REGISTRATION RIGHTS AGREEMENT BY AND AMONG COGDELL SPENCER INC. AND CERTAIN PERSONS LISTED ON SCHEDULE 1 HERETO dated as of March 10, 2008
EXECUTION VERSION
BY AND AMONG
XXXXXXX XXXXXXX INC. AND CERTAIN PERSONS
LISTED ON SCHEDULE 1 HERETO
dated as of
March 10, 2008
TABLE OF CONTENTS
| Page | ||||
SECTION 1. DEFINITIONS |
1 | |||
SECTION 2. SHELF REGISTRATIONS |
3 | |||
SECTION 3. BLACK-OUT PERIODS |
4 | |||
SECTION 4. REGISTRATION PROCEDURES |
4 | |||
SECTION 5. INDEMNIFICATION |
7 | |||
SECTION 6. MARKET STAND-OFF AGREEMENT |
9 | |||
SECTION 7. COVENANTS RELATING TO RULE 144 |
9 | |||
SECTION 8. MISCELLANEOUS |
9 |
-i-
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of March 10, 2008, is
made and entered into by and among Xxxxxxx Xxxxxxx Inc., a Maryland corporation (the
“Company”), and certain persons listed on Schedule 1 hereto (such persons, in their
capacity as holders of Registrable Securities, the “Holders” and each the
“Holder”). Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in Section 1 hereto.
RECITALS:
WHEREAS, in connection with the Company’s acquisition of Xxxxxxxx Xxxxxx & Associates, Inc.
and certain of its affiliated companies (the “Merger”), Xxxxxxx Xxxxxxx XX, a Delaware
limited partnership (“Xxxxxxx Xxxxxxx OP”), and certain persons listed on Schedule
1 hereto have entered into contribution agreements (each a “Contribution Agreement” and
collectively, the “Contribution Agreements”), pursuant to which such persons exchanged
certain of their shares of common stock of MEA Holdings, Inc. for units representing limited
partnership interests (the “OP Units”) of Xxxxxxx Xxxxxxx OP, which are exchangeable, under
certain circumstances, into shares of common stock of the Company, par value $0.01 per share (the
“Common Stock”) on a one-for-one basis; and
WHEREAS, the Company desires to enter into this Agreement with the Holders in order to grant
the Holders the registration rights contained herein.
NOW, THEREFORE, in consideration of the premises and the mutual promises and covenants
contained in this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
“Affiliate” shall mean, when used with reference to a specified Person, (i) any
Person that directly or indirectly through one or more intermediaries, Controls or is Controlled by
or is under common Control with the specified Person; (ii) any Person who, from time to time, is a
member of the immediate family of a specified Person; (iii) any Person who, from time to time, is
an officer or director or manager of a specified Person; or (iv) any Person who, directly or
indirectly, is the beneficial owner of 50% or more of any class of equity securities or other
ownership interests of the specified Person, or of which the specified Person is directly or
indirectly the owner of 50% or more of any class of equity securities or other ownership interests.
“Agreement” shall mean this Registration Rights Agreement as originally executed and
as amended, supplemented or restated from time to time.
“Xxxxx” shall mean Xxxxx Capital Partners III Limited Partnership, BCP III Special
Affiliates Limited Partnership and BCP III Affiliates Fund Limited Partnership, collectively..
“Board” shall mean the Board of Directors of the Company.
“Business Day” shall mean each day other than a Saturday, a Sunday or any other day
on which banking institutions in the State of New York are authorized or obligated by law or
executive order to be closed.
“Common Stock” shall have the meaning set forth in the Recitals hereof.
“Commission” shall mean the Securities and Exchange Commission and any successor
thereto.
“Company” shall have the meaning set forth in the introductory paragraph hereof.
“Control” (including the terms “Controlling,” “Controlled by” and
“under common Control with”) shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a Person through the
ownership of Voting Power, by contract or otherwise.
“Damages Payment Date” shall mean the later of (i) ten Business Days, and (2) the
first Business Day of the calendar month, following the date on which a Registration Default shall
have occurred.
“Effectiveness Date” shall have the meaning set forth in Section 2(a) hereof.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended (or any
corresponding provision of succeeding law), and the rules and regulations thereunder.
“Holder” shall mean each holder of OP Units, listed in Schedule 1 hereto, in
his, her or its capacity as a holder of Registrable Securities. For purposes of this Agreement,
the Company may deem and treat the registered holder of a Registrable Security as the Holder and
absolute owner thereof, unless notified to the contrary in writing by the registered holder
thereof.
“Inspectors” shall have the meaning set forth in Section 4(a)(xv) hereof.
“Liquidated Damages” shall have the meaning set forth in Section 2(c) hereof.
“Lubar” shall mean Lubar Capital, LLC.
“Market Value” shall mean, as of any date, the average closing price of the Common
Stock on the principal national securities exchange or national quotation system in which the
Common Stock is admitted for trading or quotation over the ten trading days preceding such date, or
if closing prices are not available, the average of the averages of the closing bid and asked
prices over such period on such exchange or system.
“Merger” shall have the meaning set forth in the Recitals hereof.
“OP Units” shall have the meaning set forth in the Recitals hereof.
“Person” shall mean any individual, partnership, corporation, limited liability
company, joint venture, association, trust, unincorporated organization or other governmental or
legal entity.
“Records” shall have the meaning set forth in Section 4(a)(xv) hereof.
“Registrable Securities” shall mean the Common Stock that may be acquired by the
Holders in connection with the exercise by such Holders of the exchange rights associated with OP
Units; provided, however, such Registrable Securities shall cease to be Registrable
Securities with respect to any Holder when (A) a registration statement with respect to the sale
of such Registrable Securities shall have become effective under the Securities Act and all such
Registrable Securities shall have been disposed of in accordance with such registration statement,
(B) such Registrable Securities shall have been sold under
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circumstances in which all of the applicable conditions of Rule 144 (or any successor
provision) under the Securities Act are met, or (C) such Registrable Securities have ceased to be
outstanding.
“Registration Default” shall have the meaning set forth in Section 2(c)
hereof.
“Registration Expenses” shall mean (i) the fees and disbursements of counsel and
independent public accountants for the Company incurred in connection with the Company’s
performance of or compliance with this Agreement, including the expenses of any special audits or
“comfort” letters required by or incident to such performance and compliance, and any premiums and
other costs of policies of insurance obtained by the Company against liabilities arising out of the
sale of any securities and (ii) all registration, filing and stock exchange fees, all fees and
expenses of complying with securities or “blue sky” laws, all fees and expenses of custodians,
transfer agents and registrars, all printing expenses, messenger and delivery expenses and any fees
and disbursements of one common counsel retained by a majority-in-interest of the Holders
(“Holders Counsel”); provided, however, “Registration Expenses”
shall not include any out-of-pocket expenses of the Holders, transfer taxes, underwriting or
brokerage commissions or discounts associated with effecting any sales of Registrable Securities
that may be offered, which expenses shall be borne by each Holder on a pro rata basis with respect
to the Registrable Securities so sold.
“Securities Act” shall mean the Securities Act of 1933, as amended (or any successor
corresponding provision of succeeding law), and the rules and regulations thereunder.
“Shelf Registration Statement” shall have the meaning set forth in Section
2(a) hereof.
“Stand-Off Period” shall have the meaning set forth in Section 6 hereof.
“Transfer” shall have the meaning set forth in Section 8(h) hereof.
“Voting Power” shall mean voting securities or other voting interests ordinarily (and
apart from rights accruing under special circumstances) having the right to vote in the election of
members of the Board or Persons performing substantially equivalent tasks and responsibilities with
respect to a particular entity.
Section 2. Shelf Registrations.
a. Shelf Registration. The Company agrees to use commercially reasonable efforts to
file with the Commission no later than nine months following the closing of the Merger a
registration statement with respect to the Registrable Securities under the Securities Act on Form
S-3 (or any similar or successor form) or, if the Company is not then eligible to use Form S-3,
Form S-11 (or any similar or successor form) for the offering to be made on a continuous basis
pursuant to Rule 415 under the Securities Act (the “Shelf Registration Statement”), and
will use commercially reasonable efforts to cause such Shelf Registration Statement to be declared
effective by the Commission no later than 12 months following the closing date of the Merger (the
“Effectiveness Date”). The Shelf Registration Statement shall be on an appropriate form
and the registration statement and any form of prospectus included or incorporated by reference
therein (or prospectus supplement relating thereto) shall reflect the plan of distribution or
method of sale as the Holders may from time to time notify the Company.
b. Effectiveness. The Company shall use commercially reasonable efforts to keep the
Shelf Registration Statement continuously effective for the period beginning on the date on which
the Shelf Registration Statement is declared effective and ending on the earlier of (i) the date
that all of the Registrable Securities registered under the Shelf Registration Statement cease to
be Registrable
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Securities, and (ii) the termination of this Agreement. During the period that the Shelf
Registration Statement is effective, the Company shall supplement or make amendments to the Shelf
Registration Statement, if required by the Securities Act or if reasonably requested by the Holders
or an underwriter of the Registrable Securities (whether or not required by the form on which the
securities are being registered), including to reflect any specific plan of distribution or method
of sale, and shall use its commercially reasonable efforts to have such supplements and amendments
declared effective, if required, as soon as practicable after filing.
c. Certain Payments to Xxxxx. If the Shelf Registration Statement has not been
declared effective by the Commission on or prior to the Effectiveness Date (a “Registration
Default”), the Company shall pay to Xxxxx liquidated damages (“Liquidated Damages”), in
cash, for the period (excluding the Effectiveness Date) during which such Registration Default
shall be continuing, at a rate per week equal to twenty-five basis points multiplied by the total
consideration contributed by Xxxxx pursuant to their Contribution Agreement as of a Registration
Default reduced by any amount withdrawn from the Escrow Account (as such term is defined in the
Escrow Agreement by and among Xxxxxxx Xxxxxxx XX, the Seller Representatives (as defined therein)
and Mellon Investor Services LLC, dated as of March 10, 2008) attributed to Xxxxx (prorated for
partial weeks); provided, however, that if such Registration Default is based, in
whole or in part, on the failure by Xxxxx to provide information reasonably requested by the
Company in accordance with Section 4(b) hereof, the Company shall not be liable for a
Registration Default. All accrued Liquidated Damages shall be paid by the Company to Xxxxx by the
following Damages Payment Date. The Company’s obligation to pay Liquidated Damages to Xxxxx
pursuant to this Section 2(c) shall terminate on the earlier of (i) the date on which the
Shelf Registration Statement is declared effective by the Commission, and (ii) the date that is one
year following the Effectiveness Date.
d. Underwritten Offerings. Any Holder may choose, in its sole discretion (subject to
the following sentence), to have such Registrable Securities be disposed of as part of an
underwritten public offering. If the method of disposition specified by a Holder shall be an
underwritten public offering, such Holder shall have the right to include in such registration any
Registrable Securities; provided, however, that the Registrable Securities to be
included in such registration shall have an estimated Market Value at the time of such request of
at least $15,000,000. The Company agrees that, subject to the preceding sentence, one, but in no
event more than one, underwritten public offering may be used by each of Lubar and Xxxxx to dispose
of Registrable Securities.
e. Selection of Underwriters. If a disposition of Registrable Securities takes the
form of an underwritten public offering, the Company shall have the right to select the investment
banker(s) and managing underwriter for the offering.
f. Limitations on Subsequent Registration Rights. The Company represents and warrants
that it has not entered into any agreement with any Person that would allow such Person to include
any equity securities of the Company in any registration statement filed pursuant to the terms of
this Agreement. From and after the date of this Agreement, the Company shall not, without the
prior written consent of Holders of not less than two-thirds of the then outstanding Registrable
Securities, enter into any agreement with any holder or prospective holder of any equity securities
of the Company that would allow such holder or prospective holder to include such equity securities
in any registration statement filed pursuant to the terms of this Agreement, unless under the terms
of such agreement, such holder or prospective holder may include such equity securities in any such
registration only to the extent that the inclusion of its equity securities will not reduce the
amount of Registrable Securities of the Holders.
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Section 3. Black-Out Periods.
Notwithstanding anything herein to the contrary, the Company shall have the right, exercisable
from time to time by delivery of a notice authorized by the Board, on not more than two occasions
in any 12-month period, to require the Holders not to sell pursuant to a registration statement or
similar document under the Securities Act filed pursuant to Section 2 hereof or to suspend
the effectiveness thereof if at the time of the delivery of such notice, the Board has considered a
plan to engage no later than 60 days following the date of such notice in a firm commitment
underwritten public offering or if the Board has reasonably and in good faith determined that such
registration and offering, continued effectiveness or sale would materially interfere with any
material transaction involving the Company; provided, however, that in no event
shall the black-out period extend for more than 90 days on any such occasion. If the consummation
of any business combination by the Company has occurred or is probable for purposes of Rule 3-05 or
Article 11 of Regulation S-X under the Act, the rights of the Holders to offer, sell or distribute
any Registrable Securities pursuant to the Shelf Registration Statement shall be suspended until
the date on which the Company has filed the financial information required by Rule 3-05 or
Article 11 of Regulation S-X to be included or incorporated by reference, as applicable, in the
Shelf Registration. The Company, as soon as practicable, shall (i) give the Holders prompt written
notice in the event that the Company has suspended sales of Registrable Securities pursuant to this
Section 3, (ii) give the Holders prompt written notice of the completion of such offering
or material transaction or filing of the required financial information with the Commission, as
the case may be, and (iii) promptly file any amendment necessary for any registration statement or
prospectus of the Holders in connection with the completion of such event.
If the Company determines in its good faith judgment that the filing of the Shelf Registration
Statement or the use of any related prospectus would require the disclosure of material information
that the Company has a bona fide business purpose for preserving as confidential or the disclosure
of which would impede the Company’s ability to consummate a significant transaction, and that the
Company is not otherwise required by applicable securities laws or regulations to disclose, upon
written notice of such determination by the Company, the rights of the Holders to offer, sell or
distribute any Registrable Securities pursuant to the Shelf Registration Statement or to require
the Company to take action with respect to the registration or sale of any Registrable Securities
pursuant to the Shelf Registration Statement shall be suspended until the earlier of (i) the date
upon which the Company notifies the Holders in writing that suspension of such rights for the
grounds set forth in this Section 3 is no longer necessary and (ii) 40 days. The Company
agrees to give such notice as promptly as practicable following the date that such suspension of
rights is no longer necessary. The Company may not utilize this suspension right more than three
times in any twelve (12) month period.
Each Holder agrees by acquisition of the Registrable Securities that upon receipt of any
notice from the Company of the happening of any event of the kind described in this Section
3, such Holder will forthwith discontinue its disposition of Registrable Securities pursuant to
the Shelf Registration Statement relating to such Registrable Securities until the earlier of such
Holder’s receipt of the notice of completion of such event or the expiration of the black-out
period.
Section 4. Registration Procedures.
a. In connection with the filing of any registration statement as provided in this Agreement,
the Company shall use commercially reasonable efforts to, as expeditiously as reasonably
practicable:
(i) prepare and file with the Commission the requisite registration statement
(including a prospectus therein and any supplement thereto) to effect such registration and
use its
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commercially reasonable efforts to cause such registration statement to become and
remain effective for the period set forth in Section 2(b) hereof; provided,
however, that before filing such registration statement or any amendments or
supplements thereto, the Company will furnish copies of all such documents proposed to be
filed to counsel for the Holders, the underwriters, if any, and counsel for the underwriters
of Registrable Securities covered by such registration statement and provide reasonable time
for such Holders, underwriters and their respective counsel to comment upon such documents
if so requested by a Holder or any underwriters;
(ii) prepare and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be necessary
to maintain the effectiveness of such registration and to comply with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities covered by such
registration statement during the period in which such registration statement is required to
be kept effective;
(iii) furnish to each Holder of the securities being registered and the underwriters,
if any, without charge, such number of conformed copies of such registration statement and
of each such amendment and supplement thereto (in each case including all exhibits) other
than those which are being incorporated into such registration statement by reference, such
number of copies of the prospectus contained in such registration statements (including each
complete prospectus and any summary prospectus) and any other prospectus filed under Rule
424 under the Securities Act in conformity with the requirements of the Securities Act, and
such other documents, including documents incorporated by reference, as the Holders may
reasonably request to the extent such other documents are not available on the Commission’s
Electronic Data Gathering Analysis and Retrieval System;
(iv) register or qualify all Registrable Securities under such other securities or
“blue sky” laws of such jurisdictions as the Holders and the underwriters of the securities
being registered, if any, shall reasonably request, to keep such registration or
qualification in effect for so long as such registration statement remains in effect, and
take any other action which may be reasonably necessary or advisable to enable the Holders
to consummate the disposition in such jurisdiction of the securities owned by the Holders,
except that the Company shall not for any such purpose be required to qualify generally to
do business as a foreign company or to register as a broker or dealer in any jurisdiction
where it would not otherwise be required to qualify but for this Section 4(a)(iv),
or to consent to general service of process in any such jurisdiction, or to be subject to
any material tax obligation in any such jurisdiction where it is not then so subject;
(v) immediately notify the Holders at any time when the Company becomes aware that a
prospectus relating thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made, and, at the
request of the Holders, promptly prepare and furnish to the Holders a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such prospectus shall not include
an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the light of
the circumstances under which they were made;
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(vi) comply or continue to comply in all material respects with the Securities Act and
the Exchange Act and with all applicable rules and regulations of the Commission thereunder
so as to enable any Holder to sell its Registrable Securities pursuant to Rule 144
promulgated under the Securities Act, as further agreed to in Section 7 hereof;
(vii) make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least 12 months, but not more than 18 months,
beginning with the first calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act;
(viii) provide a transfer agent and registrar for all Registrable Securities covered by
such registration statement not later than the effective date of such registration
statement;
(ix) cooperate with the Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any Securities
Act legend; and enable certificates for such Registrable Securities to be issued for such
number of shares and registered in such names as the Holders may reasonably request in
writing at least two Business Days prior to any sale of Registrable Securities;
(x) list all Registrable Securities covered by such registration statement on any
securities exchange or national quotation system on which any such class of securities is
then listed or quoted and cause to be satisfied all requirements and conditions of such
securities exchange or national quotation system to the listing or quoting of such
securities that are reasonably within the control of the Company including, without
limitation, registering the applicable class of Registrable Securities under the Exchange
Act, if appropriate, and using commercially reasonable efforts to cause such registration
to become effective pursuant to the rules of the Commission in accordance with the terms
hereof;
(xi) in connection with any sale, transfer or other disposition by any Holder of any
Registrable Securities pursuant to Rule 144 promulgated under the Securities Act, cooperate
with such Holder to facilitate the timely preparation and delivery of certificates
representing the Registrable Securities to be sold and not bearing any Securities Act
legend, and enable certificates for such Registrable Securities to be for such number of
shares and registered in such name as the Holders may reasonably request in writing at least
three Business Days prior to any sale of Registrable Securities;
(xii) notify each Holder, promptly after it shall receive notice thereof, of the time
when such registration statement, or any post-effective amendments to the registration
statement, shall have become effective, or a supplement to any prospectus forming part of
such registration statement has been filed or when any document is filed with the Commission
which would be incorporated by reference into the prospectus;
(xiii) notify each Holder of any request by the Commission for the amendment or
supplement of such registration statement or prospectus for additional information;
(xiv) advise each Holder, promptly after it shall receive notice or obtain knowledge
thereof, of (A) the issuance of any stop order, injunction or other order or requirement by
the Commission suspending the effectiveness of such registration statement or the initiation
or threatening of any proceeding for such purpose and use all commercially reasonable
efforts to prevent the issuance of any stop order, injunction or other order or requirement
or to obtain its
7
withdrawal if such stop order, injunction or other order or requirement should be
issued, (B) the suspension of the registration of the subject shares of the Registrable
Securities in any state jurisdiction and (C) the removal of any such stop order, injunction
or other order or requirement or proceeding or the lifting of any such suspension;
(xv) make available for inspection by any Holder of such Registrable Securities, any
underwriter participating in any disposition pursuant to such registration statement and any
attorney, accountant or other professional retained by any such Holder or underwriter
(collectively, the “Inspectors”), all financial and other records, pertinent
corporate documents and properties of the Company (collectively, the “Records”) as
shall be reasonably requested, and cause the Company’s officers, directors and employees to
supply all information reasonably requested by any Inspector in connection with such
registration statement. Records which the Company determines, in good faith, to be
confidential and which it notifies the Inspectors are confidential shall not be disclosed by
the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such registration statement or (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent jurisdiction.
Each Holder of such Registrable Securities agrees that information obtained by it as a
result of such inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the company or its Affiliates unless
and until such is made generally available to the public. Each Holder of such Registrable
Securities further agrees that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Company and allow the
Company, at its expense, to undertake appropriate action to prevent disclosure of the
Records deemed confidential;
(xvi) furnish to each Holder and to each underwriter, if any, a signed counterpart,
addressed to such Holder or underwriter, of (i) an opinion or opinions of counsel to the
Company and (ii) if eligible under SAS 72, a comfort letter or comfort letters from the
Company’s independent public accountants, each in customary form and covering such matters
of the type customarily covered by opinions or comfort letters, as the case may be, as the
Holders of a majority of the Registrable Securities included in such offering or the
managing underwriter or underwriters therefor reasonably requests; and
(xvii) subject to Section 2(d) hereof, if a disposition of Registrable Securities
takes the form of an underwritten public offering, enter into a written underwriting
agreement with any underwriters in such form and containing such provisions as are customary
in underwritten public offerings of equity securities.
b. In connection with the filing of any registration statement covering Registrable
Securities, each Holder shall furnish in writing to the Company such information regarding such
Holder (and any of its Affiliates), the Registrable Securities to be sold, the intended method of
distribution of such Registrable Securities and such other information requested by the Company as
is necessary or it reasonably deems advisable for inclusion in the registration statement relating
to such offering pursuant to the Securities Act. Such writing shall expressly state that it is
being furnished to the Company for use in the preparation of a registration statement, preliminary
prospectus, supplementary prospectus, final prospectus or amendment or supplement thereto, as the
case may be.
Each Holder agrees by acquisition of the Registrable Securities that (i) upon receipt of any
notice from the Company of the happening of any event of the kind described in Section
4(a)(v) hereof, such Holder will forthwith discontinue its disposition of Registrable
Securities pursuant to the registration statement relating to such Registrable Securities until
such Holder’s receipt of the copies of the
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supplemented or amended prospectus contemplated by Section 4(a)(v) hereof; (ii) upon
receipt of any notice from the Company of the happening of any event of the kind described in
clause (A) of Section 4(a)(xiv) hereof, such Holder will discontinue its disposition of
Registrable Securities pursuant to such registration statement until such Holder’s receipt of the
notice described in clause (C) of Section 4(a)(xiv) hereof; and (iii) upon receipt of any
notice from the Company of the happening of any event of the kind described in clause (B) of
Section 4(a)(xiv) hereof, such Holder will discontinue its disposition of Registrable
Securities pursuant to such registration statement in the applicable state jurisdiction(s) until
such Holder’s receipt of the notice described in clause (C) of Section 4(a)(xiv) hereof.
Section 5. Indemnification.
a. Indemnification by the Company. The Company agrees to indemnify and hold harmless
each Holder, its partners, officers, directors, trustees, stockholders, employees, agents and
investment advisers, and each Person, if any, who controls such Holder within the meaning of the
Securities Act or the Exchange Act, together with the partners, officers, directors, trustees,
stockholders, employees, agents and investment advisers of such controlling Person, against any
losses, claims, damages, and expenses (including, without limitation, reasonable attorneys’ fees),
joint or several, to which the Holders or any such indemnitees may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages, liabilities and expenses (or
actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact contained in the
registration statement under which such Registrable Securities were registered and sold under the
Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were made, not
misleading or any violation of the Securities Act or state securities laws or rules thereunder by
the Company relating to any action or inaction by the Company in connection with such registration,
and the Company will reimburse each Holder for any reasonable legal or any other expenses
reasonably incurred by it in connection with investigating or defending any such loss, claim,
liability, action or proceedings; 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 statement or omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by any Holder specifically
stating that it is for use in the preparation thereof; and provided, further, that
the Company shall not be liable to the Holders or any other Person who controls such Holder within
the meaning of the Securities Act or the Exchange Act 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 such Person’s failure to send or give a copy of the final prospectus or supplement to the
Persons asserting an untrue statement or alleged untrue statement or omission or alleged omission
at or prior to the written confirmation of the sale of Registrable Securities to such Person if
such statement or omission was corrected in such final prospectus or supplement. Such indemnity
shall remain in full force and effect regardless of any investigation made by or on behalf of the
Holders or any such controlling Person and shall survive the transfer of such securities by the
Holders.
b. Indemnification by the Holders. Each Holder agrees to indemnify and hold harmless
(in the same manner and to the same extent as set forth in Section 5(a) hereof) the
Company, each member of the Board, each officer, employee and agent of the Company and each other
Person, if any, who controls the Company within the meaning of the Securities Act or the Exchange
Act, with respect to any untrue statement or alleged untrue statement of a material fact in or
omission or alleged omission to state a material fact from such registration statement, any
preliminary prospectus, final prospectus or
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summary prospectus contained therein, or any amendment or supplement thereto, if such untrue
statement or alleged untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such Holder regarding such
Holder giving such indemnification specifically stating that it is for use in the preparation of
such registration statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any such Board member, officer, employee,
agent or controlling Person and shall survive the transfer of such securities by any Holder. The
obligation of a Holder to indemnify will be several and not joint, among the Holders of Registrable
Securities and the liability of each such Holder of Registrable Securities will be in proportion to
and limited in all events to the net amount received by such Holder from the sale of Registrable
Securities pursuant to such registration statement.
c. Notices of Claims, etc. Promptly after receipt by an indemnified party of notice
of the commencement of any action or proceeding involving a claim referred to in the preceding
paragraphs of this Section 5, such indemnified party will, if a claim in respect thereof is
to be made against an indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified party to give
notice as provided herein shall not relieve the indemnifying party of its obligations under the
preceding paragraphs of this Section 5, except and only to the extent that the indemnifying
party is actually prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, unless in such indemnified party’s reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist in respect of such claim, the
indemnifying party shall be entitled to assume the defense thereof, for itself, if applicable,
together with any other indemnified party similarly notified, and after notice from the
indemnifying party to such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to the indemnified party for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof.
d. Indemnification Payments. To the extent that the indemnifying party does not
assume the defense of an action brought against the indemnified party as provided in Section
5(c) hereof, the indemnified party (or parties if there is more than one) shall be entitled to
the reasonable legal expenses of one common counsel for the indemnified party (or parties). In
such event, however, the indemnifying party will not be liable for any settlement effected without
the written consent of such indemnifying party, which consent shall not be unreasonably withheld.
The indemnification required by this Section 5 shall be made by periodic payments of the
amount thereof during the course of an investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred. The indemnifying party shall not settle any claim
without the consent of the indemnified party unless such settlement involves a complete release of
such indemnified party without any admission of liability by the indemnified party.
e. Contribution. If, for any reason, the foregoing indemnity is unavailable, or is
insufficient to hold harmless an indemnified party, then the indemnifying party shall contribute to
the amount paid or payable by the indemnified party as a result of the expense, loss, damage or
liability, (i) in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other (determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or
omission relates to information supplied by the indemnifying party or the indemnified party and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission) or (ii) if the allocation provided by subclause (i) above is not
permitted by applicable law or provides a lesser sum to the indemnified party than the amount
hereinafter calculated, in the proportion as is appropriate to reflect not only the relative fault
of the indemnifying party and the indemnified party, but also the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other, as
10
well as any other relevant equitable considerations. No indemnified party guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any indemnifying party who was not guilty of such fraudulent
misrepresentation, and the liability for contribution of each Holder of Registrable Securities will
be in proportion to and limited in all events to the net amount received by such Holder from the
sale of Registrable Securities pursuant to such registration statement.
Section 6. Market Stand-Off Agreement. Each Holder hereby agrees that it shall not,
to the extent requested by the Company or an underwriter of securities of the Company, directly or
indirectly sell, offer, pledge, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell (including without limitation any short sale), grant any option,
right or warrant for the sale of or otherwise transfer or dispose of any Registrable Securities
(other than to donees or partners of the Holder who agree to be similarly bound) within seven days
prior to and for up to 90 days following the effective date of a registration statement of the
Company filed under the Securities Act or the date of an underwriting agreement with respect to a
firm commitment underwritten public offering of the Company’s securities (the “Stand-Off
Period”); provided, however, that:
a. with respect to the Stand-Off Period, such agreement shall not be applicable to the
Registrable Securities to be sold on the Holder’s behalf to the public pursuant to such
registration statement;
b. all executive officers and directors of the Company then holding Common Stock of the
Company shall enter into similar agreements for not less than the entire time period required of
the Holders hereunder;
c. the Company shall use commercially reasonable efforts to obtain similar agreements from
each 5% or greater shareholder of the Company for not less than the entire time period required of
the Holders hereunder; and
d. the Holders shall be allowed any concession or proportionate release allowed to any (i)
officer, (ii) director or (iii) other 5% or greater shareholder of the Company that entered into
similar agreements.
In order to enforce the foregoing covenant, the Company shall have the right to place
restrictive legends on the certificates representing the Registrable Securities subject to this
Section 6 and to impose stop transfer instructions with respect to the Registrable
Securities and such other Common Stock of each Holder (and the Common Stock or securities of every
other person subject to the foregoing restriction) until the end of such period.
Section 7. Covenants Relating To Rule 144. The Company covenants that it will file in
a timely manner any reports required to be filed by it under the Securities Act and the Exchange
Act and that it will take such further action as any Holder may reasonably request, all to the
extent required from time to time to enable Holders to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions provided by (a) Rule
144 under the Securities Act, as such rule may be amended from time to time or (b) any similar rule
or regulation hereafter adopted by the Commission. Upon the request of any Holder, the Company
will deliver to such Holder a written statement as to whether it has complied with such
requirements.
Section 8. Miscellaneous.
11
a. Termination; Survival. The rights of each Holder other than Xxxxx under this
Agreement shall terminate upon the earlier of (i) the date that all of the Registrable Securities
held by such Holder cease to be Registrable Securities, and (ii) the later of (A) three months
following the date on which Lubar is no longer and “affiliate” for purposes of Rule 144 under the
Securities Act, and (B) three years from the date of this Agreement; provided,
however, that the rights of Xxxxx under this Agreement shall terminate upon the earlier of
(i) the date that all of the Registrable Securities held by Xxxxx cease to be Registrable
Securities, and (ii) three years from the date of this Agreement. Notwithstanding the foregoing,
the obligations of the parties under Section 5 hereof and paragraphs (d), (e) and (g) of
this Section 8 shall survive the termination of this Agreement.
b. Expenses. All Registration Expenses incurred in connection with any Shelf
Registration under Section 2 hereof shall be borne by the Company, whether or not any
registration statement related thereto becomes effective.
c. Counterparts. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become effective when one or more
such counterparts have been signed by each of the parties and delivered to each of the other
parties.
d. Applicable Law; Jurisdiction. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to the choice of law provisions
thereof. The parties consent to the exclusive jurisdiction of the United States District Court for
the Southern District of New York in connection with any civil action concerning any controversy,
dispute or claim arising out of or relating to this Agreement, or any other agreement contemplated
by, or otherwise with respect to, this Agreement or the breach hereof, unless such court would not
have subject matter jurisdiction thereof, in which event the parties consent to the jurisdiction of
the State of New York. The parties hereby waive and agree not to assert in any litigation
concerning this Agreement the doctrine of forum non conveniens.
e. Waiver Of Jury Trial. THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.
f. Prior Agreement; Construction; Entire Agreement. This Agreement, including the
exhibits and other documents referred to herein (which form a part hereof), constitutes the entire
agreement of the parties with respect to the subject matter hereof, and supersedes all prior
agreements and understandings between the parties, and all such prior agreements and understandings
are merged herein and shall not survive the execution and delivery hereof.
g. Notices. All notices or other communications required or permitted to be given
hereunder shall be in writing and shall be delivered by hand or sent, postage prepaid, by
registered, certified or express mail or reputable overnight courier service or by telecopier and
shall be deemed given when so delivered by hand or, if mailed, three days after mailing (one
Business Day in the case of express mail or overnight courier service), addressed as follows:
If to the Holder:
|
To the address indicated for such Holder in Schedule 1 hereto. |
12
If to the Company:
|
Xxxxxxx Xxxxxxx Inc. | |
| 0000 Xxxxxxx Xxxxx Xxxxx | ||
| Xxxxx 000 | ||
| Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 | ||
| Attention: Xxxxx Xxxxxxx | ||
| Tel: (000) 000-0000 | ||
| Fax: (000) 000-0000 | ||
| with a copy to: | ||
| Xxxxxxxx Chance US LLP | ||
| 00 Xxxx 00xx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Attention: Xxx X. Xxxxxxxxx | ||
| Facsimile: 000-000-0000 |
h. Transfers. Any Holder may sell, transfer, convey or assign (each a
“Transfer”) some or all of the Registrable Securities held thereby at any time and, in
connection with any such Transfer, may assign the registration and other rights set forth in this
Agreement with respect to the Registrable Securities so Transferred to the transferee or assignee
in such Transfer; provided, however, that in connection with any Transfer, the
Registrable Securities to be Transferred shall either (i) have a Market Value at the time of such
Transfer of at least $5,000,000, or (ii) be in amount not less than 50% of the total number of OP
units issued to the transferring Holder pursuant to its Contribution Agreement (which amount for
Xxxxx shall be not less than 50% of the aggregate amount of all OP units held by any Persons
affiliated with Xxxxx, and which amount for Lubar shall be not less than 50% of the aggregate
amount of all OP units held by any Persons affiliated with Lubar); provided,
further, that such transferee or assignee of such rights, as a condition to the
effectiveness of such Transfer, shall have executed a counterpart to this Agreement in which such
transferee or assignee agrees to be treated and bound hereunder as a “Holder,” whereupon such
transferee or assignee shall have the benefits of, and shall be subject to the obligations
contained in, this Agreement as if such transferee or assignee was originally included in the
definition of a “Holder” herein and had originally been a party hereto and, upon receipt of such
executed counterpart, the Company shall amend Schedule 1 hereto to reflect such Transfer
and the related transfer or assignment of the registration and other rights hereunder with respect
to such Registrable Securities.
i. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties and shall inure to the
benefit of each Holder. The Company may assign its rights or obligations hereunder to any
successor to the Company’s business or with the prior written consent of Holders of a majority of
the then outstanding Registrable Securities. Notwithstanding the foregoing, no assignee of the
Company shall have any of the rights granted under this Agreement until such assignee shall
acknowledge its rights and obligations hereunder by a signed written agreement pursuant to which
such assignee accepts such rights and obligations.
j. Headings. Headings are included solely for convenience of reference and if there
is any conflict between headings and the text of this Agreement, the text shall control.
k. Amendments and Waivers. The provisions of this Agreement may be amended or waived
at any time only by the written agreement of the Company and the Holders of a majority of the
Registrable Securities; provided, however, that the provisions of this Agreement
may not be amended or waived without the consent of the Holders of all the Registrable Securities
adversely affected by such
13
amendment or waiver if such amendment or waiver adversely affects a portion of the Registrable
Securities but does not so adversely affect all of the Registrable Securities; provided,
further, that the provisions of the preceding provision may not be amended or waived except
in accordance with this sentence. Any waiver, permit, consent or approval of any kind or character
on the part of any such Holders of any provision or condition of this Agreement must be made in
writing and shall be effective only to the extent specifically set forth in writing. Any amendment
or waiver effected in accordance with this paragraph shall be binding upon each Holder of
Registrable Securities and the Company.
l. Interpretation; Absence of Presumption. For the purposes hereof, (i) words in the
singular shall be held to include the plural and vice versa and words of one gender shall be held
to include the other gender as the context requires, (ii) the terms “hereof,” “herein,” and
“herewith” and words of similar import shall, unless otherwise stated, be construed to refer to
this Agreement as a whole and not to any particular provision of this Agreement, and Section,
paragraph or other references are to the Sections, paragraphs, or other references to this
Agreement unless otherwise specified, (iii) the word “including” and words of similar import when
used in this Agreement shall mean “including, without limitation,” unless the context otherwise
requires or unless otherwise specified, (iv) the word “or” shall not be exclusive and (v)
provisions shall apply, when appropriate, to successive events and transactions.
This Agreement shall be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting or causing any instruments to be drafted.
m. Severability. If any provision of this Agreement shall be or shall be held or
deemed by a final order by a competent authority to be invalid, inoperative or unenforceable, such
circumstance shall not have the effect of rendering any other provision or provisions herein
contained invalid, inoperative or unenforceable, but this Agreement shall be construed as if such
invalid, inoperative or unenforceable provision had never been contained herein so as to give full
force and effect to the remaining such terms and provisions.
n. Specific Performance; Other Rights. The parties recognize that various other
rights rendered under this Agreement are unique and, accordingly, the parties shall, in addition to
such other remedies as may be available to them at law or in equity, have the right to enforce the
rights under this Agreement by actions for injunctive relief and specific performance.
o. Further Assurances. In connection with this Agreement, as well as all transactions
and covenants contemplated by this Agreement, each party hereto agrees to execute and deliver or
cause to be executed and delivered such additional documents and instruments and to perform or
cause to be performed such additional acts as may be necessary or appropriate to effectuate, carry
out and perform all of the terms, provisions and conditions of this Agreement and all such
transactions and covenants contemplated by this Agreement.
p. No Waiver. The waiver of any breach of any term or condition of this Agreement
shall not operate as a waiver of any other breach of such term or condition or of any other term or
condition, nor shall any failure to enforce any provision hereof operate as a waiver of such
provision or of any other provision hereof.
[SIGNATURE PAGE FOLLOWS]
14
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date
first written above.
| XXXXXXX XXXXXXX INC., | ||||||
| a Maryland corporation | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
15
| [HOLDERS]: | ||||
16
Schedule 1
THE HOLDERS
| Name of the Holder | Address of the Holder | |
Xxxxx X. Xxxxxxxx
|
0000 Xxxxxx Xx, Xxxxxxx XX 00000 | |
Xxxxxx X. Xxxxxxxx
|
0000 Xxxxxxxxxx Xx, Xxxxxxxxx XX 00000 | |
Xxxxxxx X. Xxxxxxxx
|
000 Xxxxxxxxx Xxx, Xxxxxx Xxxxxx, XX 00000 | |
Xxxxx Capital Partners III Limited Partnership
|
000 Xxxx Xxxxxxxxx Xxxxxx, XX Xxx 0000, Xxxxxxxxx, XX 00000 | |
BCP III Affiliates Fund Limited Partnership
|
000 Xxxx Xxxxxxxxx Xxxxxx, XX Xxx 0000, Xxxxxxxxx, XX 00000 | |
BCP III Special Affiliates Fund Limited Partnership
|
000 Xxxx Xxxxxxxxx Xxxxxx, XX Xxx 0000, Xxxxxxxxx, XX 00000 | |
Xxxx X. Xxxxxxx
|
0000 Xxxxxxxxxxx Xx, Xxxxxxxxxxxx, XX 00000-0000 | |
Xxxxx Xxxxxxxxxx
|
0000 Xxxxxxxxxx Xxx, Xxxxxx XX 00000 | |
Xxxx X. Xxxxx
|
0000 Xxxxxxxx Xx, Xxxxxxxxxxxx XX 00000 | |
Xxxxxxx Xxxxxx
|
0000 Xxxx Xxxxxxx Xx, Xxxxxxx XX 00000 | |
Xxxxxxx X. Furry
|
0000 Xxxxxx Xx, Xxxxx Xxxxxx XX 00000 | |
Xxxxx X. Xxxxxx
|
0000 Xxxxxxxxxx Xxxx, Xxxxxxxxx XX 00000 | |
Xxxxx X. Xxxx
|
000 Xxxx Xxxxx, Xxxxxxxxx XX 00000 | |
Xxxxxx X. Xxxxx
|
0000 Xxxxx Xxxx Xxxx, Xxxxxxx XX 00000 | |
Xxxxx X. Xxxxxxx
|
0000 Xxx Xxxx Xxxxx, Xxxxxxxxx XX 00000 | |
Xxxx X. Xxxxxxx
|
465 CTH-MM, Xxxxxxxx XX 00000 | |
Xxxxx X. Xxxxx
|
0000 Xxxxxxxxxx Xxxx, Xxxxxxx XX 00000 | |
Xxxxxx Xxxxxxxx
|
0000 Xxxxx Xxxx, X0, Xxxxx Xxxxxx XX 00000 |
17
| Name of the Holder | Address of the Holder | |
Xxxxxxxx XxXxxxx
|
000 Xxxxxxxxxx Xxx, Xxxxxxx XX 00000 | |
Xxxxx X. Xxxxxxxxx
|
0000 Xxxxxx Xxxxx, Xxxxxxxxxx XX 00000 | |
Xxxxx X. Xxxxx
|
0000 Xxxxxxxxx Xxxx, Xxxxxxxxx XX 00000 | |
Lubar Capital, LLC
|
000 X. Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000 | |
Xxxxxxx X. Xxxxx
|
0000 Xxxxxxx Xxxx Xx, Xxxxxxx XX 00000 | |
Xxxxx X. Xxxxxx
|
0000 Xxx Xxxx Xxxx #000, Xxxxxxx XX 00000 | |
Xxxxxxx X. Xxxxxxx
|
0000 Xxx Xxxxxx Xxxxx, Xxxxx XX 00000 | |
Xxxxxxx X. Xxxxxxxx
|
0000 Xxxxx Xxxx, Xxxxxxxxxxx XX 00000 | |
Xxxxxxx X. Xxxx, Xx.
|
XX Xxx 000, Xxxxxx, XX 00000 | |
Xxxxxx X. Xxxxxxxx
|
00000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx, XX 00000 | |
Xxxxxx X. Xxxxx
|
000 Xxxxxx Xx., Xxxxxxxx XX 00000 | |
Xxxxxxxx X. Xxxxxxx
|
0000 Xxxxx Xxxx Xxxx, Xxxxxx XX 00000 | |
Xxxxx X. Xxxxxx
|
0000 Xxx Xxx Xxxxx, Xxxxxxx XX 00000 | |
Xxxxx X. Xxxxxxx
|
000 Xxxxxx Xxxxxx, Xxxxxx XX 00000 | |
Xxxxx X. Xxxxxxxx
|
0000 Xxxxxx Xx, Xxxxxx XX 00000 | |
Xxxxx X. Xxxxxxxx
|
000 Xxxxxxxxx Xxxxxxx, Xxxxxx XX 00000 | |
Xxxx X. Xxxxx
|
00 Xxxxxxxxxx Xxxxx, Xxxxxxx XX 00000 | |
Xxxx X. Xxxxxxx
|
0000 Xxxxxxxxxxx Xxx, Xxxxxxxx XX 00000 | |
Xxxxx X. Xxxxxxxxxx
|
0000 Xxxxxxx Xxxxx Xx, Xxxxxxxxx XX 00000 | |
Xxxxxx X. Xxxxx
|
0000 Xxxxx Xxxx, Xxxxx Xxxxxx XX 00000 | |
Xxxxxx X. Xxxxxxx
|
0000 Xxxxx Xxxxx Xxxxx, Xxxxxx XX 00000 | |
Xxx X. Xxxxx
|
0000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxx XX 00000 |
18
