinue sales under
Section 3(c)(ii) or (iii) (and after such holder has received notice as
contemplated by Section 3(c)(ii) or (iii)), or (iv) is incurred as a result of
such indemnitee's bad faith, willful misconduct or gross negligence. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such holder or any such director, officer, member,
partner or controlling Person, and shall survive the transfer of such securities
by such holder to a Permitted Successor.
(b) INDEMNIFICATION BY THE HOLDERS. Each holder of Registrable
Securities which are included or are to be included in any registration
statement filed in connection with a Shelf Registration Statement or a Piggyback
Registration, as a condition to including Registrable Securities in such
registration statement, shall, to the full extent permitted by law, indemnify
and hold harmless the Company, its directors and officers, and each other
Person, if any, who controls the Company within the meaning of the Securities
Act, against any Losses to which the Company or any such director or officer or
controlling Person may become subject under the Securities Act or otherwise,
insofar as 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 such
registration statement, 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 (in the case of a
prospectus, in the light of the circumstances under which they were made) not
misleading, if such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with information
furnished or confirmed in writing to the Company; provided, however, that in no
event shall any indemnity provided by a Holder under this Section 6(b) exceed
the net proceeds from the offering received by such Holder. 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, member, partner or
controlling Person and shall survive the transfer of such securities by such
holder to a Permitted Successor.
(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 the preceding paragraph (a) or (b) of this
Section 6, such Indemnified Party will, if a claim in respect thereof is to be
made against an Indemnifying Party pursuant to such paragraphs, give written
notice to the latter of the commencement of such action, provided that the
failure of any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligations under
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the preceding paragraphs of this Section 6, except to the extent that the
Indemnifying Party is actually prejudiced by such failure to give notice. In
case any such action is brought against an Indemnified Party, the Indemnifying
Party shall be entitled to participate in and to assume the defense thereof,
jointly with any other Indemnifying Party similarly notified to the extent that
it may wish, and after notice from the Indemnifying Party to such Indemnified
Party of its election so to assume the defense thereof, the Indemnifying Party
shall not be liable to such Indemnified Party for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof other
than reasonable costs of investigation; provided that the Indemnified Party may
participate in such defense at the Indemnified Party's expense; and provided
further that the Indemnified Party (or Indemnified Parties) shall have the right
to employ one counsel to represent it (or them, collectively) if, in the
reasonable judgment of the Indemnified Party or Indemnified Parties, it is
advisable for it (or them) to be represented by separate counsel by reason of
having legal defenses which are different from or in addition to those available
to the Indemnifying Party, and in that event the reasonable fees and expenses of
such one counsel shall be paid by the Indemnifying Party. If the Indemnifying
Party is not entitled to, or elects not to, assume the defense of a claim, it
will not be obligated to pay the fees and expenses of more than one counsel for
the Indemnified Parties with respect to such claim. No Indemnifying Party shall
consent to entry of any judgment or enter into any settlement without the
consent of the Indemnified Party which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party of a
release from all liability in respect of such claim or litigation. No
Indemnifying Party shall be subject to any liability for any settlement made
without its consent, which consent shall not be unreasonably withheld.
(d) CONTRIBUTION. If the indemnity and reimbursement
obligation provided for in any paragraph of this Section 6 is unavailable or
insufficient to hold harmless an Indemnified Party in respect of any Losses (or
actions or proceedings in respect thereof) referred to therein, then the
Indemnifying Party shall contribute to the amount paid or payable by the
Indemnified Party as a result of such Losses (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and the Indemnified Party on the
other hand in connection with the statements or omissions which resulted in such
Losses, as well as any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Indemnifying Party or the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this paragraph were to be determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the first sentence of
this paragraph. The amount paid by an Indemnified Party as a result of the
Losses referred to in the first sentence of this paragraph shall be deemed to
include any legal and other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any Loss which is the
subject of this paragraph.
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No Indemnified Party guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from the Indemnifying Party if the Indemnifying Party was not
guilty of such fraudulent misrepresentation.
(e) INDEMNIFICATION PAYMENTS. The indemnification required by
this Section 6 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
Losses are incurred, provided that each Indemnified Party shall repay such
payments if and to the extent it shall be determined by a court of competent
jurisdiction that such recipient is not entitled to such payment.
7. LISTING REQUIREMENT.
The Company will use its commercially reasonable best efforts to list
the Common Stock on a national securities exchange or to be quoted on a national
automated interdealer quotation system within one year of the Effective Date
unless the Board of Directors of the Company determines otherwise.
8. OTHER REGISTRATION RIGHTS.
The Company represents and warrants to the Holders that there is not
in effect on the date hereof any agreement by the Company (other than this
Agreement) pursuant to which any holders of securities of the Company have a
right to cause the Company to register or qualify such securities under the
Securities Act or any securities or blue sky laws of any jurisdiction. The
Company agrees that, for so long as any holder is entitled to registration
rights under this Agreement, the Company shall not enter into any agreement
granting registration rights with respect to the Company's capital stock
equivalent or superior to the Company's registration obligations to the holders
under Section 2(c)(ii) of this Agreement.
9. DEFINITIONS.
Except as otherwise specifically indicated, the following terms will
have the following meanings for all purposes of this Agreement:
"AGREEMENT" means this Registration Rights Agreement, as the same
shall be amended from time to time.
"BANKRUPTCY CASE" has the meaning ascribed to it in the preamble.
"BANKRUPTCY CODE" has the meaning ascribed to it in the preamble.
"BANKRUPTCY COURT" has the meaning ascribed to it in the preamble.
"BUSINESS DAY" means a day other than Saturday, Sunday or any other
day on which banks located in the State of New York are authorized or obligated
to close.
12
"COMMISSION" means the United States Securities and Exchange
Commission, or any successor governmental agency or authority.
"COMMON STOCK" means shares of Common Stock, par value $0.001 per
share, of the Company, as constituted on the date hereof, and any stock into
which such Common Stock shall have been changed or any stock resulting from any
reclassification of such Common Stock.
"COMPANY" has the meaning ascribed to it in the preamble.
"CONFIRMATION ORDER" has the meaning ascribed to it in the preamble.
"CUTBACK REGISTRATION" means any registration to be effected as an
underwritten Public Offering in which the Managing Underwriter with respect
thereto advises the Company in writing that, in its opinion, the number of
securities requested to be included in such registration (including securities
of the Company which are not Registrable Securities) exceed the number which can
be sold in such offering or which can be sold without a material reduction in
the selling price anticipated to be received for the securities to be sold in
such Public Offering, or which can be sold without otherwise adversely affecting
the success of such offering.
"EFFECTIVE DATE" has the meaning ascribed to it in the Plan.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"FORM S-4" means Form S-4 promulgated by the Commission under the
Securities Act, or any successor or similar registration statement.
"FORM S-8" means Form S-8 promulgated by the Commission under the
Securities Act, or any successor or similar registration statement.
"HOLDER" has the meaning ascribed to it in the preamble.
"HOLDER INFORMATION" has the meaning ascribed to it in
Section 1(a)(iii).
"INDEMNIFIED PARTY" means a party entitled to indemnity in accordance
with Section 6.
"INDEMNIFYING PARTY" means a party obligated to provide indemnity in
accordance with Section 6.
"INSPECTORS" has the meaning ascribed to it in Section 3(h).
"LOSSES" has the meaning ascribed to it in Section 6(a).
13
"MANAGING UNDERWRITER" means, with respect to any Public Offering, the
underwriter or underwriters managing such Public Offering.
"NASD" means the National Association of Securities Dealers, Inc.
"NOTICE OF PIGGYBACK REGISTRATION" has the meaning ascribed to it in
Section 2(a).
"PERMITTED SUCCESSORS" has the meaning ascribed to it in Section
10(f).
"PERSON" means any natural person, corporation, general partnership,
limited partnership, limited liability company, proprietorship, other business
organization, trust, union or association.
"PIGGYBACK REGISTRATION" has the meaning ascribed to it in Section
2(a).
"PLAN" has the meaning ascribed to it in the preamble.
"PUBLIC OFFERING" means any offering of Common Stock to the public,
either on behalf of the Company or any of its securityholders, pursuant to an
effective registration statement under the Securities Act.
"RECORDS" has the meaning ascribed to it in Section 3(h).
"REGISTRABLE SECURITIES" means (i) the Shares held by Holders (or
their successors, assignees or transferees as contemplated by Section 10(g)),
and (ii) any additional shares of Common Stock issued or distributed to the
Holders (or their successors, assignees or transferees as contemplated by
Section 10(g)) by way of a dividend, stock split, conversion, or other
distribution in respect of the Shares, or acquired by way of any rights offering
or similar offering made in respect of the Shares. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
when (i) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such Registrable
Securities shall have been disposed of in accordance with such registration
statement, (ii) they shall have been sold pursuant to Rule 144, or (iii) they
shall have ceased to be outstanding.
"REGISTRATION EXPENSES" means all expenses incident to the Company's
performance of or compliance with its obligations under this Agreement to effect
and maintain the registration of Registrable Securities in any Shelf
Registration Statement or a Piggyback Registration, including, without
limitation, all registration, filing, securities exchange listing and NASD fees
(including Nasdaq fees, if applicable), all registration, filing, qualification
and other fees and expenses of complying with securities or blue sky laws
(including fees of a single counsel retained by the holders of a majority of
Registrable Securities being registered to advise the holders with respect to
all of the foregoing matters), all word processing, duplicating and printing
expenses, messenger and delivery expenses, the fees and disbursements of counsel
for the Company
14
and of its independent public accountants, including the expenses of any special
audits or "cold comfort" letters required by or incident to such performance and
compliance in connection with an underwritten offering and any fees and
disbursements of underwriters customarily paid by issuers or holders of
securities, but excluding underwriting discounts and commissions and transfer
taxes, if any, in respect of Registrable Securities, which shall be payable by
each holder thereof.
"REQUESTING HOLDERS" means, with respect to any Piggyback
Registration, the holders of Registrable Securities requesting to have
Registrable Securities included in such registration in accordance with this
Agreement.
"RULE 144" means Rule 144 promulgated by the Commission under the
Securities Act, and any successor provision thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SHARES" has the meaning ascribed to it in the preamble.
"SHELF REGISTRATION EFFECTIVENESS PERIOD" has the meaning ascribed to
it in Section 1(a).
"SHELF REGISTRATION STATEMENT" means a registration statement of the
Company in compliance with the provisions of Section 1(a)(i) and Section 1(b) of
this Agreement which registers the continuous offer and sale of all of the
Registrable Securities on an appropriate form under Rule 415 under the
Securities Act or any similar or successor rule that may be adopted by the
Commission, and all amendments to such registration statement, including
post-effective amendments, in each case including any prospectus contained
therein and any supplement to any such prospectus, all exhibits thereto and all
information incorporated by reference therein.
10. MISCELLANEOUS.
(a) NOTICES. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (registered or
certified mail, postage prepaid) to the parties at the following addresses or
facsimile numbers:
If to Holder, to the addresses set forth on the signature pages
hereof.
If to the Company, to:
Xxxxxx International, Inc.
0000 Xxxx Xxxx Xxx
Xxxxxx XX 00000-0000
Attn: Chief Financial Officer
15
Telephone No.:
Facsimile No.:
With respect to any other holder of Registrable Securities, such
notices, requests and other communications shall be sent to the addresses set
forth in the stock transfer records regularly maintained by the Company. All
such notices, requests and other communications will (i) if delivered personally
to the address as provided in this Section, be deemed given upon delivery, (ii)
if delivered by facsimile transmission to the facsimile number as provided in
this Section, be deemed given when sent by confirmed facsimile if sent during
normal business hours of the recipient, if not, then on the next Business Day,
and (iii) if delivered by mail in the manner described above to the address as
provided in this Section, be deemed given five days after deposit with the
United States Post Office (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). Any party from time to
time may change its address, facsimile number or other information for the
purpose of notices to that party by giving notice specifying such change to the
other parties hereto.
(b) 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.
(c) AMENDMENT. This Agreement may be amended, supplemented or
modified only by a written instrument (which may be executed in any number of
counterparts) duly executed by or on behalf of each of the Company and Holders
owning more than fifty percent (50%) of the Registrable Securities.
(d) WAIVER. Subject to paragraph (e) of this Section, 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.
(e) CONSENTS AND WAIVERS BY HOLDERS OF REGISTRABLE SECURITIES.
Any consent of the holders of Registrable Securities pursuant to this
Agreement, and any waiver by such holders of any provision of this Agreement,
shall be in writing (which may be executed in any number of counterparts) and
may be given or taken by Holders owning more than fifty percent (50%) of the
Registrable Securities and any such consent or waiver so given or taken will be
binding on all the holders of Registrable Securities.
(f) NO THIRD PARTY BENEFICIARY. The terms and provisions of
this Agreement are intended solely for the benefit of each party hereto and
their respective successors or assigns, but only to the extent that such
successor or assign has acquired from the Holder shares of Common Stock
representing at least 10% of the then issued
16
and outstanding Common Stock of the Company as contemplated by Section 10(g)
("PERMITTED SUCCESSOR"). It is not the intention of the parties to confer
third-party beneficiary rights upon any other Person other than any Person
entitled to indemnity under Section 6.
(g) SUCCESSORS AND ASSIGNS. This Agreement is binding upon,
inures to the benefit of and is enforceable by the Company and the Holders (or
the Person or Persons for which a Holder is acting as fiduciary or agent, as the
case may be) and their respective Permitted Successors; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a Permitted
Successor unless and except to the extent such Permitted Successor holds
Registrable Securities; provided, further, that nothing herein shall be deemed
to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms hereof, the Securities Act or any
securities or blue sky laws of any jurisdiction.
(h) HEADINGS. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
(i) INVALID PROVISIONS. If any provision of this Agreement is
held to be illegal, invalid or unenforceable under any present or future law,
and if the rights or obligations of any party hereto under this Agreement will
not be materially and adversely affected thereby, (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
and (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.
(j) REMEDIES. Except as otherwise expressly provided for
herein, no remedy conferred by any of the specific provisions of this Agreement
is intended to be exclusive of any other remedy, and each and every remedy shall
be cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity or by statute or otherwise. The
election of any one or more remedies by any party hereto shall not constitute a
waiver by any such party of the right to pursue any other available remedies.
Damages in the event of breach of this Agreement by a party hereto or
any other holder of Registrable Securities would be difficult, if not
impossible, to ascertain, and it is therefore agreed that each such Person, in
addition to and without limiting any other remedy or right it may have, will
have the right to an injunction or other equitable relief in any court of
competent jurisdiction, enjoining any such breach, and enforcing specifically
the terms and provisions hereof and the Company and each holder of Registrable
Securities, by its acquisition of such Registrable Securities, hereby waives any
and all defenses it may have on the ground of lack of jurisdiction or competence
of the court to grant such an injunction or other equitable relief. The
existence of this right will not preclude any such Person from pursuing any
other rights and remedies at law or in equity which such Person may have.
17
(k) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
(l) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
[Signatures on next page.]
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of each party hereto as of the date
first above written.
"COMPANY"
XXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President, Finance, CFO
"HOLDERS"
FIDELITY SUMMER STREET TRUST:
FIDELITY CAPITAL & INCOME FUND
By: /s/ Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Assistant Treasurer
FIDELITY ADVISOR SERIES II:
FIDELITY HIGH INCOME ADVANTAGE
FUND
By: /s/ Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Assistant Treasurer
PENSION INVESTMENT COMMITTEE
OF GENERAL MOTORS FOR GENERAL
MOTORS EMPLOYEES DOMESTIC
GROUP PENSION TRUST
By: Fidelity Management and Trust
Company, its investment advisor
By: /s/ Xxxx X. X'Xxxxxx Xx.
---------------------------------------
Name: Xxxx X. X'Xxxxxx Xx.
Title: Executive Vice President
COMMONWEALTH OF
MASSACHUSETTS PENSION
RESERVES INVESTMENT
MANAGEMENT BOARD
By: Fidelity Management and Trust
Company, its investment advisor
By: /s/ Xxxx X. X'Xxxxxx Xx.
---------------------------------------
Name: Xxxx X. X'Xxxxxx Xx.
Title: Executive Vice President
FIDELITY SECURITIES FUND:
FIDELITY LEVERAGED COMPANY
STOCK FUND
By: /s/ Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Assistant Treasurer
FIDELITY ADVISOR SERIES I:
FIDELITY ADVISOR LEVERAGED
COMPANY STOCK FUND
By: /s/ Xxxx Xxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Assistant Treasurer
20
