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Exhibit 99.2
XXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
January 31, 2001
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XXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made as of January 31, 2001 (the
"AGREEMENT") by and among Xxxx.xxx, Inc., a Delaware corporation ("XXXX.XXX"),
and each of the investors listed on the signature pages hereof (the
"INVESTORS").
RECITALS
A. Xxxx.xxx desires to sell and issue to the Investors and the
Investors desire to purchase from Xxxx.xxx up to $78.45 million aggregate
principal amount of 10% Senior Convertible Notes (the "NOTES") of Xxxx.xxx
pursuant to a Note Exchange Agreement of even date herewith (the "NOTE
EXCHANGE AGREEMENT").
B. In order to induce the Investors to purchase Notes pursuant to
the Note Exchange Agreement, Xxxx.xxx desires to grant to the holders of Notes
(the "HOLDERS") certain registration rights with respect to all of the shares
of Class A common stock, par value $.01 per share, issuable upon conversion of
the Notes (the "Conversion Shares") and all of the Class A common stock, par
value $.01 per share, issuable in payment of interest on the Notes as provided
in the Notes (the "Interest Payment Shares"), all on the terms and conditions
set forth herein.
In consideration of the foregoing and the promises and covenants
contained herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the
following respective meanings:
"ACT" means the U.S. Securities Act of 1933, as amended from
time to time.
"AGREEMENT" means this Agreement, as the same may be amended or
supplemented from time to time in accordance with the terms hereof.
"COMMON STOCK" means the shares of Class A common stock, par
value $.01 per share, that Xxxx.xxx is authorized to issue by way of
Xxxx.xxx's Amended and Restated Certificate of Incorporation, and amendments
thereto.
"CONVERSION SHARES" has the meaning set forth in the recitals
above.
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"DEMAND REGISTRATION" has the meaning set forth in SECTION
2.01(a) of this Agreement.
"HOLDERS" has the meaning set forth in the preface above.
"INDEMNIFIED PARTY" and "INDEMNIFYING PARTY" have the meanings
set forth in SECTION 2.07(c) of this Agreement.
"INTEREST PAYMENT SHARES" has the meaning set forth in the
recitals above.
"PIGGYBACK REGISTRATION" has the meaning set forth in Section
2.02 of this Agreement.
"REGISTRABLE SECURITIES" means (i) the Conversion Shares and
the Interest Payment Shares, (ii) any Class A common stock of Xxxx.xxx issued
as (or issuable upon the conversion or exercise of any warrant, right or other
security that is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of the securities referenced in clause
(i) and this clause (ii), and (iii) any other shares of capital stock of
Xxxx.xxx into or for which the securities referenced in clauses (i) and (ii)
may be converted into or exchanged pursuant to a recapitalization or
reclassification of Xxxx.xxx's capital stock; provided, however, that
Registrable Securities shall not include any securities that (w) have been
registered and sold pursuant to the Act, (x) have been distributed to the
public through a broker, dealer or market maker pursuant to Rule 144 under the
Act, (y) are eligible for public resale under Rule 144(k) under the Securities
Act or in accordance with the law governing any non-U.S. exchange where the
Common Stock is publicly listed or (z) have been sold in a transaction exempt
from registration under the Act so that all transfer restriction and
restrictive legends with respect thereto are removed upon consummation of such
sale.
"REGISTRATION EXPENSES" means all expenses incident to Xxxx.xxx's
performance of or compliance with this Agreement, including, without
limitation, (i) all registration, filing, securities exchange listing, rating
agency and National Association of Securities Dealers fees, (ii) all
registration, filing, qualification and other fees and expenses of complying
with securities or blue sky laws of all jurisdictions in which the securities
are to be registered and any legal fees and expenses incurred in connection
with the blue sky qualification of the Registrable Securities and the
determination of their eligibility for investment under the laws of all such
jurisdictions, (iii) all word processing, duplicating, printing, messenger and
delivery expenses, (iv) the fees and disbursements of counsel for Xxxx.xxx and
of its independent public accountants, including, without limitation, the
expenses of any special audits or "cold comfort" letter required by or
incident to such performance and compliance, (v) in connection with any firm
commitment, underwritten offering, the reasonable fees and disbursements of
any one counsel or one accounting firm retained by the Holders of the
Registrable Securities being registered, not to exceed $15,000 in the
aggregate for all of such fees and disbursements, (vi) premiums and other
costs of policies of insurance of Xxxx.xxx against liabilities arising out of
the public offering of the Registrable Securities being registered to the
extent Xxxx.xxx elects to obtain such insurance, and (vii) any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities (but excluding underwriting discounts and commissions), if any,
relating to the Registrable Securities.
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"SEC" means the U.S. Securities and Exchange Commission.
Other capitalized terms that are used herein that are not defined herein shall
have the respective meanings ascribed to such terms in the Note Exchange
Agreement.
ARTICLE II
REGISTRATION RIGHTS
Xxxx.xxx and the Investors covenant and agree as follows:
Section 2.01 Form S-3 Registration
(a) Demand Registration. Promptly after the Closing Date (and in any
event not later than the time of filing any registration statement covering
shares issuable upon conversion of the Company's outstanding 10% Senior
Convertible Notes under the Note Purchase Agreement dated January 8, 2001),
Xxxx.xxx agrees to prepare and file a shelf registration statement on Form S-3
or other available form for an offering to be made on a continuous basis
pursuant to Rule 415 (the "Registration Statement") covering all of the
Registrable Securities and to use reasonable commercial efforts to cause the
Registration Statement to become effective as soon as practicable thereafter
(the "DEMAND REGISTRATION"); provided, however, (1) Xxxx.xxx may delay the
filing or effectiveness of the Registration Statement under the Act as
required by this SECTION 2.01, or any sales thereunder, for a period of up to
sixty (60) days if Xxxx.xxx is currently engaged in negotiating a material
financing or acquisition or disposition or other material corporate
transaction and the Board of Directors of Xxxx.xxx determines in good faith
that such Demand Registration would be materially adverse to the interests of
Xxxx.xxx in connection with such financing, acquisition, disposition or other
transaction; provided, however, that Xxxx.xxx may not exercise this right more
than twice in any twelve (12) month period and (2) in no event shall Xxxx.xxx
be required to file more than one registration statement; provided, however,
that if, after a Demand Registration has become effective, the offering of
Registrable Securities pursuant thereto is suspended, blocked by any stop
order, injunction or other order of the SEC or any governmental agency or
court, or withdrawn, such Demand Registration will be deemed not to have been
effected pursuant to this Section 2.01. If the Registration Statement in
connection with a Demand Registration shall not become effective on or before
120 days after the Closing Date, or if once effective shall cease to be
effective at any time after such 120 day period (other than during a 60 day
period described above), other than by reason of a material misstatement or
omission or alleged misstatement or omission with respect to information
furnished by the holders of Registrable Securities for use in the Registration
Statement or prospectus contained therein, then Xxxx.xxx shall pay to each
such holder an amount equal to 1% per month (2% per month if the Registration
Statement has not become effective initially on or before 240 days after the
Closing Date) of the principal amount of the Exchange Notes held by such
holder (pro rated for partial months) from such 120th day or 240th day, as
applicable, until the Registration Statement becomes effective or becomes
effective once again or until the second anniversary of the issuance of the
Exchange Notes.
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(b) Selection of Underwriters. If a Demand Registration pursuant to
this SECTION 2.01 involves an firm commitment underwritten offering, the
underwriter or underwriters (including the managing underwriter or
underwriters) thereof shall be a nationally-recognized investment banking firm
selected by a majority of the Holders requesting the underwritten offering,
subject to Xxxx.xxx's approval (and subject to any contractual commitments
that Xxxx.xxx may then have to any investment banking firm). Such approval
will not be unreasonably withheld.
(c) Underwritten Offerings. If requested by the underwriters for any
firm commitment underwritten offering by Holders pursuant to a Demand
Registration under SECTION 2.01(a), Xxxx.xxx will enter into an underwriting
agreement with such underwriters for such offering, such agreement to be
reasonably satisfactory in substance and form to the underwriters and to
contain such representations and warranties by Xxxx.xxx and such other terms
as are generally prevailing in agreements of such type, including, without
limitation, indemnities and contribution to the effect and to the extent
provided in SECTION 2.07 and 2.08, respectively. The Holders of a majority of
the Registrable Securities participating in such underwritten offering will
cooperate with Xxxx.xxx in the negotiation of the underwriting agreement. The
Holders of Registrable Securities to be distributed by such underwriters shall
be parties to such underwriting agreement and may, at their option, require
that any or all of the representations and warranties by, and the other
agreements on the part of, Xxxx.xxx to and for the benefit of such
underwriters shall also be made to and for the benefit of such Holders of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such Holders. Any such Holder shall
not be required to make any representations or warranties to or agreements
with Xxxx.xxx or the underwriters other than representations, warranties or
agreements regarding such Holder, such Holder's title to Registrable
Securities and such Holder's intended method of distribution and any other
representation required by law.
Section 2.02 Piggyback Registration. (a) Right to Piggyback. If
Xxxx.xxx proposes to register any of its securities under the Act in
connection with a firm commitment underwritten offering (other than
registrations solely for the registration of shares in connection with an
employee benefit plan or a merger or consolidation and other than pursuant to
SECTION 2.01) at any time before all of the Registrable Securities are
eligible for public resale by the Holders pursuant to Rule 144(k) under the
Act, whether or not for sale for Xxxx.xxx's own account, and the registration
form to be used may be used for the registration of Registrable Securities (a
"Piggyback Registration"), Xxxx.xxx will at each such time give prompt written
notice to all Holders of its intention to do so and of such Holders' rights
under this SECTION 2.02. Upon the written request of any such Holder made
within 30 days after the receipt of any such notice (which request shall
specify the Registrable Securities intended to be disposed of by such Holder
and the intended method of distribution thereof), Xxxx.xxx will use its
reasonable commercial efforts to effect the registration under the Act of all
Registrable Securities which Xxxx.xxx has been so requested to register by the
Holders thereof, to the extent required to permit the disposition (in
accordance with such intended methods thereof) of the Registrable Securities
so to be registered, provided that if, at any time after giving written notice
of its intention to register any securities and prior to the effective date of
the registration statement filed in connection with such registration,
Xxxx.xxx shall determine for any reason not to register or to delay
registration of such securities, Xxxx.xxx may, at its election, give written
notice of such determination to each Holder and, thereupon, (i) in the case of
a determination not to register, shall be relieved of
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its obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the registration expenses
under SECTION 2.05 in connection therewith), without prejudice, however, to
the rights of any Holder entitled to do so to request that such registration
be effected as a Demand Registration under SECTION 2.01, and (ii) in the case
of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the delay in
registering such other securities. No registration effected under this SECTION
2.02 shall relieve Xxxx.xxx of its obligation to effect any Demand
Registration upon request under SECTION 2.01.
(b) Priority in Piggyback Registrations. If the managing underwriter
of a Piggyback Registration advises Xxxx.xxx in writing that, in its opinion,
the number of shares of Registrable Securities requested or proposed to be
included in such offering exceeds the number that can be sold in such offering
without materially affecting the offering price of any such securities,
Xxxx.xxx shall include in such registration (i) first, to the extent that
securities of Xxxx.xxx are included in such registration, (A) such securities
proposed to be sold by Xxxx.xxx and (B) the securities of Xxxx.xxx held by
persons who have preferential registration rights to include such securities
in such Piggyback Registration in accordance with the agreements with respect
to such registration rights between Xxxx.xxx and such holders; and (ii)
second, to the extent that such Registrable Securities may be included in such
registration without materially affecting the offering price of the securities
referred to in clause (i), in the opinion of such managing underwriter, the
Registrable Securities requested by the Holders to be included in such
Piggyback Registration pursuant to SECTION 2.02(a) and any other securities of
Xxxx.xxx held by persons other than the Holders having rights to participate
in such Piggyback Registration that are non-preferential to the Holders of the
Registrable Securities, pro rata among all such holders on the basis of the
total number of securities of Xxxx.xxx, including Registrable Securities,
requested by each such holder to be included therein.
(c) Selection of Underwriters. Xxxx.xxx shall select the investment
banker(s) and manager(s) for the offering.
(d) Underwritten Piggyback Registrations. If Xxxx.xxx at any time
proposes to register any of its securities under the Act as to which rights
under this SECTION 2.02 have been exercised and such securities are to be
distributed by or through one or more underwriters, Xxxx.xxx will, if
requested by any Holder as provided in SECTION 2.02(a) and subject to the
provisions of SECTION 2.02 (a) AND (b), use its reasonable commercial efforts
to arrange for such underwriters to include all the Registrable Securities to
be offered and sold by such Holder among the Securities to be distributed by
such underwriters. Such Holders of the Registrable Securities to be
distributed by such underwriters shall be parties to the underwriting
agreement between Xxxx.xxx and such underwriters and may, at their option,
require that any or all of the representations and warranties by, and the
other agreements on the part of, Xxxx.xxx to and for the benefit of such
underwriters shall also be made to and for the benefit of such Holders and
that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the
obligations of such Holders. Any such Holder shall not be required to make any
representations or warranties to or agreements with Xxxx.xxx or the
underwriters other than representations, warranties or agreements regarding
such Holder, such Holder's title to Registrable Securities and such Holder's
intended method of distribution and any other representation required by law.
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Section 2.03 Obligations of Xxxx.xxx. In furtherance of its
obligations under SECTION 2.01 OR 2.02 to use its commercially reasonable
efforts to effect the registration of the Registrable Securities, Xxxx.xxx
shall, as expeditiously as reasonably possible,
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its commercially reasonable
efforts to cause such registration statement to become effective and keep such
registration statement effective until (i) in the case of a Demand
Registration, the time when all Registrable Securities are eligible for sale
by the Holders pursuant to Rule 144(k) and (ii) in the case of a Piggyback
Registration, until 90 days after the effectiveness of such registration
statement;
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration until the earlier of the time periods specified in SECTION
2.03(a) and such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the Holders set forth
in such registration statement;
(c) Furnish to the Holders such numbers of copies of such
registration statement and of each amendment and supplement thereto (in each
case including all exhibits) and prospectus, including any preliminary
prospectus, in conformity with the requirements of the Act, and such other
documents as the Holders may reasonably request in order to facilitate the
disposition of the Registrable Securities;
(d) Use its commercially reasonable efforts to register and
qualify the securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions (domestic or foreign) 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 securities owned by such Holder, except that Xxxx.xxx
shall not for any such purpose be required to qualify generally to do business
as a foreign corporation in any jurisdiction wherein it would not but for the
requirements of this SECTION 2.03(d) be obligated to be so qualified, to
subject itself to taxation in any such jurisdiction or to consent to general
service of process in any such jurisdiction;
(e) Use its reasonable commercial efforts to (i) obtain the
withdrawal of any order suspending the effectiveness of such registration
statement or sales thereunder at the earliest possible time and (ii) cause all
Registrable Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the Holders thereof to consummate the disposition of such
Registrable Securities;
(f) In connection with any firm commitment underwritten
offering, furnish to each Holder a signed counterpart, addressed to such
Holder (and the underwriters, if any) of
(i) an opinion of counsel for Xxxx.xxx dated
the date of the closing under the underwriting agreement, reasonably
satisfactory in form and substance to such underwriter, and
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(ii) a "comfort" letter, dated the effective
date of such registration statement (and dated the date of the closing
under the underwriting agreement), signed by the independent public
accountants who have certified Xxxx.xxx's financial statements
included in such registration statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities;
(g) Notify in writing each Holder, at any time when a
prospectus relating thereto is required to be delivered under the Act, (a)
upon discovery that, or upon the happening of any event as a result of which,
the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were made,
and (b) of any request for any amendment of or supplement to any registration
statement or other document relating to such offering promptly after receipt
of such request from the SEC or any other regulatory body or other body having
jurisdiction and, in either case, 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 purchasers of such securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under
which they were made;
(h) Otherwise comply with all applicable federal and state
securities laws and rules and regulations of the SEC, and make available to
the Holders, as soon as reasonably practicable, an earning statement covering
the period of at least twelve months, but not more than eighteen months,
beginning with the first full calendar month after the effective date of such
registration statement, which earning statement shall satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act, and will furnish to
each Holder draft and final versions of each registration statement and
prospectus used in connection therewith prior to the filing thereof, and any
amendment or supplement to such registration statement or prospectus and shall
not file any thereof to which any Holder shall have reasonably objected on the
grounds that such registration statement, prospectus, amendment or supplement
does not comply in all material respects with the requirements of the Act or
the rules or regulations thereunder;
(i) 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; and
(j) Use its reasonable commercial efforts to list all
Registrable Securities covered by such registration statement on each
securities exchange and inter-dealer quotation system on which similar
securities issued by Xxxx.xxx are then listed.
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Xxxx.xxx may require each Holder as to which any registration
is being effected to furnish Xxxx.xxx such information regarding such Holder
and the distribution of such securities as Xxxx.xxx may from time to time
reasonably request in writing.
Section 2.04 Furnish Information. It shall be a condition precedent
to the obligations of Xxxx.xxx to take any action pursuant to Article 2 that
the Holders shall furnish to Xxxx.xxx such information regarding such Holders,
the Registrable Securities held by such participating Holders and the intended
method of disposition thereof as Xxxx.xxx or its appointed agents shall
reasonably request and as shall be required in connection with the action to
be taken by Xxxx.xxx.
Section 2.05 Registration Expenses. In the case of any registration
effected pursuant to SECTION 2.01 OR 2.02, Xxxx.xxx shall bear all
Registration Expenses; provided, however, that the Holders shall bear the fees
and costs of its own counsel (other than to the extent provided in the
definition of "Registration Expenses" in connection with a firm commitment,
underwritten offering) and all brokers' discounts and commissions with respect
to the Registrable Securities sold by such Person.
Section 2.06 Use of Prospectus.
Each Holder agrees that if Xxxx.xxx notifies the Holder in
writing of the happening of any event as a result of which the prospectus
included in such registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the statements therein not
misleading, the Holder will discontinue immediately its disposition of
securities pursuant to the registration statement until the Holder receives
copies of an amended or supplemented prospectus, and if so directed by
Xxxx.xxx, will deliver to Xxxx.xxx all copies then in Holder's possession of
the prospectus relating to such Registrable Securities current at the time of
receipt of such notice.
Section 2.07 Indemnification. If any Registrable Securities are
included in a registration statement pursuant to SECTION 2.01 OR 2.02, then,
(a) Xxxx.xxx shall indemnify and hold harmless the Holders,
agents for and officers and directors of the Holders, any underwriter of the
Registrable Securities, and each Person, if any, who controls any such Person
within the meaning of the Act, against any losses, claims, damages or
liabilities, joint or several (or actions in respect thereof), to which they
may become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of material fact
contained in such registration statement, including any preliminary prospectus
or final prospectus contained in the registration statement, or any amendments
or supplements to the registration statement, or arise out of or are based
upon the 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 Xxxx.xxx of any rule or regulation promulgated
under the Act or any state securities law or rule or regulation applicable to
Xxxx.xxx, and will reimburse the Holders, the agents for, and officers and
directors of the Holders, any underwriter of the Registrable Securities, or
any such controlling Person for any legal or other expenses reasonably
incurred by them in connection with investigating or
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defending any such loss, claim, damage, liability or action; provided,
however, that Xxxx.xxx shall not be liable to any Holder in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon any untrue statement or omission based upon and in conformity with
information furnished to Xxxx.xxx in writing by such Holder.
(b) Each Holder shall indemnify and hold harmless Xxxx.xxx,
each of its directors and each of its officers who have signed such
registration statement against any losses, claims, damages or liabilities to
which Xxxx.xxx or any such director or officer may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities arise
out of or are based upon any untrue or alleged untrue statement of any
material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained in the registration
statement or any amendments or supplements to the registration statement, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in such registration statement, preliminary
prospectus, or amendments or supplement thereto, in reliance upon and in
conformity with information furnished by the Holder in writing expressly for
the purpose of inclusion in such registration statement, preliminary
prospectus or amendments or supplements, and the Holders will reimburse any
legal or other expenses actually and reasonably incurred by Xxxx.xxx or any
such director, officer or controlling Person in connection with investigating
or defending any such loss, claim, damage, liability or action; provided, that
the Holder's liability under this SECTION 2.06(b) shall not exceed the amount
of the gross proceeds of the offering of the Holder's Registrable Securities
included therein.
(c) Each party entitled to indemnification (the "INDEMNIFIED
PARTY") shall give notice to the party required to provide indemnification
("INDEMNIFYING PARTY") promptly after such Indemnified Party has knowledge of
any claim as to which indemnity may be sought, and shall permit the
Indemnifying Party (at its expense) to assume the defense of any such claim or
any litigation resulting therefrom; provided, however, that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be reasonably satisfactory to the Indemnified Party, and the Indemnified
Party may participate in such defense at such party's expense; provided,
further, that the failure by any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
SECTION 2.06, except to the extent that the failure results in an omission of
actual notice to the Indemnifying Party and such Indemnifying Party is
materially damaged as a result of the failure to give notice. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to the entry of any judgment or
enter into any settlement that does not include as an unconditional term the
giving by the claimant or plaintiff to such Indemnified Party of a release
from all liability with respect to such claim or litigation.
Section 2.08 Contribution. (a) If the indemnification provided for in
SECTION 2.07 is unavailable to the Indemnified Party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each such 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, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party
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on the one hand and the Indemnified Party on the other in connection with the
statement or omission which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue statement (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 statement or omission.
The Company and each Holder agree that it would not be just and equitable if
contribution pursuant to this SECTION 2.08 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above. The amount paid or payable by
an Indemnified Party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to in this ARTICLE 2 shall be deemed
to include any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim.
(b) Notwithstanding anything to the contrary contained
herein, the obligation of each Holder to contribute pursuant to this SECTION
2.08 is several and not joint and no selling Holder shall be required to
contribute any amount in excess of the amount by which the total price at
which the Registrable Securities of such selling Holder were offered to the
public exceeds the amount of any damages which such selling Holder has
otherwise been required to pay by reason of such untrue statement (or alleged
untrue statement) or omission (or alleged omission).
(c) No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
Section 2.09 Transfer of Registration Rights. The registration
rights of the Investor under this ARTICLE 2 may be assigned and transferred
(i) by each Holder to any Affiliate of the Holder to whom any of the Notes or
Conversion Shares owned by the Holder are transferred, and (ii) by the Holder
to any transferee who acquires a majority of the Registrable Securities
(adjusted to reflect subsequent stock splits, combinations, stock dividends
and recapitalizations) initially issued to such Holder; provided, however,
that Xxxx.xxx is given written notice by the Holder at the time of such
assignment and transfer stating the name and address of the transferee and
identifying the securities with respect to which the rights under this ARTICLE
2 are being assigned and transferred. For the purposes of this SECTION 2.09, a
change in control of an Affiliate of the Holder holding shares entitling such
Affiliate to the registration rights hereunder, such that such Affiliate is
subsequent to such change of control no longer an Affiliate of the Holder,
shall be deemed an attempted transfer of the registration rights hereunder and
such former Affiliate of the Holder shall not be entitled to such registration
rights except to the extent such transfer would be permitted under CLAUSE (ii)
above.
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ARTICLE III
MISCELLANEOUS
Section 3.01 Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective successors and assigns of the parties
hereto (including permitted transferees of any shares of Registrable
Securities). Nothing in this Agreement is intended to confer upon any party
other than the parties hereto or their respective successors and assigns any
rights, remedies, obligations or liability under or by reason of this
Agreement, except as expressly provided in this Agreement.
Section 3.02 Notices.
All notices and other communications required or permitted
hereunder shall be in writing, shall be effective when given, and shall in any
event be deemed to be given upon receipt or, if earlier, (a) five (5) days
after deposit with the U.S. Postal Service or other applicable postal service,
if delivered by first class mail, postage prepaid, (b) upon delivery, if
delivered by hand or transmitted via facsimile (confirmed by letter sent by
first class mail, postage prepaid with the U.S. Postal Service or other
applicable postal service), or (c) one business day after the business day of
deposit with Federal Express or similar reputable, international overnight
courier, freight prepaid. Such notices, demands and other communications shall
be sent to Xxxx.xxx at the address set forth below and to any Holder of
Registrable Securities at such address set forth on Schedule A to the Note
Exchange Agreement or at such address or to the attention of such other person
as the recipient party has specified by prior written notice to the sending
party. The address for Xxxx.xxx is:
Xxxx.xxx, Inc.
00 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
X.X.X.
Attention: Xxxxxx Xxxxxxxx, Chief Executive Officer
Facsimile No.: 000-000-0000
with a copy at the same address to:
Xxxxx X. Xxxxxxxx, Esq.
or at such other address as a party may designate by ten (10) days advance
written notice to the other party pursuant to the provisions above.
Section 3.03 Governing Law; Forum and Consent to Jurisdiction.
(a) Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed
by, the law of the State of New
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York excluding choice-of-law principles of the law of such State that would
require the application of the laws of a jurisdiction other than such State.
(b) Submission to Jurisdiction; Service of Process. (i)
Xxxx.xxx and the Holders agree that any action or proceeding brought by the
Holders in connection with this Agreement may be brought (and any action or
proceeding brought by Xxxx.xxx against the Holders in connection herewith
shall exclusively be brought) in the courts of the State of New York sitting
in the Borough of Manhattan or of the United States of America for the
Southern District of New York and, by execution and delivery of this
Agreement, Xxxx.xxx and the Holders hereby irrevocably waive any objection,
including, without limitation, any objection to the laying of venue or based
on the grounds of forum non conveniens, which it may now or hereafter have to
the bringing of any such action or proceeding by Xxxx.xxx or the Holders in
such non-exclusive jurisdictions.
(ii) Xxxx.xxx hereby irrevocably appoint CT Corporation System (the
"Process Agent"), with an office on the date hereof at 0000 Xxxxxxxx, Xxx
Xxxx, XX 00000, Xxxxxx Xxxxxx of America, as their agent to receive on their
behalf service of copies of the summons and complaint and any other process
that may be served in any such action or proceeding. Xxxx.xxx irrevocably
consents to the service of process of any of the aforesaid courts in any such
action or proceeding by the mailing of copies thereof by registered mail,
postage prepaid, to it at its address set forth in this Agreement or to the
Process Agent at its address specified above.
Section 3.04 Waivers; Amendments. The waiver by the undersigned of
any of the provisions of this Agreement shall not operate or be construed as a
waiver of any subsequent breach. This Agreement may be amended, and any
provision of this Agreement may be waived, only by a written amendment
executed by (i) in the case of any amendment affecting the rights or
obligations of Xxxx.xxx, Xxxx.xxx and (ii) in the case of any amendment
affecting the rights or obligations of the Holder, Holders of a majority of
the Registrable Securities then outstanding (including Conversion Shares
issuable upon conversion of then outstanding Notes and Interest Payment Shares
issuable in payment of interest on the Notes).
Section 3.05 Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect the
construction and interpretation of this Agreement.
Section 3.06 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
Section 3.07 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument. This Agreement may contain more
than one counterpart of the signature page and may be executed by the affixing
of the signatures of each of the parties hereto to one of these counterpart
signature pages. All of the counterpart signature pages shall be read as
though one, and they shall have the same force and effect as though all of the
signers had signed a single signature page.
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Section 3.08 Aggregation of Stock. All shares of Registrable
Securities held or acquired by affiliated entities or persons shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.
Section 3.09 Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party hereto by virtue
of the authorship of any of the provisions of this Agreement.
Section 3.10 Entire Agreement. This Agreement contains the entire
agreement of the parties hereto. The parties hereto are not bound by any oral
statements that are made outside of this Agreement.
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WHEREAS, the parties hereto have executed this Agreement as of
the date first above written.
XXXX.XXX, INC.
By:/s/ Xxxxxx Xxxxxxxx
---------------------------------
Xxxxxx Xxxxxxxx
Chief Executive Officer
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INVESTORS:
PEOPLES BENEFIT LIFE INSURANCE CO.
(Teamsters Separate Account)
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Partner
RETAIL CLERKS PENSION TRUST #2
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Partner
ST. ALBANS PARTNERS LTD.
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Partner
YIELD STRATEGIES FUND I, L.P.
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Partner
BANK OF AMERICA PENSION PLAN
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Partner
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CIRCLET (IMA) LIMITED
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Partner
GENERAL MOTORS WELFARE BENEFIT TRUST (ST-VEBA)
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Partner
PEOPLES BENEFIT LIFE INSURANCE COMPANY
By: /s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Partner
XXXXXXX FAMILY TRUST
By: /s/ Xxxxx Xxxxxxx
------------------------
Name: Xxxxx Xxxxxxx
Title: Trusteee
WOODMONT INVESTMENTS LIMITED
By: /s/ Xxx Xxxxxxx
--------------------------------
Name: Xxx Xxxxxxx
Title: Portfolio Manager
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JMG CAPITAL PARTNERS, L.P.
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Managing Member of the Investment
Advisor
JMG TRITON OFFSHORE FUND LIMITED
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Managing Member of the Investment
Advisor
