AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
EXHIBIT
99.3
EXECUTION
COPY
AMENDED
AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (this
“Agreement”), dated as of April 16, 2007,
is made by and among (i) Xxxxx Lemmerz International, Inc.,
a Delaware corporation (the “Company”),
(ii) Deutsche Bank Securities Inc.
(“DBSI”) and (iii) SPCP Group, LLC
(“SP”), and any parties identified on the
signature pages of any Additional Investor Agreements (as
defined below) executed and delivered pursuant to
Section 12.2 hereto (each, including DBSI and SP, an
“Investor” and, collectively, the
“Investors”).
RECITALS
WHEREAS, in connection with the consummation of the transactions
contemplated by that certain Amended and Restated Equity
Purchase and Commitment Agreement dated as of April 16,
2007 (the “EPCA”) by and between the Company
and DBSI, DBSI has agreed to purchase shares of Common Stock (as
defined below) in accordance with the provisions of the EPCA;
WHEREAS, in connection with the EPCA, DBSI and SP have entered
into an amended and restated agreement (the “Principal
Additional Investor Agreement”), pursuant to which SP
has agreed to purchase certain shares of the Common Stock;
WHEREAS, in connection with the EPCA, DBSI and the other
Investors may enter into one or more agreements (each, an
“Additional Investor Agreement”), pursuant to
which DBSI may arrange for one or more Investors to purchase
certain shares of the Common Stock; and
WHEREAS, in consideration of the Investors’ commitment to
purchase the Common Stock pursuant to and on the terms and
conditions set forth in the EPCA, the Company has agreed to
enter into a registration rights agreement with respect to
certain shares of Common Stock to be acquired by the Investors
and certain of their Affiliates (as defined below).
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing and the
covenants and agreements contained herein and in the EPCA, and
intending to be legally bound hereby, the parties hereto hereby
agree as follows:
ARTICLE I
Definitions
For purposes of this Agreement, the following terms have the
following meanings:
“Additional Investor Agreement” has the
meaning given to such term in the recitals hereof.
“Affiliate” has the meaning given to
that term pursuant to
Rule 12b-2
under the Exchange Act.
“Agreement” has the meaning given to
that term in the introductory paragraph hereof.
“Blackout Period” means any period
during which, in accordance with Article VI hereof,
the Company is not required to effect the filing of a
Registration Statement or is entitled to postpone the
preparation, filing or effectiveness, or suspend the
effectiveness of a Registration Statement.
“Business Day” means any day, other than
a Saturday or Sunday, on which national banking institutions in
New York, New York, are open.
“Code” means the Internal Revenue Code
of 1986, as amended.
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“Common Stock” means the shares of
Common Stock, par value $0.01 per share, of the Company issued
on and after the date hereof and any additional shares of common
stock paid, issued or distributed in respect of any such shares
by way of a stock dividend, stock split or distribution, or in
connection with a combination of shares, recapitalization,
reorganization, merger or consolidation, or otherwise.
“Company” has the meaning given to that
term in the introductory paragraph hereof.
“control” has the meaning given to that
term under Rule 405 under the Securities Act (and
“controlled” and “controlling” shall have
correlative meanings).
“DBSI” has the meaning given that term
in the introductory paragraph hereof.
“Demand Registration” has the meaning
given to that term in Section 4.1 of this Agreement.
“Demanding Holders” has the meaning
given to that term in Section 4.1 of this Agreement.
“Effective Date” means each effective
date or deemed effective date under the Securities Act of any
Registration Statement or any post-effective amendment thereto.
“EPCA” has the meaning given that term
in the recitals hereof.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated by the SEC thereunder.
“Filing Date” means (a) with
respect to the Initial Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 00,
0000, (x) with respect to a Registration Statement to be
filed on
Form S-1
(or any applicable successor form), not later than 60 days
after receipt by the Company of a request for such Registration
Statement and (c) with respect to a Registration Statement
to be filed on
Form S-3
(or any applicable successor form), not later than 30 days
after receipt by the Company of a request for such Registration
Statement.
“Free Writing Prospectus” means a free
writing prospectus as defined in Rule 405 under the
Securities Act relating to the Registrable Securities included
in the applicable registration.
“Holder Shelf Offering” has the meaning
given to that term in Section 3.2(a) of this
Agreement.
“Holders” means the Investors
“Indemnified Person” has the meaning
given to that term in Section 8.3 of this Agreement.
“Indemnifying Person” has the meaning
given to that term in Section 8.3 of this Agreement.
“Initial Registration Statement” means
the Registration Statement on
Form S-3
to be filed by the Company pursuant to Rule 415 of the
Securities Act relating to the offer and sale of Registrable
Securities by the Holders from time to time.
“Investor” and
“Investors” have the meanings given to
those terms in the introductory paragraph hereof.
“Issuer Free Writing Prospectus” means
an issuer free writing prospectus as defined in Rule 433
under the Securities Act.
“Joinder Agreement” has the meaning
given to that term in Section 12.2 of this Agreement.
“Lock-Up” has the meaning given to that
term in Section 4.3(c) of this Agreement.
“Lock-Up Period” has the meaning given
to that term in Section 4.3(c) of this Agreement.
“Majority Selling Holders” means those
Selling Holders whose Registrable Securities included in a
specified registration represent a majority of the Registrable
Securities of all Selling Holders included therein.
“Material Adverse Effect” means a
material adverse effect on the business, results of operations,
properties, condition (financial or otherwise) of the Company
and its Subsidiaries, taken as a whole.
“NASD” has the meaning given to that
term in Section 7.1(m) of this Agreement.
“NASDAQ” means the NASDAQ Global Market.
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“NYSE” means the New York Stock Exchange.
“Officer’s Certificate” means a
certificate signed on behalf of the Company by either the Chief
Executive Officer or the Chief Financial Officer of the Company.
“Other Stockholders” means any Person
(other than the Holders) having rights to participate in a
registration of the Common Stock.
“Permitted Free Writing Prospectus” has
the meaning given to that term in Article VIII of
this Agreement.
“Person” means any individual,
corporation, general or limited partnership, limited liability
company, joint venture, trust or other entity or association,
including without limitation any governmental authority.
“Piggyback Notice” has the meaning given
to that term in Section 5.1 of this Agreement.
“Piggyback Registration” has the meaning
given to that term in Section 5.1 of this Agreement.
“Preliminary Prospectus” means each
prospectus included in a Registration Statement (and any
amendments thereto) before it becomes effective, any prospectus
filed with the SEC pursuant to Rule 424(a) under the
Securities Act and the prospectus included in the Registration
Statement, at the time of their effectiveness that omits the
information required by Rule 430 of the Securities Act.
“Principal Additional Investor
Agreement” has the meaning given to such term in
the recitals hereof.
“Prospectus” means the prospectus
relating to the Registrable Securities included in the
applicable Registration Statement, and any such prospectus as
supplemented by any and all prospectus supplements and as
amended by any and all amendments (including post-effective
amendments) and including all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
“Qualified Registrable Securities” means
at any time (a) shares of Common Stock purchased by a
Holder pursuant to the EPCA, the Principal Additional Investor
Agreement or any Additional Investor Agreement or held by an
Investor as of the date of this Agreement, and (b) any
additional shares of Common Stock paid, issued or distributed in
respect of any shares of the types described in clause (a)
of this definition by way of stock dividend, stock split or
distribution, or in connection with a combination of shares,
recapitalization, reorganization, merger or consolidation, or
otherwise; provided, however, that as to any
Qualified Registrable Securities, such securities shall cease to
constitute Qualified Registrable Securities upon the earliest to
occur of: (i) the date on which the securities are disposed
of pursuant to an effective registration statement under the
Securities Act; (ii) the date on which the securities are
disposed of pursuant to Rule 144 (or any successor
provision) under the Securities Act; and (iii) the date on
which the securities cease to be outstanding.
“Questionnaire” has the meaning given to
that term in Section 3.2(a) of this Agreement.
“Registrable Securities” means at any
time (a) shares of Common Stock purchased by a Holder
pursuant to the EPCA, the Principal Additional Investor
Agreement or any Additional Investor Agreement or held by an
Investor as of the date of this Agreement, (b) any other
shares of Common Stock held by any of the Holders now or at any
time in the future, and (c) any additional shares of Common
Stock held by a Holder paid, issued or distributed in respect of
any shares of the types described in clauses (a),
(b) and (c) of this definition by way of stock
dividend, stock split or distribution, or in connection with a
combination of shares, recapitalization, reorganization, merger
or consolidation, or otherwise; provided, however,
that as to any Registrable Securities, such securities shall
cease to constitute Registrable Securities upon the earliest to
occur of: (i) the date on which the securities are disposed
of pursuant to an effective registration statement under the
Securities Act; (ii) the date on which the securities are
disposed of pursuant to Rule 144 (or any successor
provision) under the Securities Act; and (iii) the date on
which the securities cease to be outstanding.
“Registration Expenses” has the meaning
given to that term in Section 7.4(a) of this
Agreement.
“Registration Statement” means any
registration statement of the Company under the Securities Act
that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the related Prospectus,
all amendments and supplements to such registration statement
(including post-effective
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amendments), and all exhibits and all materials incorporated by
reference or deemed to be incorporated by reference in such
registration statement.
“Required Period” means: (i) with
respect to the Initial Registration Statement, three years
following the first day of effectiveness of such Registration
Statement; and (ii) with respect to any other Registration
Statement, 270 days following the first day of
effectiveness of such Registration Statement, or with respect to
clauses (i) and (ii) such shorter period of time at
which all Registrable Securities registered pursuant to such
Registration Statement have been disposed of or no longer
constitute Registrable Securities.
“Rights Offering” shall have the meaning
given to such term in the EPCA.
“Rule 144” means Rule 144
promulgated under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
“SEC” means the United States Securities
and Exchange Commission and any successor United States federal
agency or governmental authority having similar powers.
“Securities Act” means the Securities
Act of 1933, as amended, and the rules and regulations
promulgated by the SEC thereunder.
“Selling Holder” means, with respect to
a specified registration pursuant to this Agreement, Holders
whose Registrable Securities are included in such registration.
“Selling Holder Information” has the
meaning given to that term in Section 3.2(a) of this
Agreement.
“SP” has the meaning given that term in
the introductory paragraph hereof.
“Underwritten Registration” or
“Underwritten Offering” means a
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
ARTICLE II
Representations
and Warranties of the Company
2.1 Representations and
Warranties. The Company represents and
warrants to each Investor as set forth below, as of the date
hereof, as of each Effective Date and during the period that any
Registration Statement is available for sales by the Investors
pursuant to the terms hereof as follows:
(a) Registration Statement, Preliminary Prospectus
and Prospectus. Each Registration Statement
or any post-effective amendment thereto, as of its Effective
Date, complied or will comply in all material respects with the
Securities Act, and did not or will not contain any 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 as of the applicable
filing date and at the time of delivery or deemed delivery of
each Prospectus and any amendment or supplement thereto, such
Prospectus did not and will not contain any 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. Each Issuer Free Writing Prospectus will comply in
all material respects with the Securities Act, will be filed in
accordance with the Securities Act (to the extent required
thereby) and, and at the time of filing or delivery when taken
together with the Preliminary Prospectus accompanying, or
delivered prior to delivery of, such Issuer Free Writing
Prospectus, and at the Effective Date did not or will not,
contain any 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. Each Preliminary Prospectus, at the time
of filing thereof and at the time of delivery or deemed
delivery, complied or will comply in all material respects with
the Securities Act and will not contain any 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. Notwithstanding the foregoing, the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance on and in conformity with information
relating to any Investor furnished to the Company in writing by
the Investor or the
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Additional Investors expressly for use in the Registration
Statement and the Prospectus and any amendment or supplement
thereto.
(b) Financial Statements. Except
as otherwise disclosed in the Registration Statement and the
Preliminary Prospectus or any documents incorporated therein by
reference, the financial statements and the related notes of the
Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and the
Preliminary Prospectus comply or will comply, as the case may
be, in all material respects with the applicable requirements of
the Securities Act and present fairly in all material respects
the financial position, results of operations and cash flows of
the Company and its subsidiaries as of the dates indicated and
for the periods specified; such financial statements have been
or will be prepared in conformity with U.S. generally
accepting accounting principles applied on a consistent basis
throughout the periods covered thereby, and the supporting
schedules included or incorporated by reference therein, present
fairly the information required to be stated therein; and the
other financial information included or incorporated by
reference in the Registration Statement and the Preliminary
Prospectus, has been or will be derived from the accounting
records of the Company and its subsidiaries and presents fairly
or will present fairly the information shown thereby; and any
pro forma financial information and the related
notes that may be included or incorporated by reference in the
Registration Statement and the Preliminary Prospectus, has been
or will be prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act, as
applicable, and the assumptions underlying such pro
forma financial information are or will be reasonable and
are or will be set forth in or incorporated by reference in the
Registration Statement and the Preliminary Prospectus.
ARTICLE III
Initial
Registration
3.1 Initial Registration
Statement. Subject to the terms and
conditions set forth in this Agreement, the Company has filed
the Initial Registration Statement with the SEC on the Filing
Date, and the Company shall use its commercially best efforts to
cause it to be declared effective by the SEC as promptly as
practicable thereafter, and in any event, prior to the closing
of the Rights Offering. Once the Initial Registration Statement
is declared effective by the SEC, the Company shall use its
commercially best efforts to cause the Initial Registration
Statement to remain continually effective, and supplemented and
amended throughout the Required Period. The Company’s
obligations under this Section 3.1 are subject to
the provisions of Article VI.
3.2 Initial Registration Procedures.
(a) During the Required Period, any Holder shall be
entitled, subject to the remainder of this
Section 3.2, to sell all or any part of the
Registrable Securities registered on behalf of such Holder
pursuant to the Initial Registration Statement (“Holder
Shelf Offering”). Notwithstanding any other provision
of this Agreement, no Holder may include any of its Registrable
Securities in a Holder Shelf Offering pursuant to this Agreement
unless the Holder shall provide to the Company a fully completed
notice and questionnaire in substantially the form set forth in
Exhibit A hereto (the
“Questionnaire”) and such other information in
writing as may be reasonably requested by the Company pursuant
to Section 7.2 (the “Selling Holder
Information”). In order to be named as a selling
securityholder in the Initial Registration Statement or
Prospectus at the time it initially becomes effective under the
Securities Act, each Holder must no later than three Business
Days prior to the Effective Date of the Initial Registration
Statement, which will be at least 20 days from the Filing
Date, furnish in writing the completed Questionnaire and such
other Selling Holder Information that the Company may reasonably
request in writing, if any, to the Company. The Company shall
use its reasonable best efforts to cause the Effective Date of
the Registration Statement to occur immediately prior to the
closing of the Rights Offering. The Company shall
(i) include in the Initial Registration Statement the
information from the completed Questionnaire and such other
Selling Holder Information, if any, received by the Company at
least three Business Days prior to the initial Effective Date of
the Initial Registration Statement and the Prospectus, as
necessary and (ii) in a manner so that upon such
effectiveness of the Initial Registration Statement the Holder
shall be named as a selling securityholder and be permitted to
deliver (or be deemed to deliver) such Prospectus to purchasers
of the Registrable Securities in accordance with applicable law.
From and after the date that the Initial Registration Statement
initially becomes effective, upon receipt of a completed
Questionnaire (including any updated Questionnaire) and such
other Selling
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Holder Information (including any updated Selling Holder
Information) that the Company may reasonably request in writing
(including any amendments to any prior Questionnaire or Selling
Holder Information), if any, but in any event within seven
Business Days after the Company receives the completed
Questionnaire and such other Selling Holder Information, if any,
the Company shall file any amendments or supplements to the
Initial Registration Statement or Prospectus or the documents
incorporated by reference therein necessary for such Holder to
be named as a selling securityholder and permit such Holder to
deliver (or be deemed to deliver) the Prospectus to purchasers
of the Registrable Securities (subject to the Company’s
rights during a Blackout Period). Holders that do not deliver a
completed written Questionnaire and such other information, as
provided for in this Section 3.2(a), shall not be
named as selling securityholders in the Prospectus until such
Holder delivers such information and the appropriate notice and
other periods called for by this Agreement shall have elapsed.
If the Company shall file a post-effective amendment to the
Initial Registration Statement, it shall use commercially
reasonable efforts to cause such post-effective amendment to be
declared effective under the Securities Act as promptly as is
reasonably practicable and notify such Holder as promptly as
practicable after the effectiveness under the Securities Act of
any post-effective amendment filed pursuant to this
Article III. If such Selling Holder Information is
delivered during a Blackout Period, the Company shall so inform
the Holder delivering such Selling Holder Informa tion and shall
take the actions set forth in this Section 3.2(a)
upon expiration of the Blackout Period as though such
Holder’s Selling Holder Information had been delivered on
the expiration date of such Blackout Period.
ARTICLE IV
Demand
Registration
4.1 Right to Demand Registration.
(a) If the Initial Registration Statement under
Article III is no longer effective, subject to the
remainder of Section 4.1(b), at any time and from
time to time, (x) DBSI, provided that it
“beneficially owns” (as such term is defined
under and determined pursuant to
Rule 13d-3
under the Exchange Act) 15% or more of the outstanding shares of
the Common Stock of the Company, may request in writing that the
Company effect the registration of all or part of its
Registrable Securities, (y) SP, provided that it
beneficially owns 15% or more of the outstanding shares of the
Common Stock of the Company, may request in writing that the
Company effect the registration of all or part of its
Registrable Securities, and (z) any Holder or group of
Holders (excluding DBSI and SP) representing at least
331/3%
of all Qualified Registrable Securities then outstanding and
provided that such Holder or group of Holders beneficially own,
in the aggregate 15% or more of the outstanding shares of Common
Stock of the Company, may request in writing (the
“Demanding Holders”) that the Company effect
the registration (a “Demand Registration”) of
all or part of such Demanding Holder’s or Holders’
Registrable Securities with the SEC under and in accordance with
the provisions of the Securities Act (which written request
shall be addressed to the Secretary of the Company, shall state
that the request is for a Demand Registration pursuant to this
Section 4.1 and shall specify (i) the then
current name and address of such Demanding Holder or Holders,
(ii) the aggregate number of shares of Registrable
Securities requested to be registered in such registration by
such Holder or group of Holders, (iii) the total number of
shares of Common Stock then held by such Demanding Holder or
Holders, and (iv) the intended means of distribution). The
Company shall notify each other Holder of such request (by
delivering a copy of such request to each such other Holder) for
registration and each other Holder may, by written notice to the
Company given no later than 10 Business Days after the
Company’s notice is given to such Holder (which notice
shall specify (i) the then-current name and address of the
Holder, (ii) the aggregate number of shares of Registrable
Securities requested to be registered in such registration by
such Holder or group of Holders, and (iii) the total number
of shares of Common Stock then held by such Holder), request
that all or a part of such Holder’s Registrable Securities
be included in such registration. The Company shall file a
Registration Statement covering such Demanding Holder’s or
Holders’ Registrable Securities requested to be registered
as promptly as practicable (and, in any event, by the applicable
Filing Date) after receipt of such request; provided,
however, that the Company shall not be required to take
any action pursuant to this Article IV:
(i) (A) with respect to any request for registration
by DBSI pursuant to Section 4.1(a)(x), if prior to
the date of such request, the Company has effected at the
request of DBSI a total of two registrations in the aggregate
pursuant to Section 4.1(a)(iv) or
Section 4.1(a)(v) or one registration at the request
of DBSI within
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the 15-month
period preceding the date of the request, (B) with respect
to any request for registration by SP pursuant to
Section 4.1(a)(y), if prior to the date of such
request, the Company has effected at the request of SP a total
of two registrations in the aggregate pursuant to
Section 4.1(a)(iv) or Section 4.1(a)(v)
or one registration at the request of SP within the
15-month
period preceding the date of the request, or (C) with
respect to any request for registration by any Holder or group
of Holders (excluding DBSI and SP) pursuant to
Section 4.1(a)(z), if prior to the date of such
request, the Company has effected at the request of any Holder
or group of Holders, four registrations in the aggregate
pursuant to Section 4.1(a)(iv) or
Section 4.1(a)(v) or one registration at the request
of such Holder or group of Holders within the
15-month
period preceding the date of the request; provided,
however, that under no circumstances shall the Company be
required to effect more than four Demand Registrations;
(ii) if within the
12-month
period preceding such request the Company has effected one
Demand Registration;
(iii) if within the
6-month
period preceding such Demand Registration the effectiveness of a
Registration Statement under this Section 4.1(a)
shall have terminated;
(iv) in the case of a non-Underwritten Offering, unless the
Registrable Securities requested to be registered (A) have
an aggregate then-current market value, including (x) in
the case of a Demand Registration by DBSI or SP, Registrable
Securities of other Holders which such Holders have agreed to
include in such Demand Registration and (y) in the case of
a Demand Registration by other Holders, Registrable Securities
of DBSI
and/or SP
which DBSI
and/or SP
have agreed to include in such Demand Registration, of
$25.0 million or more (before deducting underwriting
discounts and commission) or (B) constitute all of the
then-outstanding Registrable Securities held by DBSI or SP, or
the Demanding Holders or Holders;
(v) in the case of an Underwritten Offering, unless the
Registrable Securities requested to be registered have an
aggregate then-current market value at the time of the request
for a Demand Registration, including (x) in the case of a
Demand Registration by DBSI or SP, Registrable Securities of
other Holders which such Holders have agreed to include in such
Demand Registration and (y) in the case of a Demand
Registration by other Holders, Registrable Securities of DBSI
and/or SP
which DBSI
and/or SP
have agreed to include in such Demand Registration, of
$50.0 million or more (before deducting underwriting
discounts and commissions); or
(vi) during the pendency of any Blackout Period.
(b) If at anytime there is no Company
“shelf” Registration Statement outstanding with
respect to Registrable Securities, the Demanding Holder or
Holders making such request hereunder may specify that the
requested registration be a “shelf
registration” for an offering on a delayed or
continuous basis pursuant to Rule 415 under the Securities
Act; provided, that the Company shall not be required to
maintain the effectiveness of any such registration statement
for more than the Required Period.
(c) A Demand Registration requested pursuant to this
Section 4.1 shall not be deemed to be effected by
the Company for purposes of Section 4.1 if it has
not (i) been declared effective by the SEC or
(ii) become effective in accordance with the Securities Act
and kept effective as contemplated by Section 4.2,
subject to any Blackout Periods. If the Company shall have
complied with its obligations under this Agreement, a right to a
Demand Registration pursuant to this Section 4.1
shall be deemed to have been satisfied upon the earlier of
(x) the date as of which all of the Registrable Securities
included therein shall have been disposed of pursuant to the
Registration Statement, and (y) the date as of which such
Demand Registration shall have been continuously effective (and
not subject to any stop order, injunction or other similar order
or requirement of the SEC) for the Required Period, subject to
any Blackout Periods.
(d) In the event that more than one written request for a
Demand Registration pursuant to Section 4.1 is
received by the Company on the same day, the Holder(s) making
the request that represents the largest number of shares of
Common Stock shall be deemed to be the Demanding Holder(s) (or
demanding holder).
4.2 Continuous Effectiveness of Registration
Statement.
(a) The Company shall use its reasonable best efforts to
keep a Registration Statement that has become effective as
contemplated by Article III and this
Article IV continuously effective, and not subject
to any stop order,
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injunction or other similar order or requirement of the SEC,
until the earlier of (1) the expiration of the Required
Period (subject to extension pursuant to
Section 4.2(b) or Section 7.3) or
(2) the date on which all Registrable Securities covered by
such Registration Statement shall (A) have been disposed of
pursuant to such Registration Statement or (B) cease to be
Registrable Securities; provided, however, that in
no event shall such period expire prior to the expiration of the
applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 promulgated thereunder.
(b) In the event of any stop order, injunction or other
similar order or requirement of the SEC relating to any
Registration Statement or any Blackout Period, the Required
Period for such Registration Statement shall be extended by the
number of days during which such stop order, injunction or
similar order or requirement or Blackout Period is in effect.
4.3 Underwritten Demand Registration.
(a) In the event that a Demand Registration requested
pursuant to Section 4.1 is to be an Underwritten
Registration, (i) DBSI, in the case of a registration being
required pursuant to Section 4.1(a)(x), and SP, in
the case of a registration being required pursuant to
Section 4.1(a)(y), shall in its reasonable
discretion and with the consent of the Company (which consent
shall not be unreasonably withheld) select an investment banking
firm of national standing to be the managing underwriter for the
Underwritten Offering relating thereto and (ii) if the
registration is being requested pursuant to
Section 4.1(a)(z), then the Majority Selling Holders
of the Registrable Securities to be included in the Underwritten
Offering shall in their reasonable discretion and with the
consent of the Company (which consent shall not be unreasonably
withheld) select an investment banking firm of national standing
to be the managing underwriter for the Underwritten Offering
relating thereto, provided, however, that in selecting the
managing underwriting for any such offerings, DBSI, SP or the
Majority Selling Holder, as the case may be, shall give due
consideration in their sole discretion to any investment baking
firms recommended by the Company.
(b) If so requested (pursuant to a timely written notice)
by the managing underwriter for the Underwritten Offering
relating thereto, the Company shall not effect any underwritten
public sale or distribution of any securities for its own
account or the account of any Person not a party hereto that are
the same as, or similar to, the Registrable Securities, or any
securities convertible into, or exchangeable or exercisable for,
any securities of the Company that are the same as, or similar
to, the Registrable Securities, during the
15-day
period prior to, and during the
90-day
period after, the date a Registration Statement for such
Underwritten Offering becomes effective (or if later, the date
of pricing of the Underwritten Offering), as specified by the
managing underwriter.
(c) If and to the extent requested by the managing
underwriter for any Underwritten Offering pursuant to a demand
registration hereunder, each Holder who beneficially owns 5% or
more of the outstanding shares of Common Stock that is a party
to this Agreement shall agree with such managing underwriter
(such agreement, a “Lock-Up”), for a period
(the ”Lock-Up Period”) beginning on a date not
earlier than five Business Days prior to the date of pricing of
such Underwritten Offering and ending not later than
90 days after the date of such pricing, to the effect that
such Holder shall not directly or indirectly (i) offer,
pledge, sell, contract to sell, grant any options for the sale
of, seek the redemption of or otherwise transfer or dispose of
(including pursuant to a registration statement) any shares of
Common Stock (or securities exchangeable or exercisable for any
shares of Common Stock) held by such Holder, (ii) enter
into a transaction which would have the same effect, or enter
into any swap, hedge or other arrangement that transfers, in
whole or in part, any of the economic consequences of ownership
of the shares of Common Stock held by such Holder, whether any
such aforementioned transaction is to be settled by delivery of
shares of Common Stock or such other securities, in cash or
otherwise, or (iii) publicly disclose the intention to make
any such offer, sale, pledge, transfer or disposition, or to
enter into any such transaction, swap, hedge or other
arrangement, so long as the directors and executive officers of
the Company agree to such limits, except for any Holder that,
not later than 5 days following receipt of written notice
from the Company that the Company will be filing a Registration
Statement within 15 days of such notice pursuant to a
Demand Registration with respect to an Underwritten Offering,
shall have irrevocably agreed by delivery of written notice to
the Company to terminate all of its rights under this Agreement,
including under any outstanding shelf Registration Statement;
provided, that neither this Section 4.3(c)
nor any
Lock-Up
shall prohibit a Holder from exercising rights or complying with
agreements entered into by such Holder prior to the commencement
of such
Lock-Up
Period; and provided further, that with respect to
any Holder that is a broker-dealer or an affiliate of a
broker-dealer, the provisions of any
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Lock-Up
shall not apply to any transactions effected for or on behalf of
any bona fide customer or client of such Holder (other than a
customer or client who is a beneficial owner of the Registrable
Securities held by such Holder).
4.4 Priority on Demand Registrations.
(a) No securities to be sold for the account of any Person
(including the Company) other than a Holder shall be included in
a Demand Registration pursuant to Section 4.1 if, in
the case that such registration is to be an Underwritten
Registration, the managing underwriter of the Underwritten
Offering relating thereto advises the Demanding Holders (or, in
the case that such registration is not to be an Underwritten
Registration, the Demanding Holders requesting registration
determine in good faith) that the total amount of Registrable
Securities requested to be registered is such as to adversely
affect the successful marketing (including the pricing) of the
securities included in such offering, then the Company shall
include in such registration all Registrable Securities
requested to be included therein, up to the full amount that, in
the view of such managing underwriter or such Demanding Holders
requesting registration, as the case may be, can be sold without
adversely affecting the success of such offering, before
including any securities of any Person (including the Company)
other than the Demanding Holders and the other Holders. If the
number of shares to be included in any such offering is less
than the aggregate number of Qualified Registrable Securities
requested by Demanding Holders and the other Holders to be
included therein, then the Registrable Securities to be included
in such offering shall be allocated pro rata among such
Demanding Holders and the other Holders on the basis of the
number of Qualified Registrable Securities requested by
Demanding Holders and the other Holders to be included therein.
(b) Notwithstanding the foregoing, if, as a result of such
pro-ration, the Demanding Holder or Holders shall not be
entitled to include in a registration all Registrable Securities
of the class that such Demanding Holder or Holders had requested
to be included, then any Demanding Holder or group of Demanding
Holders representing a majority of the number of Registrable
Securities of Demanding Holders may elect to withdraw such
request to include such Registrable Securities in such Demand
Registration and reimburse the Company for all
out-of-pocket
costs incurred in connection therewith (in which case such
Demand Registration shall not count as a registration in
accordance with Section 4.1(a)(i), (ii),
(iii), (iv) or (v)).
4.5 Revocation of Demand Registration.
(a) (i) DBSI, if a registration is requested pursuant
to Section 4.1(a)(x), (ii) SP, if a
registration is requested pursuant to
Section 4.1(a)(y), or (iii) the Holders of at
least a majority of the Registrable Securities to be included in
a Registration Statement pursuant to Section 4.1, if
a registration is requested pursuant to
Section 4.1(a)(y), may, at any time prior to the
Effective Date of the Registration Statement relating to such
registration, revoke their request to have Registrable
Securities included therein by providing a written notice to the
Company and, if the Company receives such written notice,
subject to Section 4.5(b), it shall not cause such
Registration Statement to become effective under the Securities
Act.
(b) Notwithstanding Section 4.5(a) above, in
the event DBSI, SP or such Holders of Registrable Securities
(excluding DBSI or SP, as the case may be) revoke their request
pursuant to Section 4.5(a), at the election of DBSI,
SP or such Holders, as the case may be, either (a) the
Holders of Registrable Securities who revoke such request shall
reimburse the Company for all of its
out-of-pocket
expenses incurred in the preparation, filing and processing of
the Registration Statement or (b) the requested
registration that has been revoked shall be deemed to have been
effected for purposes of Section 4.1.
4.6 Withdrawal by the Holders.
(a) If (a) a Blackout Period occurs after a request
for a Demand Registration pursuant to Section 4.1
hereof but before the Registrable Securities of the Demanding
Holder or Holders covered by such request are sold, transferred,
exchanged or disposed of in accordance with such request,
(b) the Demanding Holder or Holders requesting such Demand
Registration are not entitled to include all of such Registrable
Securities requested by such Demanding Holder or Holders in any
offering, or (c) the Company has breached its obligations
hereunder, then in any of such cases the Demanding Holder or
Holders requesting such registration may elect to withdraw from
or revoke such offering by giving written notice to the Company
and the underwriter, to the extent applicable, of such Demanding
Holder’s or Holders’ request to withdraw or revoke
prior to the effectiveness of the Registration Statement filed
with the SEC with respect to such Demand Registration. If the
Holder or Holders requesting such registration withdraw
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from or revoke the proposed offering relating to a Demand
Registration in accordance with the previous sentence, then
(x) such Holders shall have no further rights to include
their Registrable Securities in such Demand Registration,
(y) the Company shall cease all efforts to secure
registration, and (z) in the case of clause (a) or
(c) above, the Company shall reimburse such Holder or
Holders for all of their
out-of-pocket
expenses incurred in connection with such cancelled registration
through the date of the written notice of withdrawal or
revocation; provided, however, that any such
Demand Registration Statement withdrawn or revoked by the
Demanding Holder or Holders shall not affect the calculations
under Section 4.1(a)(i), (ii), (iii),
(iv) or (v).
ARTICLE V
Piggyback
Registration
5.1 Right to Piggyback. If the
Company at any time proposes to file a registration statement
under the Securities Act with respect to an offering of any of
its Common Stock (other than a registration statement
(a) on
Form S-8
or any successor form thereto, (b) on
Form S-4
or any successor form thereto or (c) relating solely to a
transaction under Rule 145 under the Securities Act),
whether or not for its own account, on a form that would permit
registration of Registrable Securities for sale to the public
under the Securities Act, then the Company shall give prompt
written notice (the “Piggyback Notice”) of such
proposed filing to each Holder that beneficially owns 15% or
more of the Common Stock of the Company at least 10 Business
Days before the anticipated filing date. The Piggyback Notice
shall include the number of shares of Common Stock proposed to
be registered, the proposed date of filing of such registration
statement, any proposed means of distribution, any proposed
managing underwriter and a good faith estimate by the Company of
the proposed maximum offering price as such price is proposed to
appear on the facing page of such registration statement.
Subject to Section 5.2, the Company shall use its
reasonable best efforts to register such amount of Registrable
Securities as each such Holder that beneficially owns 15% or
more of the Common Stock of the Company may specify on the same
terms and conditions as the registration of the Company’s
or Other Stockholders’ securities, as the case may be (a
“Piggyback Registration”). The Company shall
use its reasonable best efforts to include in such Piggyback
Registration all Registrable Securities for which the Company
has received written requests for inclusion within 5 Business
Days after delivery of the Piggyback Notice, subject to
Section 5.2 and
Section 7.2. The Company’s
obligations under this Section 5.1 are subject to
the provisions of Article VI.
5.2 Priority on Piggyback
Registrations. If the Piggyback Registration
is an Underwritten Offering, the Company shall use its
reasonable best efforts to cause the managing underwriter of
that proposed offering to permit the Holders that have requested
Registrable Securities to be included in the Piggyback
Registration to include all such Registrable Securities on the
same terms and conditions as the registration of the
Company’s securities. Notwithstanding the foregoing, if the
managing underwriter of such Underwritten Offering advises the
Company and the Selling Holders in writing that, in its view,
the total amount of shares of Common Stock that the Company,
such Holders and any Other Stockholders propose to include in
such offering is such as to adversely affect the successful
marketing (including the pricing) of the securities included in
such Underwritten Offering, then:
(i) if such Piggyback Registration is a primary
registration by the Company for its own account, the Company
shall include in such Piggyback Registration: (A) first, up
to the full amount of securities to be offered by the Company;
(B) second, up to the full amount of Qualified Registrable
Securities requested to be included in such Piggyback
Registration by the Holders pursuant to Section 5.1
hereof, allocated pro rata among the participating Holders, on
the basis of the number of Registrable Securities requested to
be included therein by each such Holder; (C) third, up to
the full amount of any other Registrable Securities held by any
Holders requested to be included therein allocated pro rata
among the Holders participating in such Piggyback Registration,
on the basis of the number of Registrable Securities requested
to be included therein by each such Holder; and (D) fourth,
up to the full amount of securities requested to be included in
such Piggyback Registration by any Other Stockholders in
accordance with the priorities, if any, then existing among the
Company and the Other Stockholders so that the total amount of
securities to be included in such Underwritten Offering is the
full amount that, in the view of such managing underwriter, can
be sold without adversely affecting the successful marketing
(including pricing) of the securities included in such
Underwritten Offering; and
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(ii) if such Piggyback Registration is an underwritten
secondary registration for the account of holders of securities
of the Company, the Company shall include in such registration:
(A) first, up to the full amount of securities of the
Persons exercising “demand” registration rights
requested to be included therein; (B) second, up to the
full amount of Qualified Registrable Securities requested to be
included in such Piggyback Registration by the participating
Holders pursuant to Section 5.1 hereof, allocated
pro rata among such Holders on the basis of the number of
Registrable Securities requested to be included herein by each
such Holder; (C) third, up to a full amount of any other
Registrable Securities held by any Holders requested to be
included therein allocated pro rata among the Holders
participating in such Piggyback Registration, on the basis of
the number of Registrable Securities requested to be included
herein by each such Holder; (D) fourth, up to the full
amount of securities proposed to be included in the registration
by the Company; and (E) fifth, up to the full amount of
securities requested to be included in such Piggyback
Registration by the Other Stockholders in accordance with the
priorities, if any, then existing among the Company and the
Other Stockholders so that the total amount of securities to be
included in such Underwritten Offering is the full amount that,
in the view of such managing underwriter, can be sold without
adversely affecting the success of such Underwritten Offering.
5.3 Withdrawal of Piggyback Registration.
(a) If at any time after giving the Piggyback Notice and
prior to the effective date of the Registration Statement filed
in connection with the Piggyback Registration, the Company
determines for any reason not to register or to delay the
Piggyback Registration, the Company may, at its election, give
notice of its determination to all Holders, and in the case of a
determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection
with the abandoned Piggyback Registration, without prejudice,
provided, however, that such Registration
Statement shall not be counted for purposes of
Section 4.1.
(b) Any Holder of Registrable Securities requesting to be
included in a Piggyback Registration may withdraw its request
for inclusion by giving written notice to the Company of its
intention to withdraw from that registration, provided,
however, that (i) the Holder’s request shall be
made in writing and (ii) the withdrawal shall be
irrevocable and, after making the withdrawal, a Holder shall no
longer have any right to include its Registrable Securities in
that Piggyback Registration.
(c) An election by the Company to withdraw a Piggyback
Registration under this Section 5.3 shall not be
deemed to be a breach of the Company’s obligations with
respect to such Piggyback Registration.
ARTICLE VI
Blackout
Period and Hold-Back
6.1 Initial Registration, Demand and Piggyback
Blackout. Notwithstanding any other provision
of this Agreement to the contrary, if the Board of Directors of
the Company determines in good faith that the registration and
distribution of Registrable Securities (a) would materially
impede, delay or interfere with, or require premature disclosure
of, any material financing, offering, acquisition, merger,
corporate reorganization or other significant transaction or any
negotiations, discussions or pending proposals with respect
thereto, involving the Company or any of its Subsidiaries, or
(b) would require disclosure of non-public material
information, the disclosure of which would materially and
adversely affect the Company, the Company shall (i) be
entitled to postpone the preparation, filing or effectiveness or
suspend the effectiveness of a Registration Statement
and/or the
use of any resale Prospectus for a reasonable period of time not
to exceed 60 days and (ii) promptly give the Holders
written notice of such postponement or suspension (which notice
need not specify the nature of the event giving rise to such
suspension); provided, however, that the Company
shall not be permitted under any circumstances to delay the
filing or effectiveness of the Initial Registration Statement.
6.2 Blackout Period
Limits. Notwithstanding anything contained in
this Article V to the contrary, the Company shall
not be entitled to more than two Blackout Periods during any
consecutive
12-month
period, and in no event shall the number of days included in all
Blackout Periods during any consecutive
12-month
period exceed an aggregate of 90 days and in no event shall
the Company be entitled to postpone the preparation, filing or
effectiveness or suspend the effectiveness of a Registration
Statement
and/or the
use of any resale Prospectus
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included in a Registration Statement pursuant to this
Article VI unless it postpones or suspends during
the Blackout Period the effectiveness of any registration
statements required pursuant to the registration rights of the
Other Stockholders; provided, however, that
notwithstanding anything contained in this Agreement to the
contrary, the Company shall not effect any Blackout Period
during the
90-day
period subsequent to the closing of the Rights Offering. In the
event of the occurrence of any Blackout Period during any
Required Period, the Required Period shall be extended by the
number of days during which such Blackout Period is in effect.
6.3 Hold-Back. Each Investor
agrees not to effect any sale or distribution of securities of
the Company under any Registration Statement or otherwise into
the public market, during the period commencing on the date the
Company notifies each Investor that it reasonably expects a
Registration Statement with respect to an offering to become
effective within 15 days, and ending 90 days after the
effective date of the Registration Statement for such offering,
or if such Registration Statement fails to go effective within
15 days after the date of such notice, ending on the
15th day after such notice, but commencing again on the
date such Registration Statement is declared effective by the
SEC and ending 90 days after the effective date of such
Registration Statement. The foregoing provision shall not
restrict the rights of each Investor to include Registrable
Securities in any Registration Statement pursuant to
Article V. Notwithstanding, the
foregoing, the Company shall not be permitted to provide a
notice pursuant to this Section 6.3 more than one
time in any
15-month
period.
ARTICLE VII
Procedures
and Expenses
7.1 Registration Procedures. In
connection with the Company’s registration obligations
pursuant to Articles III, IV and V,
the Company shall use its commercially best efforts to effect
such registrations to permit the sale of Registrable Securities
by a Selling Holder in accordance with the intended method or
methods of disposition thereof, and pursuant thereto the Company
shall as promptly as reasonably practicable:
(a) prepare and file with the SEC a Registration Statement
on an appropriate form under the Securities Act available for
the sale of the Registrable Securities by the Selling Holders in
accordance with the intended method or methods of distribution
thereof; provided, however, that the Company shall
(i) before filing, furnish to one firm of counsel for the
Selling Holders (selected by (A) DBSI with respect to the
Initial Registration Statement or if DBSI requests a
registration pursuant to Section 4.1(a)(x),
(B) SP if SP requests a registration pursuant to
Section 4.1(a)(y), or (C) by a Majority of the
Majority Selling Holders in connection with a request pursuant
to Section 4.1(a)(z) or a Piggyback Registration)
and the managing underwriter, if any, within a reasonable period
of time (but in any event within three Business Days) prior to
the filing thereof with the SEC to afford to such counsel, the
Selling Holders, the managing underwriter and its counsel a
reasonable opportunity for review, copies of the Registration
Statement or Prospectus proposed to be filed, and
(ii) consider in good faith such written comments as such
counsel to the Selling Holders and the managing underwriter may
reasonably propose;
(b) furnish, at its expense, to the Selling Holders such
number of conformed copies of the Registration Statement and
each amendment thereto, of the Prospectus and each supplement
thereto, and of such other documents as the Selling Holders
reasonably may request in writing from time to time;
(c) subject to Section 4.2 and
Article VI, prepare and file with the SEC any
amendments and post-effective amendments to the Registration
Statement as may be necessary and any supplements to the
Prospectus as may be required or appropriate, in the view of the
Company and its counsel, by the rules, regulations or
instructions applicable to the registration form used by the
Company or by the Securities Act to keep the Registration
Statement effective until the earlier of (i) such time as
all shares of Common Stock covered by the Registration Statement
cease to be Registrable Securities and (ii) the termination
of the Required Period (giving effect to any extensions thereof
pursuant to Section 4.2(b), Section 6.2
or Section 7.3);
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(d) promptly following its actual knowledge thereof (but in
any event within two Business Days), notify the Selling Holders
and the managing underwriter, in writing, if any:
(i) when a Registration Statement, Prospectus, Issuer Free
Writing Prospectus or any supplement or amendment has been filed
and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective;
(ii) of any request by the SEC or any other governmental
authority for amendments or supplements to a Registration
Statement, Prospectus or Issuer Free Writing Prospectus or for
additional information;
(iii) of the issuance by the SEC or any other governmental
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for
that purpose;
(iv) of the receipt by the Company of any written
notification with respect to the suspension of the qualification
or exemption from qualification of the Registrable Securities
for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose;
(v) of the occurrence of any event during the period a
Registration Statement is effective which makes any statement
made in the Registration Statement or the Prospectus or any
Issuer Free Writing Prospectus untrue in any material respect or
which requires the making of any changes in such Registration
Statement, Prospectus or Issuer Free Writing Prospectus so that
such Registration Statement, Prospectus or Issuer Free Writing
Prospectus shall not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading (provided, however, that no notice by
the Company shall be required pursuant to this
Section 7.1(d)(v) in the event that the Company
either promptly files a Prospectus supplement to update the
Prospectus or an appropriate Exchange Act report that is
incorporated by reference into the Registration Statement,
which, in either case, contains the requisite information that
results in such Registration Statement no longer containing any
untrue statement of a material fact or omitting to state a
material fact necessary to make the statements therein in light
of the circumstances under which they were made, not
misleading); and
(vi) of the Company’s reasonable determination that a
post-effective amendment to a Registration Statement would be
required by applicable law (in which case the Company shall file
the same as soon as practicable after such determination and use
its reasonable best efforts to cause the same to become
effective as soon as practicable following filing);
(e) use its reasonable best efforts to prevent the issuance
of or obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement, or the lifting of any
suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable date or, if any such
order or suspension is made effective during any Blackout
Period, at the earliest practicable date after the Blackout
Period;
(f) prior to any public offering of Registrable Securities,
use reasonable best efforts to register or qualify, or cooperate
with the Majority Selling Holders, or counsel retained by the
Selling Holders’ in accordance with
Section 7.4, the managing underwriter, if any, and
its counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities
or blue sky laws of such jurisdictions within the United States
as such counsel for the Selling Holders covered by a shelf
Registration Statement or the managing underwriter of an
Underwritten Offering of Registrable Securities reasonably
requests in writing and do such other acts and things as may be
reasonably necessary to maintain each such registration or
qualification (or exemption therefrom) effective during the
Required Period for such Registration Statement;
provided, however, that the Company shall not be
required to qualify generally to do business or as a dealer in
securities in any jurisdiction in which it is not then so
qualified or take any action which would subject it to general
service of process or taxation in any jurisdiction in which it
is not then so subject;
(g) subject to Section 4.2 and
Article VI, as promptly as reasonably practicable
after the occurrence of any event contemplated by
Sections 7.1(d)(v) or 7.1(d)(vi) hereof, use
its reasonable best efforts to prepare (and furnish at its
expense, subject to any notice by the Company in accordance with
Section 7.1(d), to the Selling Holders a
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reasonable number of copies of) a supplement or post-effective
amendment to the applicable Registration Statement or a
supplement to the related Prospectus (including by means of an
Issuer Free Writing Prospectus), or file any other required
document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder, such
Prospectus or Issuer Free Writing Prospectus shall not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under
which they were made, not misleading;
(h) enter into such agreements (including an underwriting
agreement), in usual and customary form, and take such other
actions as may be reasonably requested by the Selling Holders or
the managing underwriter, if any, to expedite the offer for sale
or disposition of the Registrable Securities, and in connection
therewith, upon such request and upon the date of closing of any
sale of Registrable Securities in such Underwritten Registration:
(i) subject to the Selling Holders to whom the comfort
letter is addressed providing a customary representation letter
to the independent registered public accounting firm of the
Company in form and substance reasonably satisfactory to such
accountants, use its reasonable best efforts to obtain customary
“comfort” letters from such accountants (to the
extent deliverable in accordance with their professional
standards) addressed to the Selling Holder (to the extent
consistent with Statement on Auditing Standards No. 100 of
the American Institute of Certified Public Accountants) and the
managing underwriter, if any, in customary form and covering
matters of the type customarily covered in
“comfort” letters in connection with
Underwritten Offerings;
(ii) use its reasonable best efforts to obtain opinions of
counsel to the Company (such counsel being reasonably
satisfactory to the managing underwriter, if any) and updates
thereof covering matters customarily covered in opinions of
counsel in connection with Underwritten Offerings, addressed to
each Selling Holder and the managing underwriter,
provided, that the delivery of any
“10b-5 statement”
may be conditioned on the prior or concurrent delivery of a
comfort letter pursuant to
subsection (i) above; and
(iii) provide officers’ certificates and other
customary closing documents customarily delivered in connection
with Underwritten Offerings and reasonably requested by the
managing underwriter, if any;
provided that the Company shall only be required to
comply with this clause (h): in connection with
(x) the Effective Date of the Initial Registration
Statement, (y) upon five (5) Business Day’s prior
written notice of a proposed sale of Registrable Securities
other than pursuant to an Underwritten Offering, and (z) an
Underwritten Offering; provided, further, that the
Company shall not be required to comply with clause (h)
pursuant to subsection (y) and (z) more than
twice in any consecutive twelve month period.
(i) upon reasonable notice and at reasonable times during
normal business hours, make reasonably available for inspection
by a representative of each Selling Holder, one firm of counsel
for the Selling Holders retained in accordance with
Section 7.4, the managing underwriter, if any,
participating in any disposition of Registrable Securities and
its counsel and any single accountant retained by any Selling
Holder or any such underwriter, all financial and other records,
pertinent corporate documents and properties (including site
visits) of the Company, and cause the appropriate officers,
directors and employees of the Company to be available to
respond to questions and to make reasonably available for such
inspection all such relevant information reasonably requested in
writing by them in connection with the Registration Statement,
each of the foregoing, as is customary for “due
diligence” investigations; provided,
however, that prior to the closing of the Rights
Offering, that certain confidentiality agreement, dated
February 27, 2007 signed by DBSI and that certain
confidentiality agreement, dated February 27, 2007 signed
by SP, shall govern such information, and after the closing of
the Rights Offering any such Persons shall first enter into a
confidentiality agreement with the Company providing that any
information that is reasonably designated by the Company as
confidential at the time of delivery shall be kept confidential
by such Persons and shall be used solely for the purposes of
exercising rights under this Agreement and such Persons shall
not engage in trading any securities of the Company until such
material non-public information becomes properly available,
except nothing in such writing shall restrict
(i) disclosure of such information if it is required by
court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) disclosure of
such information if it is required by law (including any
disclosure requirements pursuant to federal or state securities
laws in connection with any disposition of Registrable
Securities), (iii) sharing information with other
underwriters, agents or dealers participating in the disposition
of any Registrable Securities, subject to the execution by such
other
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underwriters, agents or dealers of reasonable non-disclosure
agreements with the Company, (iv) using any such documents
or other information in investigating or defending itself
against claims made or threatened by purchasers, regulatory
authorities or others in connection with the disposition of any
Registrable Securities, (v) disclosure of such information
if it becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by any such
Person or (vi) disclosure of such information if it becomes
available to any such Person from a source other than the
Company and such source is not bound by a confidentiality
agreement or confidentiality obligations or duties; and
provided, further, that the foregoing inspection
and information gathering shall, to the greatest extent
possible, be coordinated on behalf of all the Selling Holders
and the other parties entitled thereto by the counsel to the
Selling Holders retained in accordance with
Section 7.4 or the counsel to the managing
underwriter; and provided, further, that after the
closing of the Rights Offering, the rights granted pursuant to
this subsection may only be used in connection with a
registration set forth in the proviso to
Section 7.1(h) and subject to the limitations on
frequency set forth therein;
(j) use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC relating to such
registration and make generally available to its securityholders
earning statements satisfying the provisions of
Section 11(a) of the Securities Act; provided
that the Company shall be deemed to have complied with this
Section 7.1(j) if it has satisfied the provisions of
Rule 158 under the Securities Act (or any similar rule
promulgated under the Securities Act);
(k) use reasonable best efforts to cause all Registrable
Securities covered by the applicable Registration Statement if
the Common Stock is then listed on the NYSE or quoted on the
NASDAQ to continue to be so listed or quoted following the
offering;
(l) use reasonable best efforts to procure the cooperation
of the Company’s transfer agent in settling any offering or
sale of Registrable Securities;
(m) the Company shall use its reasonable best efforts to
provide such information as may be reasonably required for any
filings required to be made by the Selling Holders or managing
underwriter, if any, with the National Association of Securities
Dealers, Inc. (the “NASD”) in connection with
the offering under any Registration Statement of the Registrable
Securities (including, without limitation, such as may be
required by NASD Rule 2710 or 2720), and, upon the written
request of the Majority Selling Holders, shall use reasonable
best efforts to cooperate in connection with any filings
required to be made with the NASD in that regard on or prior to
the filing of any Registration Statement; and
(n) use reasonable best efforts to have officers of the
Company attend “road shows” for Underwritten
Offerings and analyst or investor presentations and such other
selling or informational activities as are customary for
transactions similar to the planned disposition of securities
requested by the Majority Selling Holders or the managing
underwriter for such offerings); provided,
however, that in no event shall the Company be required
to comply with this clause (n) more than once in any
consecutive twelve month period.
7.2 Information from Holders; Holders’
Obligations.
(a) It shall be a condition precedent to the obligations of
the Company to include the Registrable Securities of any Selling
Holder in any Registration Statement or Prospectus, as the case
may be, that such Selling Holder shall take the actions
described in this Section 7.2.
(b) Each Selling Holder that has requested inclusion of its
Registrable Securities in any Registration Statement shall
furnish to the Company (as a condition precedent to such
Holder’s participation in such registration) a
Questionnaire. Each Holder agrees promptly to furnish to the
Company in writing all information required to be disclosed in
order to make the information previously furnished to the
Company by such Holder, in light of the circumstances under
which it was made, not misleading, any other information
regarding such Holder and the distribution of such Registrable
Securities as may be required to be disclosed in the Prospectus
or Registration Statement under applicable law or pursuant to
SEC comments and any information otherwise reasonably required
by the Company to comply with applicable law or regulations.
(c) Each Selling Holder shall promptly (i) following
its actual knowledge thereof, notify the Company of the
occurrence of any event that makes any statement made in a
Registration Statement, Prospectus, Issuer Free Writing
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Prospectus or other Free Writing Prospectus regarding such
Selling Holder untrue in any material respect or that requires
the making of any changes in a Registration Statement,
Prospectus or Free Writing Prospectus so that, in such regard,
it shall not contain any untrue statement of a material fact or
omit any material fact required to be stated therein or
necessary to make the statements, in light of the circumstances
under which they were made, not misleading and (ii) provide
the Company with such information as may be required to enable
the Company to prepare a supplement or post-effective amendment
to any such Registration Statement or a supplement to such
Prospectus or Free Writing Prospectus.
(d) With respect to any Registration Statement for an
Underwritten Offering, the inclusion of a Holder’s
Registrable Securities therein shall be conditioned, at the
managing underwriter’s request, upon the execution and
delivery by such Holder of an underwriting agreement;
provided that the underwriting agreement is in customary
form and reasonably acceptable to Company and the Majority
Selling Holders of the Registrable Securities to be included in
the Underwritten Offering.
(e) Each Selling Holder shall use reasonable best efforts
to cooperate with the Company in preparing the applicable
registration statement.
(f) Each Selling Holder agrees that no Holder of
Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to a Registration Statement or
to receive a Prospectus relating thereto unless such Holder has
furnished the Company with the Questionnaire and Selling Holder
Information relating to such Holder.
7.3 Suspension of Disposition.
(a) Each Selling Holder agrees by acquisition of a
Registrable Security that, upon receipt of any written notice
from the Company of the occurrence of any event of the type
described in Sections 7.1(d)(ii),
7.1(d)(iii), 7.1(d)(iv), 7.1(d)(v) or
7.1(d)(vi), such Holder shall discontinue disposition of
Registrable Securities covered by a Registration Statement,
Prospectus or Free Writing Prospectus and suspend use of such
Prospectus or Free Writing Prospectus until such Holder has
received copies of the supplemented or amended Prospectus
contemplated by Section 7.1(g) or until it is
advised by the Company in writing that the use of the applicable
Prospectus or Free Writing Prospectus may be resumed and until
such Holder has received copies of any additional or
supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus or Free Writing
Prospectus. In the event the Company shall give any such notice,
the period of time for which a Registration Statement must
remain effective pursuant to this Agreement shall be extended by
the number of days during the time period from and including the
date of the giving of such notice to and including the date when
each Selling Holder of Registrable Securities covered by such
Registration Statement has received (i) the copies of the
supplemented or amended Prospectus or Issuer Free Writing
Prospectus contemplated by Section 7.1(g) or
(ii) the advice referenced in this
Section 7.3(a).
(b) Each Selling Holder shall be deemed to have agreed
that, upon receipt of any notice from the Company contemplated
by Section 6.1, such Selling Holder shall
discontinue disposition of Registrable Securities covered by a
Registration Statement, Prospectus or Free Writing Prospectus
and suspend use of such Prospectus or Free Writing Prospectus
until the earlier to occur of the Holder’s receipt of
(i) copies of a supplemented or amended Prospectus or
Issuer Free Writing Prospectus and (ii)(A) written notice from
the Company that the use of the applicable Prospectus or Issuer
Free Writing Prospectus may be resumed and (B) copies of
any additional or supplemental filings that are incorporated or
deemed to be incorporated by reference in such Prospectus or
Issuer Free Writing Prospectus; provided, however,
that in no event shall the number of days during which the offer
and sale of Registrable Securities is discontinued pursuant to
this Section 7.3(b) during any consecutive
12-month
period, together with any other Blackout Periods in such
consecutive
12-month
period, exceed an aggregate of ninety (90) days. In the
event the Company gives any such notice contemplated by
Section 6.1, the period of time for which a
Registration Statement must remain effective pursuant to this
Agreement shall be extended by the number of days during the
time period from and including the date of giving of such notice
to and including the date when each Selling Holder of
Registrable Securities covered by such Registration Statement
receives (i) the supplemented or amended Prospectus or
Issuer Free Writing Prospectus or (ii) written notice from
the Company that use of the applicable Prospectus or Issuer Free
Writing Prospectus may resume.
(c) If so requested by the Company, each Holder shall
deliver to the Company all copies in such Holder’s
possession, other than permanent file copies then in such
Holder’s possession or as may be required to be retained in
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accordance with applicable law, of the Prospectus covering such
Registrable Securities that was current at the time of receipt
of notice from the Company of any suspension contemplated by
this Section 7.3.
7.4 Registration Expenses.
(a) All fees and expenses incurred by the Company in
complying with Articles III, IV and V
and Section 7.1 (“Registration
Expenses”) shall be borne by the Company.
These fees and expenses shall include without limitation:
(i) all registration, filing and qualification fees,
including fees incurred with the NASD, (ii) printing,
duplicating and delivery expenses, (iii) fees and
disbursements of counsel for the Company, (iv) fees and
expenses of complying with state securities or “blue
sky” laws (including the reasonable, documented fees
and expenses of the counsel specified in
Section 7.4(b) in connection therewith),
(v) fees and disbursements of all independent certified
public accountants referred to in Section 7.1(h)(ii)
(including the expenses of any special audit and
“comfort” letters required by or incident to
such performance) and (vi) fees and expenses in connection
with listing the Registrable Securities on the NYSE or quoting
the Registrable Securities on the NASDAQ or any other exchange
or automated trading system in accordance with the other terms
of this Agreement.
(b) The Company shall also reimburse or pay, as the case
may be, the reasonable fees and reasonable
out-of-pocket
expenses of one law firm retained by the Holders (selected by
(A) DBSI with respect to the Initial Registration Statement
or if DBSI requests a registration pursuant to
Section 4.1(a)(x), (B) SP if SP requests a
registration pursuant to Section 4.1(a)(y), or
(C) by a Majority of the Majority Selling Holders in
connection with a request pursuant to
Section 4.1(a)(z) or a Piggyback Registration),
considered collectively, within 30 days of presentation of
an invoice approved by DBSI, SP, as the case may be, or such
Holders holding at least a majority of the Registrable
Securities included in any applicable registration, as the case
may be; provided, however, that in no event shall
the Company be responsible for fees and expenses of any
Holder’s counsel to the extents such fees and expenses are
incurred with respect to such Holder’s role as an
underwriter in connection with a registration pursuant to
Article III, IV or V hereof.
(c) Notwithstanding the foregoing, the Company’s
liability for all Transaction Expenses under the EPCA, together
with all Registration Expenses pursuant to clause (a) above
and counsel fees pursuant to clause (b) above incurred in
connection with the Initial Registration Statement shall not
exceed $1,500,000.
(d) Notwithstanding anything contained herein to the
contrary, all underwriting fees, discounts, selling commissions
and stock transfer taxes applicable to the sale of Registrable
Securities shall be borne by the Holder owning such Registrable
Securities.
ARTICLE VIII
Indemnification
8.1 Indemnification by the
Company. The Company agrees to indemnify and
hold harmless each Holder owning Registrable Securities
registered pursuant to this Agreement, such Holder’s
Affiliates, and their respective officers, directors, employees
and agents, and each Person, if any, who controls any such
Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act
(collectively referred to for purposes of this
Article VII as a “Holder”), from and
against any and all losses, claims, damages and liabilities
(including without limitation, subject to
Section 8.3, the reasonable legal fees and other
reasonable
out-of-pocket
expenses incurred in investigating, responding to or defending
against any claim, challenge, litigation, investigation or
proceeding, including without limitation, all
out-of-pocket
expense of appearing as a witness in any claim, challenge,
litigation, investigation or proceeding) caused by any untrue
statement or alleged untrue statement of a material fact
contained in any Registration Statement pursuant to which any
Registrable Securities were registered under the Securities Act,
Prospectus or preliminary prospectus or Issuer Free Writing
Prospectus, or any amendment thereof or supplement thereto, or
caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary, in the
case of any Prospectus or Issuer Free Writing Prospectus, in
light of the circumstances under which they were made, to make
the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any untrue
statement or
B-17
omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any
Holder furnished to the Company in writing by such Holder
expressly for use therein; provided, however, that
the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is
based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration
Statement, Prospectus, amendment, supplement or Free Writing
Prospectus in reliance upon and in conformity with written
information furnished to the Company by such participating
Holder or any other Person who participates as an underwriter in
the offering or sale of such securities, in either case
specifically stating that it is for use in the preparation
thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any
participating Holder or any such underwriter or controlling
Person and shall survive the transfer of such securities by the
Holder.
8.2 Indemnification by
Holders. Each Holder agrees, severally and
not jointly, to indemnify and hold harmless, the Company, the
directors, and officers of the Company and each Person, if any,
who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, to
the same extent as the foregoing indemnity contained in
Section 8.1 from the Company to the Holders, as incurred,
but only with respect to information relating to such Holder
furnished to the Company in writing by such Holder expressly for
use in any Registration Statement, Prospectus or preliminary
prospectus or Issuer Free Writing Prospectus, or any amendment
or supplement thereto. Notwithstanding the provisions of this
Section 8.2 or Section 8.4 below, in no
event shall any Holder be required to indemnify any person
pursuant to this Article VIII or to contribute
pursuant to Section 8.4 below in any amount in
excess of the amount by which the amount received by such Holder
with respect to its sale of Registrable Securities pursuant to
any Registration Statement exceeds the amount of any damages
that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission made in connection with such sale.
8.3 Conduct of Indemnification
Proceedings. If any claim, challenge,
litigation, investigation or proceeding (including any
governmental or regulatory investigation) shall be brought or
asserted against any Person in respect of which indemnity may be
sought pursuant to either of Section 8.1 or
Section 8.2, such Person (the “Indemnified
Person”) shall promptly notify the Person against whom such
indemnity may be sought (the “Indemnifying Person”) in
writing; provided that (i) the omission to so notify
the Indemnifying Person shall not relieve it from any liability
that it may have hereunder except to the extent it has been
prejudiced by such failure and (ii) the omission to so
notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise
than on account of this Article VIII. In case any
such claim, challenge, litigation, investigation or proceeding
is brought against any Indemnified Person and it notifies the
Indemnifying Person of the commencement thereof, the
Indemnifying Person shall be entitled to participate therein
and, to the extent that it may elect by written notice delivered
to such Indemnified Person, to assume the defense thereof and
retain counsel reasonably satisfactory to the Indemnified Person
to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall
pay the reasonable fees and expenses of such counsel related to
such proceeding. In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed in writing to
the contrary, (ii) the Indemnifying Person shall have
failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Person as contemplated by the
preceding sentence or (iii) the named parties in any such
proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and
representation of both parties by the same counsel would be
inappropriate due to actual or potential conflicts of interests
between them. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any
local counsel) for all Indemnified Persons, and that all such
fees and expenses shall be reimbursed as they are incurred. Any
such separate firm for the Holders and such control Persons of
the Holders shall be designated in writing by DBSI and any such
separate firm for the Company, the directors and officers of the
Company and such control Persons of the Company shall be
designated in writing by the Company. The Indemnifying Person
shall not be liable for any settlement of any pending or
threatened proceeding effected without its prior written consent
(which consent shall not be unreasonably withheld), but if
settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify in
accordance with, and subject to the limitations of,
Section 8.1 and Section 8.2 above, as
the case may be, any Indemnified Person from and against any
loss or liability by reason of
B-18
such settlement or judgment. No Indemnifying Person shall,
without the prior written consent of the Indemnified Persons
(which consent shall not be unreasonably withheld), effect any
settlement of any pending proceeding in respect of which any
Indemnified Person is a party or of any threatened proceeding in
respect of which any Indemnified Person could have been a party
and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement (i) includes an
unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such
proceeding and (ii) does not include any statement as to or
any admission of fault, culpability or a failure to act by or on
behalf of any Indemnified Person.
8.4 Contribution, etc.
(a) If the indemnification provided for in this
Article VIII is unavailable to an Indemnified Person
or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person
under such paragraph, in lieu of indemnifying such Indemnified
Person thereunder, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative fault of the Company on the
one hand and of such Holder on the other in connection with the
statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one
hand and such Holder on the other shall be determined by
reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or by such Holder and the parties’
relevant intent, knowledge, information and opportunity to
correct or prevent such statement or omission.
(b) The Company and the Holders agree that it would not be
just and equitable if contribution pursuant to this
Article VIII were determined by pro rata allocation
(even if the Holders were treated as one entity for such
purpose) or any other method of allocation that does not take
account of the equitable considerations referred to in this
Section 8.4. The amount paid or payable
by an Indemnified Person as a result of losses, claims, damages
and liabilities referred to in this Section 8.4
shall be deemed to include, subject to the limitations set forth
in Sections 8.1, 8.2 and 8.3 above,
any reasonable legal or other reasonable
out-of-pocket
expenses incurred by such Indemnified Person not otherwise
reimbursed in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this
Article VIII, in no event shall any Holder be
required to contribute any amount in excess of the amount by
which the amount received by such Holder with respect to its
sale of Registrable Securities pursuant to any Registration
Statement exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(c) The remedies provided for in this
Article VIII are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any
Indemnified Person at law or in equity.
(d) The indemnity and contribution agreements contained in
this Article VIII shall remain operative and in full
force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of
any Holder or any Person controlling any Holder or by or on
behalf of the Company, the officers or directors of each of the
Company or any other Person controlling the Company and
(iii) the sale by a Holder of Registrable Securities
covered by any Registration Statement.
ARTICLE IX
Free
Writing Prospectuses
Except as contemplated hereby, each Holder represents and agrees
that it (i) shall not make any offer relating to the
Registrable Securities that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a Free
Writing Prospectus, and (ii) has not distributed and will
not distribute any written materials in connection with the
offer or sale of Common Stock, in each case without the prior
written consent of the Company and, in connection with any
Underwritten Offering, the underwriters. Any such Free Writing
Prospectus consented to by the Company and the underwriters, as
the case may be, is hereinafter referred to as a “Permitted
Free Writing Prospectus.” The Company represents and agrees
that it has treated and will treat, as the case may be, each
Permitted
B-19
Free Writing Prospectus as an Issuer Free Writing Prospectus,
including in respect of timely filing with the SEC, legending
and record keeping. The Company represents and agrees that it
shall not make any offer relating to the Registrable Securities
that would constitute an Issuer Free Writing Prospectus or that
would otherwise constitute a Free Writing Prospectus in
connection with the offer or sale of Registrable Securities
without the prior written consent of DBSI and SP, or if DBSI and
SP is not requesting registration of any of its Registrable
Securities, then the Majority Selling Holders of Registrable
Securities that are registered under the Registration Statement
at such time as the approval of counsel for the holders of
Registrable Securities (selected in accordance with
Section 7.4 of the Agreement) to be included in an
Underwritten Offering and, in connection with any Underwritten
Offering, the underwriters.
ARTICLE X
Rule 144
With a view to making available the benefits of certain rules
and regulations of the SEC which may permit the sale of
Registrable Securities to the public without registration, the
Company agrees to (a) use its reasonable best efforts to
file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and
the Exchange Act; (b) upon written request of any Holder of
Registrable Securities, furnish to such Holder promptly a
written statement by the Company as to its compliance with the
reporting requirements of Rule 144 and of the Securities
Act and the Exchange Act, and such other reports and documents
as any Holder reasonably may request in availing itself of any
rule or regulation of the SEC allowing such Holder to sell any
Registrable Securities without registration; and (c) take
such other actions as may be reasonably required by the
Company’s transfer agent to consummate any distribution of
Registrable Securities that may be permitted in accordance with
the terms and conditions of Rule 144.
ARTICLE XI
Private
Placement
The Company agrees that nothing in this Agreement shall prohibit
the Holders, at any time and from time to time, from selling or
otherwise transferring Registrable Securities pursuant to a
private placement or other transaction which is not registered
pursuant to the Securities Act.
ARTICLE XII
Miscellaneous
12.1 Notices. All notices and
other communications in connection with this Agreement shall be
in writing and shall be deemed given by (and shall be deemed to
have been duly given) as follows: (i) at the time delivered
by hand, if delivered personally; (ii) when sent via
facsimile (with confirmation); (iii) five Business Days
after being deposited in the mail, if sent postage prepaid, by
registered or certified mail (return receipt requested); or
(iv) on the next Business Day, if timely delivered to an
express courier guaranteeing overnight delivery (with
confirmation). Notices shall be directed to the parties at the
following addresses (or at such other address for a party as
shall be specified by like notice):
(a) If to:
Xxxxx Lemmerz International, Inc.
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx and Xxxxxxx Xxxxxx
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx and Xxxxxxx Xxxxxx
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with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
Xxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
(b) If to:
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxx and Xxxxxxx X. Xxxxxxxx
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxx and Xxxxxxx X. Xxxxxxxx
with a copy to:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxx and Xxxxx Xxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxx and Xxxxx Xxxxxxx
(c) If to:
SPCP Group, LLC
Two Xxxxxxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000 and (000) 000-0000
Attention: Xxxx Xxxxxxxx and Xxxx Xxxxxx, Esq.
Two Xxxxxxxxx Xxxxx
Xxxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000 and (000) 000-0000
Attention: Xxxx Xxxxxxxx and Xxxx Xxxxxx, Esq.
with a copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxx
(d) If to any Investor (other than DBSI and SP) to the
address and facsimile number set forth on the signature pages
hereto, or the signature page of any joinder agreement executed
and delivered pursuant to Section 12.2.
12.2 Additional Investors. Each
Person who is a party to any Additional Investor Agreement
executed prior to the consummation of the transactions
contemplated by the EPCA, shall be deemed to be an Investor upon
execution and delivery of a joinder agreement in the form of
Exhibit B (the “Joinder
Agreement”). Only Persons (other than the initial
signatories hereto) that execute a Joinder Agreement shall be
deemed to be Investors. Except to the extent limited in any
other joinder agreement, each Person that so becomes an Investor
after the date hereof shall be entitled to all rights and
privileges of an Investor as if such Investor had been an
original signatory to this Agreement.
12.3 Other Registration
Rights. [INTENTIONALLY LEFT BLANK]
12.4 Severability. If any
provision of this Agreement shall be invalid or unenforceable,
such invalidity or unenforceability shall not affect the
validity and enforceability of the remaining provisions of this
Agreement, unless the result thereof would be unreasonable in
which case the parties hereto shall negotiate in good faith as
to appropriate amendments hereto.
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12.5 Assignment. This Agreement
shall be binding upon, inure to the benefit of and be
enforceable by each of the parties and their respective
successors and assigns; provided, however, that
neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned or delegated by a Holder
to any third party who purchases Registrable Securities from the
Holder, provided, however, that this Agreement and
the rights, interests and obligations hereunder may be assigned,
transferred or delegated by an Investor to any Affiliate of such
Investor (provided, further, that any such
transferee or assignee assumes the obligations of such Investor
hereunder and agrees in writing to be bound by the terms of this
Agreement in the same manner as the Investor pursuant to a
properly completed agreement substantially in the form of
Exhibit C). Notwithstanding the foregoing, DB and SP
may each assign the rights, interests and obligations under this
Agreement to one third party (who may be a different third party
with respect to a sale by DB and a sale by SP) who purchases no
less than 10 million Qualified Registrable Securities from
either of such Persons provided that (i) such transferee of
the Qualified Registrable Securities that is not a party to this
Agreement shall have executed and delivered to the Secretary of
the Company a properly completed agreement substantially in the
form of Exhibit C), and (ii) the Holder selling
the Qualified Registrable Securities shall have delivered to the
Secretary of the Company written notice of such transfer setting
forth the name of such Holder, the name and address of the
transferee and the number of Registrable Securities that shall
have been so transferred. This Agreement (including the
documents and instruments referred to in this Agreement) is not
intended to and does not confer upon any Person any rights or
remedies under this Agreement other than the parties hereto and
any Indemnified Person, each of which is an intended third-party
beneficiary hereof.
12.6 Entire Agreement. This
Agreement (including the documents and instruments referred to
in this Agreement) constitutes the entire agreement of the
parties and supersedes all prior agreements and understandings,
whether written or oral, between the parties with respect to the
subject matter of this Agreement, including the registration
rights agreement among the parties hereto dated
April , 2007. Notwithstanding the foregoing,
the parties hereto acknowledge that any confidentiality
agreements heretofore executed among the parties shall continue
in full force and effect.
12.7 Waivers and Amendments. This
Agreement may be amended, modified, superseded, cancelled,
renewed or extended, and the terms and conditions of this
Agreement may be waived, only by a written instrument,
(A) signed by (i) the Company, and (ii) holders
of a majority of the Registrable Securities; provided
that without the consent of DBSI and SP, no provision of this
Agreement relating to the rights of DBSI and SP, respectively,
with respect to registration of its Registrable Securities
hereunder, including without limitation its rights under
Section 4.1(a)(x) or 4.1 (a)(y), shall be
modified or amended or (B) in the case of a waiver, by the
party waiving compliance. No delay on the part of any party in
exercising any right, power or privilege pursuant to this
Agreement shall operate as a waiver thereof, nor shall any
waiver on the part of any party of any right, power or privilege
pursuant to this Agreement, nor shall any single or partial
exercise of any right, power or privilege pursuant to this
Agreement, preclude any other or further exercise thereof or the
exercise of any other right, power or privilege pursuant to this
Agreement. The rights and remedies provided pursuant to this
Agreement are cumulative and are not exclusive of any rights or
remedies which any party otherwise may have at law or in equity.
12.8 Counterparts. This Agreement
may be executed in any number of counterparts, all of which
shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each of the
parties and delivered to the other party (including via
facsimile or other electronic transmission), it being understood
that each party need not sign the same counterpart.
12.9 Governing Law; Venue. THIS
AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF DELAWARE. EACH PARTY TO THIS
AGREEMENT IRREVOCABLY SUBMITS TO THE JURISDICTION OF, AND VENUE
IN, THE DISTRICT COURTS OF THE UNITED STATES SITTING IN THE
STATE OF DELAWARE OR THE COURTS OF THE STATE OF DELAWARE AND
WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS.
12.10 Headings. The headings in
this Agreement are for reference purposes only and shall not in
any way affect the meaning or interpretation of this Agreement.
12.11 Specific Performance. The
parties acknowledge and agree that any breach of the terms of
this Agreement would give rise to irreparable harm for which
money damages would not be an adequate remedy, and,
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accordingly, the parties agree that, in addition to any other
remedies, each will be entitled to enforce the terms of this
Agreement by a decree of specific performance without the
necessity of proving the inadequacy of money damages as a remedy
and without the necessity of posting bond.
12.12 Termination. This Agreement
may be terminated at any time by a written instrument signed by
the parties hereto and shall also terminate automatically and be
of no further force and effect in the event that the EPCA is
terminated in accordance with its terms. Unless sooner
terminated in accordance with the preceding sentence, this
Agreement (other than the first proviso in
Section 7.1(i), Section 7.4,
Article VIII and Article XI hereof)
shall terminate (i) if at any time after the date hereof,
there are no Qualified Registrable Securities outstanding and
(ii) with respect to any particular Holder, at such time
when all of the Qualified Registrable Securities held by that
Holder can be sold during a three-months period under
Rule 144. In connection with any sales of Common Stock
pursuant hereto, each Holder shall be deemed to have sold
Qualified Registrable Securities prior to any sales of
Registrable Securities.
The parties hereto agree that, in the event that neither DBSI
nor SP acquires more than fifteen percent (15%) of the then
outstanding voting securities of the Company in connection with
the transactions contemplated by the EPCA, the parties shall
enter into a new registration rights agreement on substantially
the terms set forth on Appendix I hereto and upon execution
and delivery of such agreement by the parties hereto, this
Agreement shall automatically terminate and be of no further
force or effect.
12.13 No Conflicting Rights. The
Company shall not, on or after the date hereof, grant any
registration or similar rights to any Person or amend any
existing registration or similar rights previously granted by
the Company, if such grant or amendment would conflict with or
impair in any material respect the rights granted hereby.
[Signature Page Follows]
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IN WITNESS WHEREOF, each of the parties has executed this
Agreement as of the date first written above.
XXXXX LEMMERZ INTERNATIONAL, INC.
| By: |
/s/ Xxxxx
X. Xxxx
|
Name: Xxxxx X. Xxxx
| Title: | Vice President, Finance and Chief Financial Officer |
INVESTORS
DEUTSCHE BANK SECURITIES INC.
DEUTSCHE BANK SECURITIES INC.
| By: |
/s/ Xxxxxxx
X. Xxxxxxxx
|
Name: Xxxxxxx X. Xxxxxxxx
| Title: | Vice President |
| By: |
/s/ Xxxxx
X. Xxxxxx
|
Name: Xxxxx X. Xxxxxx
| Title: | Managing Director |
SPCP GROUP, LLC
| By: |
/s/ Xxxxxx
X. Mulé |
Name: Xxxxxx X. Mulé
| Title: | Authorized Person |
Each Investor party to any Additional Investor
Agreement who shall sign a Joinder Agreement
pursuant to Section 12.2 hereof.
Agreement who shall sign a Joinder Agreement
pursuant to Section 12.2 hereof.
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