EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
by and among
TAS HOLDING, INC.
and
THE INITIAL HOLDERS SPECIFIED ON
THE SIGNATURE PAGES HEREOF
Dated as of April 10, 2006
REGISTRATION RIGHTS AGREEMENT (this or the "Agreement") dated as of
April 10, 2006, by and among TAS Holding, Inc., a Delaware corporation (the
"Company"), and the Initial Holders specified on the signature pages to this
Agreement.
W I T N E S S E T H:
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WHEREAS, simultaneously herewith, the Company and the Initial Holders
are entering into a Transaction Agreement (the "Transaction Agreement"),
pursuant to which the Company is issuing, and the Initial Holders are
purchasing, certain securities of the Company; and
WHEREAS, in order to induce the Initial Holders to enter into the
Transaction Agreement, the Company has agreed to provide certain registration
rights on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, and for other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings:
"AFFILIATE" shall mean (i) with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person, and (ii) with respect to any individual, shall
also mean the spouse, sibling, child, step-child, grandchild, niece, nephew or
parent of such Person, or the spouse thereof.
"BLACKOUT PERIOD" shall have the meaning set forth in Section 2.6.
"COMMON SHARES" shall mean shares of common stock, par value $0.01 per
share, of the Company.
"COMPANY" shall have the meaning set forth in the preamble.
Notwithstanding anything in this Agreement to the contrary, the term "Company"
shall mean, without limitation, any successor corporation into which the Company
is merged.
"DEMAND REGISTRATION" shall mean a registration required to be effected
by the Company pursuant to Section 2.1.
"DEMAND REGISTRATION STATEMENT" shall mean a registration statement of
the Company which covers the Registrable Securities requested to be included
therein pursuant to the provisions of Section 2.1 and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference (or deemed to be incorporated by
reference) therein.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations thereunder, or any
successor statute.
"HOLDERS" shall mean each of the Initial Holders for so long as it owns
any Registrable Securities and such of its respective heirs, successors and
permitted assigns (including any permitted transferees of Registrable
Securities) who acquire or are otherwise the transferee of Registrable
Securities, directly or indirectly, from such Initial Holder (or any subsequent
Holder), for so long as such heirs, successors and permitted assigns own any
Registrable Securities. For purposes of this Agreement, a Person will be deemed
to be a Holder whenever such Person holds an option to purchase, or a security
convertible into or exercisable or exchangeable for, Registrable Securities,
whether or not such purchase, conversion, exercise or exchange has actually been
effected and disregarding any legal restrictions upon the exercise of such
rights. Registrable Securities issuable upon exercise of an option or upon
conversion, exchange or exercise of another security shall be deemed outstanding
for the purposes of this Agreement.
"HOLDERS' COUNSEL" shall mean one firm of counsel (per registration) to
the Holders of Registrable Securities participating in such registration, which
counsel shall be selected (i) in the case of a Demand Registration or an S-3
Registration, by the Initiating Holders holding a majority of the Registrable
Securities for which registration was requested in the Request, and (ii) in all
other cases, by the Majority Holders of the Registration.
"INCIDENTAL REGISTRATION" shall mean a registration required to be
effected by the Company pursuant to Section 2.2.
"INCIDENTAL REGISTRATION STATEMENT" shall mean a registration statement
of the Company which covers the Registrable Securities requested to be included
therein pursuant to the provisions of Section 2.2 and all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference (or deemed to be incorporated by
reference) therein.
"INITIAL HOLDERS" shall mean the Persons specified as such on the
signature pages to this Agreement on the date hereof.
"INITIAL PUBLIC OFFERING" shall mean the first public offering of any
class of securities of the Company pursuant to a registration statement filed
with and declared effective by the SEC.
"INITIATING HOLDERS" shall mean, with respect to a particular
registration, the Holders who initiated the Request for such registration.
"INSPECTORS" shall have the meaning set forth in Section 4.1(g).
"MAJORITY HOLDERS" shall mean one or more Holders of Registrable
Securities who would hold a majority of the Registrable Securities then
outstanding.
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"MAJORITY HOLDERS OF THE REGISTRATION" shall mean, with respect to a
particular registration, one or more Holders of Registrable Securities who would
hold a majority of the Registrable Securities to be included in such
registration.
"MINORITY STOCKHOLDER" means collectively, Owl Creek I, L.P., Owl Creek
II, L.P., Owl Creek Overseas Fund, Ltd. and Owl Creek Overseas Fund II, Ltd.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"PERSON" shall mean any individual, firm, partnership, corporation,
trust, joint venture, association, joint stock company, limited liability
company, unincorporated organization or any other entity or organization,
including a government or agency or political subdivision thereof, and shall
include any successor (by merger or otherwise) of such entity.
"PRINCIPAL STOCKHOLDER" means LJH, LTD.
"PROSPECTUs" shall mean the prospectus included in a Registration
Statement (including, without limitation, any preliminary prospectus and any
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), and any such Prospectus as amended or
supplemented by any prospectus supplement, and all other amendments and
supplements to such Prospectus, including post-effective amendments, and in each
case including all material incorporated by reference (or deemed to be
incorporated by reference) therein.
"REGISTRABLE SECURITIES" shall mean (i) any Common Shares issued to the
Initial Holders pursuant to the Transaction Agreement; (ii) any Common Shares
otherwise or hereafter purchased or acquired by the Holders or their Affiliates
and (iii) any other securities of the Company (or any successor or assign of the
Company, whether by merger, consolidation, sale of assets or otherwise) which
may be issued or issuable with respect to, in exchange for, or in substitution
of, Registrable Securities referenced in clauses (i) through (ii) above by
reason of any dividend or stock split, combination of shares, merger,
consolidation, recapitalization, reclassification, reorganization, sale of
assets or similar transaction. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when (A) a registration
statement with respect to the sale of such securities shall have been declared
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, (B) all such securities are
sold pursuant to Rule 144 (or any similar provisions then in force) under the
Securities Act, (C) such securities have been otherwise transferred, a new
certificate or other evidence of ownership for them not bearing the legend
restricting further transfer shall have been delivered by the Company and
subsequent public distribution of them shall not require registration under the
Securities Act, or (D) such securities shall have ceased to be outstanding.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance with this Agreement by the Company and its
subsidiaries, including, without limitation (i) all SEC, stock exchange, NASD
and other registration, listing and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state securities or blue sky
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laws and compliance with the rules of any stock exchange (including fees and
disbursements of counsel in connection with such compliance and the preparation
of a blue sky memorandum and legal investment survey), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing,
distributing, mailing and delivering any Registration Statement, any Prospectus,
any underwriting agreements, transmittal letters, securities sales agreements,
securities certificates and other documents relating to the performance of or
compliance with this Agreement, (iv) the fees and disbursements of counsel for
the Company, (v) the fees and disbursements of Holders' Counsel, (vi) the fees
and disbursements of all independent public accountants (including the expenses
of any audit and/or "cold comfort" letters) and the fees and expenses of other
Persons, including experts, retained by the Company, (vii) the expenses incurred
in connection with making road show presentations and holding meetings with
potential investors to facilitate the distribution and sale of Registrable
Securities which are customarily borne by the issuer, (viii) any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, and (ix) premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Registrable Securities
being registered; PROVIDED, HOWEVER, Registration Expenses shall not include
discounts and commissions payable to underwriters, selling brokers, dealer
managers or other similar Persons engaged in the distribution of any of the
Registrable Securities; and PROVIDED FURTHER, that in any case where
Registration Expenses are not to be borne by the Company, such expenses shall
not include salaries of Company personnel or general overhead expenses of the
Company, auditing fees, premiums or other expenses relating to liability
insurance required by underwriters of the Company or other expenses for the
preparation of financial statements or other data normally prepared by the
Company in the ordinary course of its business or which the Company would have
incurred in any event; and PROVIDED, FURTHER, that in the event the Company
shall, in accordance with Section 2.2 or Section 2.6 hereof, not register any
securities with respect to which it had given written notice of its intention to
register to Holders, notwithstanding anything to the contrary in the foregoing,
all of the costs incurred by the Holders in connection with such registration
shall be deemed to be Registration Expenses.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company which covers any Registrable Securities and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference (or deemed to be
incorporated by reference) therein.
"REQUEST" shall have the meaning set forth in Section 2.1(a).
"S-3 REGISTRATION" shall mean a registration required to be effected by
the Company pursuant to Section 2.3(a).
"SEC" shall mean the Securities and Exchange Commission, or any
successor agency having jurisdiction to enforce the Securities Act.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended from
time to time, and the rules and regulations thereunder, or any successor
statute.
"SHELF REGISTRATION" shall have the meaning set forth in Section
2.1(a).
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"TRANSACTION AGREEMENT" shall have the meaning set forth in the
preamble.
"UNDERWRITERS" shall mean the underwriters, if any, of the offering
being registered under the Securities Act.
"UNDERWRITTEN OFFERING" shall mean a sale of securities of the Company
to an Underwriter or Underwriters for reoffering to the public.
"WITHDRAWN DEMAND REGISTRATION" shall have the meaning set forth in
Section 2.1(a).
"WITHDRAWN REQUEST" shall have the meaning set forth in Section 2.1(a).
2. REGISTRATION UNDER THE SECURITIES ACT.
2.1 DEMAND REGISTRATION.
(a) RIGHT TO DEMAND REGISTRATION. Subject to Section 2.1(c), at any
time or from time to time the Principal Stockholder and the Minority Stockholder
shall have the right to request in writing that the Company register all or part
of such Holders' Registrable Securities (a "Request") (which Request shall
specify the amount of Registrable Securities intended to be disposed of by such
Holders and the intended method of disposition thereof) by filing with the SEC a
Demand Registration Statement. As promptly as practicable, but no later than 10
days after receipt of a Request, the Company shall give written notice of such
requested registration to all Holders of Registrable Securities. Subject to
Section 2.1(b), the Company shall include in a Demand Registration (i) the
Registrable Securities intended to be disposed of by the Initiating Holders and
(ii) the Registrable Securities intended to be disposed of by any other Holder
which shall have made a written request (which request shall specify the amount
of Registrable Securities to be registered and the intended method of
disposition thereof) to the Company for inclusion thereof in such registration
within 20 days after the receipt of such written notice from the Company. The
Company shall, as expeditiously as possible following a Request, use its best
efforts to cause to be filed with the SEC a Demand Registration Statement
providing for the registration under the Securities Act of the Registrable
Securities which the Company has been so requested to register by all such
Holders, to the extent necessary to permit the disposition of such Registrable
Securities so to be registered in accordance with the intended methods of
disposition thereof specified in such Request or further requests (including,
without limitation, by means of a shelf registration pursuant to Rule 415 under
the Securities Act (a "Shelf Registration") if so requested and if the Company
is then eligible to use such a registration). The Company shall use its best
efforts to have such Demand Registration Statement declared effective by the SEC
as soon as practicable thereafter and to keep such Demand Registration Statement
continuously effective for the period specified in Section 4.1(b).
A Request may be withdrawn prior to the filing of the Demand
Registration Statement by the Initiating Holders for which registration was
requested in the Request (a "Withdrawn Request") and a Demand Registration
Statement may be withdrawn prior to the effectiveness thereof by the Initiating
Holders for which registration was requested in the Request (a "Withdrawn Demand
Registration"), and such withdrawals shall be treated as a Demand Registration
which shall have been effected pursuant to this Section 2.1, unless the
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Holders of Registrable Securities to be included in such Registration Statement
reimburse the Company for its reasonable out-of-pocket Registration Expenses
relating to the preparation and filing of such Demand Registration Statement (to
the extent actually incurred); PROVIDED; HOWEVER, that if a Withdrawn Request or
Withdrawn Registration Statement is made (A) because of a material adverse
change in the business, financial condition or prospects of the Company, or (B)
because the sole or lead managing Underwriter advises that the amount of
Registrable Securities to be sold in such offering be reduced pursuant to
Section 2.1(b) by more than 10% of the Registrable Securities to be included in
such Registration Statement, or (C) because of a postponement of such
registration pursuant to Section 2.6, then such withdrawal shall not be treated
as a Demand Registration effected pursuant to this Section 2.1 (and shall not be
counted toward the number of Demand Registrations), and the Company shall pay
all Registration Expenses in connection therewith. Any Holder requesting
inclusion in a Demand Registration may, at any time prior to the effective date
of the Demand Registration Statement (and for any reason) revoke such request by
delivering written notice to the Company revoking such requested inclusion.
The registration rights granted pursuant to the provisions of this
Section 2.1 shall be in addition to the registration rights granted pursuant to
the other provisions of Section 2 hereof.
(b) PRIORITY IN DEMAND REGISTRATIONS. If a Demand Registration involves
an Underwritten Offering, and the sole or lead managing Underwriter, as the case
may be, of such Underwritten Offering shall advise the Company in writing (with
a copy to each Holder requesting registration) on or before the date five days
prior to the date then scheduled for such offering that, in its opinion, the
amount of Registrable Securities requested to be included in such Demand
Registration exceeds the number which can be sold in such offering within a
price range acceptable to the Majority Holders of the Registration (such writing
to state the basis of such opinion and the approximate number of Registrable
Securities which may be included in such offering), the Company shall include in
such Demand Registration, to the extent of the number which the Company is so
advised may be included in such offering, the Registrable Securities requested
to be included in the Demand Registration by the Holders allocated PRO RATA in
proportion to the number of Registrable Securities requested to be included in
such Demand Registration by each of them. In the event the Company shall not, by
virtue of this Section 2.1(b), include in any Demand Registration all of the
Registrable Securities of any Holder requesting to be included in such Demand
Registration, such Holder may, upon written notice to the Company given within
five days of the time such Holder first is notified of such matter, reduce the
amount of Registrable Securities it desires to have included in such Demand
Registration, whereupon only the Registrable Securities, if any, it desires to
have included will be so included and the Holders not so reducing shall be
entitled to a corresponding increase in the amount of Registrable Securities to
be included in such Demand Registration.
(c) LIMITATIONS ON REGISTRATIONS. The rights of Holders of Registrable
Securities to request Demand Registrations pursuant to Section 2.1(a) are
subject to the following limitations: (i) in no event shall the Company be
required to effect a Demand Registration until after March 15, 2008,(ii) the
Company shall not be obligated to effect a Demand Registration unless 150 days
have elapsed since the last day that a prior Demand Registration Statement
remained effective (or, if earlier, the day on which the last of the
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Registrable Securities covered by such prior Demand Registration Statement was
sold), and (iii) in no event shall the Company be required to pay Registration
Expenses of more than two Demand Registrations by each of the Principal
Stockholder and the Minority Stockholder; PROVIDED, HOWEVER, (i) that such
number shall be increased to the extent the Company does not include in what
would otherwise be the final registration for which the Company is required to
pay Registration Expenses the number of Registrable Securities requested to be
registered by the Holders by reason of Section 2.1(b) and (ii) the Minority
Stockholder shall be deemed not to have exercised a demand right to the extent
the Principal Stockholder exercises its rights under Section 3.7 of the
Stockholders' Agreement; and PROVIDED, FURTHER, that the Registration Expenses
in connection with each other Demand Registration shall be allocated pro rata
among all Persons on whose behalf securities of the Company are included in such
registration, on the basis of the respective amounts of the securities then
being registered on their behalf.
(d) UNDERWRITING; SELECTION OF UNDERWRITERS. Notwithstanding anything
to the contrary contained in Section 2.1(a), if the Initiating Holders for which
registration was requested in the Request so elect, the offering of such
Registrable Securities pursuant to such Demand Registration shall be in the form
of a firm commitment Underwritten Offering; and such Initiating Holders may
require that all Persons (including other Holders) participating in such
registration sell their Registrable Securities to the Underwriters at the same
price and on the same terms of underwriting applicable to the Initiating
Holders. If any Demand Registration involves an Underwritten Offering, the sole
or managing Underwriters and any additional investment bankers and managers to
be used in connection with such registration shall be selected by the Initiating
Holders for which registration was requested in the Request, subject to the
approval of the Company (such approval not to be unreasonably withheld).
(e) REGISTRATION OF OTHER SECURITIES. Whenever the Company shall effect
a Demand Registration, no securities other than the Registrable Securities shall
be covered by such registration unless the Initiating Holders for which
registration was requested in the Request shall have consented in writing to the
inclusion of such other securities.
(f) EFFECTIVE REGISTRATION STATEMENT; SUSPENSION. A Demand Registration
Statement shall not be deemed to have become effective (and the related
registration will not be deemed to have been effected) (i) unless it has been
declared effective by the SEC and remains effective in compliance with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such Demand Registration Statement for the
time period specified in Section 4.1(b), (ii) if the offering of any Registrable
Securities pursuant to such Demand Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, or (iii) if, in the case of an Underwritten
Offering, the conditions to closing specified in an underwriting agreement to
which the Company is a party are not satisfied other than by the sole reason of
any breach or failure by the Holders of Registrable Securities or are not
otherwise waived.
(g) OTHER REGISTRATIONS. During the period (i) beginning on the date of
a Request and (ii) ending on the date that is 90 days after the date that a
Demand Registration Statement filed pursuant to such Request has been declared
effective by the SEC or, if the Holders shall withdraw such Request or such
Demand Registration Statement, on the date of such Withdrawn Request or such
Withdrawn Registration Statement, the Company shall not,
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without the consent of the Initiating Holders for which registration was
requested in the Request, file a registration statement pertaining to any other
securities of the Company.
(h) REGISTRATION STATEMENT FORM. Registrations under this Section 2.1
shall be on such appropriate registration form of the SEC (i) as shall be
selected by the Initiating Holders for which registration was requested in the
Request, and (ii) which shall be available for the sale of Registrable
Securities in accordance with the intended method or methods of disposition
specified in the requests for registration. The Company agrees to include in any
such Registration Statement all information which any selling Holder, upon
advice of counsel, shall reasonably request.
2.2 INCIDENTAL REGISTRATION.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. If the Company at any time
or from time to time proposes to register any of its securities under the
Securities Act (other than in a registration on Form S-4 or S-8 or any successor
form to such forms and other than pursuant to Section 2.1 or 2.3) whether or not
pursuant to registration rights granted to other holders of its securities and
whether or not for sale for its own account, the Company shall deliver prompt
written notice (which notice shall be given at least 30 days prior to such
proposed registration) to all Holders of Registrable Securities of its intention
to undertake such registration, describing in reasonable detail the proposed
registration and distribution (including the anticipated range of the proposed
offering price, the class and number of securities proposed to be registered and
the distribution arrangements) and of such Holders' right to participate in such
registration under this Section 2.2 as hereinafter provided. Subject to the
other provisions of this paragraph (a) and Section 2.2(b), upon the written
request of any Holder made within 20 days after the receipt of such written
notice (which request shall specify the amount of Registrable Securities to be
registered and the intended method of disposition thereof), the Company shall
effect the registration under the Securities Act of all Registrable Securities
requested by Holders to be so registered (an "Incidental Registration"), to the
extent requisite to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities so to be registered,
by inclusion of such Registrable Securities in the Registration Statement which
covers the securities which the Company proposes to register and shall cause
such Registration Statement to become and remain effective with respect to such
Registrable Securities in accordance with the registration procedures set forth
in Section 4. If an Incidental Registration involves an Underwritten Offering,
immediately upon notification to the Company from the Underwriter of the price
at which such securities are to be sold, the Company shall so advise each
participating Holder. The Holders requesting inclusion in an Incidental
Registration may, at any time prior to the effective date of the Incidental
Registration Statement (and for any reason), revoke such request by delivering
written notice to the Company revoking such requested inclusion.
If at any time after giving written notice of its intention to
register any securities and prior to the effective date of the Incidental
Registration Statement filed in connection with such registration, the Company
shall determine for any reason not to register or to delay registration of such
securities, the Company may, at its election, give written notice of such
determination to each Holder of Registrable Securities and, thereupon, (A) in
the case of a determination not to register, the Company shall be relieved of
its obligation to register any
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Registrable Securities in connection with such registration (but not from its
obligation to pay the Registration Expenses incurred in connection therewith),
without prejudice, however, to the rights of Holders to cause such registration
to be effected as a registration under Section 2.1 or 2.3(a), and (B) in the
case of a determination to delay such registration, the Company shall be
permitted to delay the registration of such Registrable Securities for the same
period as the delay in registering such other securities; PROVIDED, HOWEVER,
that if such delay shall extend beyond 120 days from the date the Company
received a request to include Registrable Securities in such Incidental
Registration, then the Company shall again give all Holders the opportunity to
participate therein and shall follow the notification procedures set forth in
the preceding paragraph. There is no limitation on the number of such Incidental
Registrations pursuant to this Section 2.2 which the Company is obligated to
effect.
The registration rights granted pursuant to the provisions of this
Section 2.2 shall be in addition to the registration rights granted pursuant to
the other provisions of Section 2 hereof.
(b) PRIORITY IN INCIDENTAL REGISTRATION. If an Incidental Registration
involves an Underwritten Offering (on a firm commitment basis), and the sole or
the lead managing Underwriter, as the case may be, of such Underwritten Offering
shall advise the Company in writing (with a copy to each Holder requesting
registration) on or before the date five days prior to the date then scheduled
for such offering that, in its opinion, the amount of securities (including
Registrable Securities) requested to be included in such registration exceeds
the amount which can be sold in such offering without interfering with the
successful marketing of the securities being offered (such writing to state the
basis of such opinion and the approximate number of such securities which may be
included in such offering without such effect), the Company shall include in
such registration, to the extent of the number which the Company is so advised
may be included in such offering without such effect, (i) in the case of a
registration initiated by the Company, (A) first, the securities that the
Company proposes to register for its own account, (B) second, the Registrable
Securities requested to be included in such registration by the Holders,
allocated PRO RATA in proportion to the number of Registrable Securities
requested to be included in such registration by each of them, and (C) third,
other securities of the Company to be registered on behalf of any other Person,
and (ii) in the case of a registration initiated by a Person other than the
Company, (A) first, the Registrable Securities requested to be included in such
registration by the Holders and by any Persons initiating such registration,
allocated PRO RATA in proportion to the number of securities requested to be
included in such registration by each of them, (B) second, the securities that
the Company proposes to register for its own account, and (C) third, other
securities of the Company to be registered on behalf of any other Person;
PROVIDED, HOWEVER, that in the event the Company will not, by virtue of this
Section 2.2(b), include in any such registration all of the Registrable
Securities of any Holder requested to be included in such registration, such
Holder may, upon written notice to the Company given within three days of the
time such Holder first is notified of such matter, reduce the amount of
Registrable Securities it desires to have included in such registration,
whereupon only the Registrable Securities, if any, it desires to have included
will be so included and the Holders not so reducing shall be entitled to a
corresponding increase in the amount of Registrable Securities to be included in
such registration.
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(c) SELECTION OF UNDERWRITERS. If any Incidental Registration involves
an Underwritten Offering, the sole or managing Underwriter(s) and any additional
investment bankers and managers to be used in connection with such registration
shall be subject to the approval of the Majority Holders of the Registration
(such approval not to be unreasonably withheld).
2.3 S-3 REGISTRATION; SHELF REGISTRATION.
(a) S-3 REGISTRATION. If at any time (i) one or more Holders of
Registrable Securities representing 10% or more of the Registrable Securities
then outstanding request that the Company file a registration statement on Form
S-3 or any successor form thereto for a public offering of all or any portion of
the shares of Registrable Securities held by such Holder or Holders, the
reasonably anticipated aggregate price to the public of which would exceed
$1,000,000, and (ii) the Company is a registrant entitled to use Form S-3 or any
successor form thereto to register such securities, then the Company shall, as
expeditiously as possible following such Request, use its best efforts to
register under the Securities Act on Form S-3 or any successor form thereto, for
public sale in accordance with the intended methods of disposition specified in
such Request or any subsequent requests (including, without limitation, by means
of a Shelf Registration) the Registrable Securities specified in such Request
and any subsequent requests; PROVIDED, that if such registration is for an
Underwritten Offering, the terms of Sections 2.1(b) and 2.1(d) shall apply (and
any reference to "Demand Registration" therein shall, for purposes of this
Section 2.3, instead be deemed a reference to "S-3 Registration"). Whenever the
Company is required by this Section 2.3 to use its best efforts to effect the
registration of Registrable Securities, each of the procedures and requirements
of Section 2.1(a) and 2.1(e) (including but not limited to the requirements that
the Company (A) notify all Holders of Registrable Securities from whom such
Request for registration has not been received and provide them with the
opportunity to participate in the offering and (B) use its best efforts to have
such S-3 Registration Statement declared and remain effective for the time
period specified herein) shall apply to such registration (and any reference in
such Sections 2.1(a) and 2.1(e) to "Demand Registration" shall, for purposes of
this Section 2.3, instead be deemed a reference to "S-3 Registration").
Notwithstanding anything to the contrary contained herein, no Request may be
made under this Section 2.3 within 90 days after the effective date of a
Registration Statement filed by the Company covering a firm commitment
Underwritten Offering in which the Holders of Registrable Securities shall have
been entitled to join pursuant to this Agreement in which there shall have been
effectively registered all shares of Registrable Securities as to which
registration shall have been requested. There is no limitation on the number of
S-3 Registrations that the Company is obligated to effect.
The registration rights granted pursuant to the provisions of this
Section 2.3(a) shall be in addition to the registration rights granted pursuant
to the other provisions of this Section 2.
(b) SHELF REGISTRATION. If a request made pursuant to Section 2.1 or
2.3(a) is for a Shelf Registration, the Company shall use its best efforts to
keep the Shelf Registration continuously effective through the date on which all
of the Registrable Securities covered by such Shelf Registration may be sold
pursuant to Rule 144(k) under the Securities Act (or any successor provision
having similar effect); PROVIDED, HOWEVER, that prior to the termination of
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such Shelf Registration, the Company shall first furnish to each Holder of
Registrable Securities participating in such Shelf Registration (i) an opinion,
in form and substance satisfactory to the Majority Holders of the Registration,
of counsel for the Company satisfactory to the Majority Holders of the
Registration stating that such Registrable Securities are freely saleable
pursuant to Rule 144(k) under the Securities Act (or any successor provision
having similar effect) or (ii) a "No-Action Letter" from the staff of the SEC
stating that the SEC would not recommend enforcement action if the Registrable
Securities included in such Shelf Registration were sold in a public sale other
than pursuant to an effective registration statement.
2.4 EXPENSES. The Company shall pay all Registration Expenses in
connection with any Demand Registration, Incidental Registration, S-3
Registration or Shelf Registration, whether or not such registration shall
become effective and whether or not all Registrable Securities originally
requested to be included in such registration are withdrawn or otherwise
ultimately not included in such registration, except as otherwise provided with
respect to a Withdrawn Request and a Withdrawn Demand Registration in Section
2.1(a). Each Holder shall pay all discounts and commissions payable to
underwriters, selling brokers, managers or other similar Persons engaged in the
distribution of such Holder's Registrable Securities pursuant to any
registration pursuant to this Section 2.
2.5 UNDERWRITTEN OFFERINGS.
(a) DEMAND UNDERWRITTEN OFFERINGS. If requested by the sole or lead
managing Underwriter for any Underwritten Offering effected pursuant to a Demand
Registration or an S-3 Registration, the Company shall enter into a customary
underwriting agreement with the Underwriters for such offering, such agreement
to be reasonably satisfactory in substance and form to each Holder of
Registrable Securities participating in such offering and to contain such
representations and warranties by the Company and such other terms as are
generally prevailing in agreements of that type, including, without limitation,
indemnification and contribution to the effect and to the extent provided in
Section 5.
(b) HOLDERS OF REGISTRABLE SECURITIES TO BE PARTIES TO UNDERWRITING
AGREEMENT. The Holders of Registrable Securities to be distributed by
Underwriters in an Underwritten Offering contemplated by Section 2 shall be
parties to the underwriting agreement between the Company and such Underwriters
and may, at such Holders' option, require that any or all of the representations
and warranties by, and the other agreements on the part of, the Company to and
for the benefit of such Underwriters shall also be made to and for the benefit
of such Holders of Registrable Securities and that any or all of the conditions
precedent to the obligations of such Underwriters under such underwriting
agreement be conditions precedent to the obligations of such Holders of
Registrable Securities; PROVIDED, HOWEVER, that the Company shall not be
required to make any representations or warranties with respect to written
information specifically provided by a selling Holder for inclusion in the
Registration Statement. No Holder shall be required to make any representations
or warranties to, or agreements with, the Company or the Underwriters other than
representations, warranties or agreements regarding such Holder, such Holder's
Registrable Securities and such Holder's intended method of disposition.
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(c) PARTICIPATION IN UNDERWRITTEN REGISTRATION. Notwithstanding
anything herein to the contrary, no Person may participate in any underwritten
registration hereunder unless such Person (i) agrees to sell its securities on
the same terms and conditions provided in any underwritten arrangements approved
by the Persons entitled hereunder to approve such arrangement and (ii)
accurately completes and executes in a timely manner all questionnaires, powers
of attorney, indemnities, custody agreements, underwriting agreements and other
documents reasonably required under the terms of such underwriting arrangements.
2.6 POSTPONEMENTS. The Company shall be entitled to postpone a Demand
Registration and an S-3 Registration and to require the Holders of Registrable
Securities to discontinue the disposition of their securities covered by a Shelf
Registration during any Blackout Period (as defined below) (i) if the Board of
Directors of the Company determines in good faith that effecting such a
registration or continuing such disposition at such time would have a material
adverse effect upon a proposed sale of all (or substantially all) of the assets
of the Company or a merger, reorganization, recapitalization or similar current
transaction materially affecting the capital structure or equity ownership of
the Company, or (ii) if the Company is in possession of material information
which the Board of Directors of the Company determines in good faith it is not
in the best interests of the Company to disclose in a registration statement at
such time; provided, however, that the Company may only delay a Demand
Registration or an S-3 Registration pursuant to this Section 2.6 by delivery of
a Blackout Notice (as defined below) within 30 days of delivery of the request
for such Registration under Section 2.1 or Section 2.3, as applicable, and may
delay a Demand Registration or an S-3 Registration and require the Holders of
Registrable Securities to discontinue the disposition of their securities
covered by a Shelf Registration only for a reasonable period of time not to
exceed 90 days (or such earlier time as such transaction is consummated or no
longer proposed or the material information has been made public) (the "Blackout
Period"). There shall not be more than one Blackout Period in any 12 month
period. The Company shall promptly notify the Holders in writing (a "Blackout
Notice") of any decision to postpone a Demand Registration or an S-3
Registration or to discontinue sales of Registrable Securities covered by a
Shelf Registration pursuant to this Section 2.6 and shall include a general
statement of the reason for such postponement, an approximation of the
anticipated delay and an undertaking by the Company promptly to notify the
Holders as soon as a Demand Registration or an S-3 Registration may be effected
or sales of Registrable Securities covered by a Shelf Registration may resume.
In making any such determination to initiate or terminate a Blackout Period, the
Company shall not be required to consult with or obtain the consent of any
Holder, and any such determination shall be the Company's sole responsibility.
Each Holder shall treat all notices received from the Company pursuant to this
Section 2.6 in the strictest confidence and shall not disseminate such
information. If the Company shall postpone the filing of a Demand Registration
Statement or an S-3 Registration Statement, the Initiating Holders for which
registration was requested in the Request who were to participate therein shall
have the right to withdraw the request for registration. Any such withdrawal
shall be made by giving written notice to the Company within 30 days after
receipt of the Blackout Notice. Such withdrawn registration request shall not be
treated as a Demand Registration effected pursuant to Section 2.1 (and shall not
be counted towards the number of Demand Registrations effected), and the Company
shall pay all Registration Expenses in connection therewith.
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3. HOLDBACK ARRANGEMENTS.
3.1 RESTRICTIONS ON SALE BY HOLDERS OF REGISTRABLE SECURITIES. Each
Holder of Registrable Securities agrees, by acquisition of such Registrable
Securities, if timely requested in writing by the sole or lead managing
Underwriter in an Underwritten Offering of any Registrable Securities, not to
make any short sale of, loan, grant any option for the purchase of or effect any
public sale or distribution, including a sale pursuant to Rule 144 (or any
successor provision having similar effect) under the Securities Act of any
Registrable Securities or any other equity security of the Company (or any
security convertible into or exchangeable or exercisable for any equity security
of the Company) (except as part of such underwritten registration), during the
time period reasonably requested by the sole or lead managing Underwriter not to
exceed 90 days, beginning on the effective date of the applicable Registration
Statement.
3.2 RESTRICTIONS ON SALE BY THE COMPANY AND OTHERS. The Company agrees
that (i) if timely requested in writing by the sole or lead managing Underwriter
in an Underwritten Offering of any Registrable Securities, not to make any short
sale of, loan, grant any option for the purchase of or effect any public sale or
distribution of any of the Company's equity securities (or any security
convertible into or exchangeable or exercisable for any of the Company's equity
securities) during the time period reasonably requested by the sole or lead
managing Underwriter not to exceed 90 days, beginning on the effective date of
the applicable Registration Statement (except as part of such underwritten
registration or pursuant to registrations on Forms S-4 or S-8 or any successor
form to such forms), and (ii) it will cause each holder of equity securities (or
any security convertible into or exchangeable or exercisable for any of its
equity securities) of the Company purchased from the Company at any time after
the date of this Agreement (other than in a registered public offering) to so
agree.
4. REGISTRATION PROCEDURES.
4.1 OBLIGATIONS OF THE COMPANY. Whenever the Company is required to
effect the registration of Registrable Securities under the Securities Act
pursuant to Section 2 of this Agreement, the Company shall, as expeditiously as
possible:
(a) prepare and file with the SEC (promptly, and in any event
within 60 days after receipt of a request to register Registrable Securities)
the requisite Registration Statement to effect such registration, which
Registration Statement shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith, and the Company shall use its best
efforts to cause such Registration Statement to become effective (PROVIDED, that
the Company may discontinue any registration of its securities that are not
Registrable Securities, and, under the circumstances specified in Section 2.2,
its securities that are Registrable Securities); PROVIDED, HOWEVER, that before
filing a Registration Statement or Prospectus or any amendments or supplements
thereto, or comparable statements under securities or blue sky laws of any
jurisdiction, the Company shall (i) provide Holders' Counsel and any other
Inspector with an adequate and appropriate opportunity to participate in the
preparation of such Registration Statement and each Prospectus included therein
(and each amendment or supplement thereto or comparable statement) to be filed
with the SEC, which documents shall be subject to the review and comment of
Holders' Counsel, and (ii) not file any such Registration Statement or
Prospectus (or amendment or
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supplement thereto or comparable statement) with the SEC to which Holder's
Counsel, any selling Holder or any other Inspector shall have reasonably
objected on the grounds that such filing does not comply in all material
respects with the requirements of the Securities Act or of the rules or
regulations thereunder;
(b) prepare and file with the SEC such amendments and supplements
to such Registration Statement and the Prospectus used in connection therewith
as may be necessary (i) to keep such Registration Statement effective, and (ii)
to comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such Registration
Statement, in each case until such time as all of such Registrable Securities
have been disposed of in accordance with the intended methods of disposition by
the seller(s) thereof set forth in such Registration Statement; PROVIDED, that
except with respect to any Shelf Registration, such period need not extend
beyond nine months after the effective date of the Registration Statement; and
PROVIDED FURTHER, that with respect to any Shelf Registration, such period need
not extend beyond the time period provided in Section 2.3, and which periods, in
any event, shall terminate when all Registrable Securities covered by such
Registration Statement have been sold (but not before the expiration of the 90
day period referred to in Section 4(3) of the Securities Act and Rule 174
thereunder, if applicable);
(c) furnish, without charge, to each selling Holder of such
Registrable Securities and each Underwriter, if any, of the securities covered
by such Registration Statement, such number of copies of such Registration
Statement, each amendment and supplement thereto (in each case including all
exhibits), and the Prospectus included in such Registration Statement (including
each preliminary Prospectus) in conformity with the requirements of the
Securities Act, and other documents, as such selling Holder and Underwriter may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities owned by such selling Holder (the Company hereby
consenting to the use in accordance with applicable law of each such
Registration Statement (or amendment or post-effective amendment thereto) and
each such Prospectus (or preliminary prospectus or supplement thereto) by each
such selling Holder of Registrable Securities and the Underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
such Registration Statement or Prospectus);
(d) prior to any public offering of Registrable Securities, use its
best efforts to register or qualify all Registrable Securities and other
securities covered by such Registration Statement under such other securities or
blue sky laws of such jurisdictions as any selling Holder of Registrable
Securities covered by such Registration Statement or the sole or lead managing
Underwriter, if any, may reasonably request to enable such selling Holder to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such selling Holder and to continue such registration or qualification
in effect in each such jurisdiction for as long as such Registration Statement
remains in effect (including through new filings or amendments or renewals), and
do any and all other acts and things which may be necessary or advisable to
enable any such selling Holder to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such selling Holder;
PROVIDED, HOWEVER, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this Section 4.1(d), (ii) subject itself to taxation
in any such jurisdiction, or (iii) consent to general service of process in any
such jurisdiction;
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(e) use its best efforts to obtain all other approvals, consents,
exemptions or authorizations from such governmental agencies or authorities as
may be necessary to enable the selling Holders of such Registrable Securities to
consummate the disposition of such Registrable Securities;
(f) promptly notify Holders' Counsel, each Holder of Registrable
Securities covered by such Registration Statement and the sole or lead managing
Underwriter, if any: (i) when the Registration Statement, any pre-effective
amendment, the Prospectus or any prospectus supplement related thereto or
post-effective amendment to the Registration Statement has been filed and, with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective, (ii) of any request by the SEC or any state
securities or blue sky authority for amendments or supplements to the
Registration Statement or the Prospectus related thereto or for additional
information, (iii) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation or threat of any
proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such purpose, (v) of the
existence of any fact of which the Company becomes aware or the happening of any
event which results in (A) the Registration Statement containing an untrue
statement of a material fact or omitting to state a material fact required to be
stated therein or necessary to make any statements therein not misleading, or
(B) the Prospectus included in such Registration Statement containing an untrue
statement of a material fact or omitting to state a material fact required to be
stated therein or necessary to make any statements therein, in the light of the
circumstances under which they were made, not misleading, (vi) if at any time
the representations and warranties contemplated by Section 2.5(b) cease to be
true and correct in all material respects, and (vii) of the Company's reasonable
determination that a post-effective amendment to a Registration Statement would
be appropriate or that there exists circumstances not yet disclosed to the
public which make further sales under such Registration Statement inadvisable
pending such disclosure and post-effective amendment; and, if the notification
relates to an event described in any of the clauses (ii) through (vii) of this
Section 4.1(f), the Company shall promptly prepare a supplement or
post-effective amendment to such Registration Statement or related Prospectus or
any document incorporated therein by reference or file any other required
document so that (1) such Registration Statement shall 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
(2) as thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder, such Prospectus shall not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein in the light of the circumstances
under which they were made not misleading (and shall furnish to each such Holder
and each Underwriter, if any, a reasonable number of copies of such Prospectus
so supplemented or amended); and if the notification relates to an event
described in clause (iii) of this Section 4.1(f), the Company shall take all
reasonable action required to prevent the entry of such stop order or to remove
it if entered;
(g) make available for inspection by any selling Holder of Registrable
Securities, any sole or lead managing Underwriter participating in any
disposition pursuant to such Registration Statement, Holders' Counsel and any
attorney, accountant or other agent
- 15 -
retained by any such seller or any Underwriter (each, an "Inspector" and,
collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company and any subsidiaries thereof
as may be in existence at such time (collectively, the "Records") as shall be
necessary, in the opinion of such Holders' and such Underwriters' respective
counsel, to enable them to exercise their due diligence responsibility and to
conduct a reasonable investigation within the meaning of the Securities Act, and
cause the Company's and any subsidiaries' officers, directors and employees, and
the independent public accountants of the Company, to supply all information
reasonably requested by any such Inspectors in connection with such Registration
Statement;
(h) obtain an opinion from the Company's counsel and a "cold comfort"
letter from the Company's independent public accountants who have certified the
Company's financial statements included or incorporated by reference in such
Registration Statement, in each case dated the effective date of such
Registration Statement (and if such registration involves an Underwritten
Offering, dated the date of the closing under the underwriting agreement), in
customary form and covering such matters as are customarily covered by such
opinions and "cold comfort" letters delivered to underwriters in underwritten
public offerings, which opinion and letter shall be reasonably satisfactory to
the sole or lead managing Underwriter, if any, and to the Majority Holders of
the Registration, and furnish to each Holder participating in the offering and
to each Underwriter, if any, a copy of such opinion and letter addressed to such
Holder (in the case of the opinion) and Underwriter (in the case of the opinion
and the "cold comfort" letter);
(i) provide a CUSIP number for all Registrable Securities and
provide and cause to be maintained a transfer agent and registrar for all such
Registrable Securities covered by such Registration Statement not later than the
effectiveness of such Registration Statement;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC and any other governmental agency or authority
having jurisdiction over the offering, and make available to its security
holders, as soon as reasonably practicable but no later than 90 days after the
end of any 12-month period, an earnings statement (i) commencing at the end of
any month in which Registrable Securities are sold to Underwriters in an
Underwritten Offering and (ii) commencing with the first day of the Company's
calendar month next succeeding each sale of Registrable Securities after the
effective date of a Registration Statement, which statement shall cover such
12-month periods, in a manner which satisfies the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder;
(k) if so requested by the Initiating Holders, use its best efforts
to cause all such Registrable Securities to be listed (i) on each national
securities exchange on which the Company's securities are then listed or (ii) if
securities of the Company are not at the time listed on any national securities
exchange (or if the listing of Registrable Securities is not permitted under the
rules of each national securities exchange on which the Company's securities are
then listed), on a national securities exchange designated by the Majority
Holders of the Registration;
(l) keep each selling Holder of Registrable Securities advised in
writing as to the initiation and progress of any registration under Xxxxxxx 0
xxxxxxxxx;
- 00 -
(x) enter into and perform customary agreements (including, if
applicable, an underwriting agreement in customary form) and provide officers'
certificates and other customary closing documents;
(n) cooperate with each selling Holder of Registrable Securities
and each Underwriter participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the NASD and make reasonably available its employees and
personnel and otherwise provide reasonable assistance to the Underwriters
(taking into account the needs of the Company's businesses and the requirements
of the marketing process) in the marketing of Registrable Securities in any
Underwritten Offering;
(o) furnish to each Holder participating in the offering and the
sole or lead managing Underwriter, if any, without charge, at least one
manually-signed copy of the Registration Statement and any post-effective
amendments thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those deemed to be
incorporated by reference);
(p) cooperate with the selling Holders of Registrable Securities
and the sole or lead managing Underwriter, if any, to facilitate the timely
preparation and delivery of certificates not bearing any restrictive legends
representing the Registrable Securities to be sold, and cause such Registrable
Securities to be issued in such denominations and registered in such names in
accordance with the underwriting agreement prior to any sale of Registrable
Securities to the Underwriters or, if not an Underwritten Offering, in
accordance with the instructions of the selling Holders of Registrable
Securities at least three business days prior to any sale of Registrable
Securities;
(q) if requested by the sole or lead managing Underwriter or any
selling Holder of Registrable Securities, immediately incorporate in a
prospectus supplement or post-effective amendment such information concerning
such Holder of Registrable Securities, the Underwriters or the intended method
of distribution as the sole or lead managing Underwriter or the selling Holder
of Registrable Securities reasonably requests to be included therein and as is
appropriate in the reasonable judgment of the Company, including, without
limitation, information with respect to the number of shares of the Registrable
Securities being sold to the Underwriters, the purchase price being paid
therefor by such Underwriters and with respect to any other terms of the
Underwritten Offering of the Registrable Securities to be sold in such offering;
make all required filings of such Prospectus supplement or post-effective
amendment as soon as notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment; and supplement or make
amendments to any Registration Statement if requested by the sole or lead
managing Underwriter of such Registrable Securities; and
(r) use its best efforts to take all other steps necessary to
expedite or facilitate the registration and disposition of the Registrable
Securities contemplated hereby.
4.2 SELLER INFORMATION. The Company may require each selling Holder of
Registrable Securities as to which any registration is being effected to furnish
to the Company such information regarding such Holder, such Holder's Registrable
Securities and such Holder's
- 17 -
intended method of disposition as the Company may from time to time reasonably
request in writing; PROVIDED that such information shall be used only in
connection with such registration.
If any Registration Statement or comparable statement under "blue
sky" laws refers to any Holder by name or otherwise as the Holder of any
securities of the Company, then such Holder shall have the right to require (i)
the insertion therein of language, in form and substance satisfactory to such
Holder and the Company, to the effect that the holding by such Holder of such
securities is not to be construed as a recommendation by such Holder of the
investment quality of the Company's securities covered thereby and that such
holding does not imply that such Holder will assist in meeting any future
financial requirements of the Company, and (ii) in the event that such reference
to such Holder by name or otherwise is not in the judgment of the Company, as
advised by counsel, required by the Securities Act or any similar federal
statute or any state "blue sky" or securities law then in force, the deletion of
the reference to such Holder.
4.3 NOTICE TO DISCONTINUE. Each Holder of Registrable Securities agrees
by acquisition of such Registrable Securities that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
4.1(f)(ii) through (vii), such Holder shall forthwith discontinue disposition of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 4.1(f) and, if so
directed by the Company, such Holder shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
Holder's possession of the Prospectus covering such Registrable Securities which
is current at the time of receipt of such notice. If the Company shall give any
such notice, the Company shall extend the period during which such Registration
Statement shall be maintained effective pursuant to this Agreement (including,
without limitation, the period referred to in Section 4.1(b)) by the number of
days during the period from and including the date of the giving of such notice
pursuant to Section 4.1(f) to and including the date when the Holder shall have
received the copies of the supplemented or amended prospectus contemplated by
and meeting the requirements of Section 4.1(f).
5. INDEMNIFICATION; CONTRIBUTION.
5.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and
hold harmless, to the fullest extent permitted by law, each Holder of
Registrable Securities, its officers, directors, partners, members,
shareholders, employees, Affiliates and agents (collectively, "Agents") and each
Person who controls such Holder (within the meaning of the Securities Act) and
its Agents with respect to each registration which has been effected pursuant to
this Agreement, against any and all losses, claims, damages or liabilities,
joint or several, actions or proceedings (whether commenced or threatened) in
respect thereof, and expenses (as incurred or suffered and including, but not
limited to, any and all expenses incurred in investigating, preparing or
defending any litigation or proceeding, whether commenced or threatened, and the
reasonable fees, disbursements and other charges of legal counsel) in respect
thereof (collectively, "Claims"), insofar as such Claims arise out of or are
based upon any untrue or alleged untrue statement of a material fact contained
in any Registration Statement or Prospectus (including any preliminary, final or
summary prospectus and any amendment or supplement thereto) related to any such
registration or any omission or alleged omission to state
- 18 -
a material fact required to be stated therein or necessary to make the
statements therein not misleading, , or any violation by the Company of the
Securities Act or any rule or regulation thereunder applicable to the Company
and relating to action or inaction required of the Company in connection with
any such registration, or any qualification or compliance incident thereto;
PROVIDED, HOWEVER, that the Company will not be liable in any such case to the
extent that any such Claims arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact or omission or alleged omission
of a material fact so made in reliance upon and in conformity with written
information furnished to the Company in an instrument duly executed by such
Holder specifically stating that it was expressly for use therein. The Company
shall also indemnify any Underwriters of the Registrable Securities, their
Agents and each Person who controls any such Underwriter (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the Holders of Registrable Securities. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of any Person who may be entitled to indemnification pursuant to this
Section 5 and shall survive the transfer of securities by such Holder or
Underwriter.
5.2 INDEMNIFICATION BY HOLDERS. Each Holder, if Registrable Securities
held by it are included in the securities as to which a registration is being
effected, agrees to, severally and not jointly, indemnify and hold harmless, to
the fullest extent permitted by law, the Company, its directors and officers,
each other Person who participates as an Underwriter in the offering or sale of
such securities and its Agents and each Person who controls the Company or any
such Underwriter (within the meaning of the Securities Act) and its Agents
against any and all Claims, insofar as such Claims arise out of or are based
upon any untrue or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (including any preliminary, final or
summary prospectus and any amendment or supplement thereto) related to such
registration, or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, to the extent, but only to the extent, that 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 in an instrument duly executed by such Holder specifically stating that
it was expressly for use therein; PROVIDED, HOWEVER, that the aggregate amount
which any such Holder shall be required to pay pursuant to this Section 5.2
shall in no event be greater than the amount of the net proceeds received by
such Holder upon the sale of the Registrable Securities pursuant to the
Registration Statement giving rise to such Claims less all amounts previously
paid by such Holder with respect to any such Claims. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
such indemnified party and shall survive the transfer of such securities by such
Holder or Underwriter.
5.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. Promptly after receipt by an
indemnified party of notice of any Claim or the commencement of any action or
proceeding involving a Claim under this Section 5, such indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying party
pursuant to Section 5, (i) notify the indemnifying party in writing of the Claim
or the commencement of such action or proceeding; PROVIDED, that the failure of
any indemnified party to provide such notice shall not relieve the indemnifying
party of its obligations under this Section 5, except to the extent the
indemnifying party is materially and actually prejudiced thereby and shall not
relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Section 5, and (ii)
- 19 -
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party; PROVIDED, HOWEVER, that any
indemnified party shall have the right to employ separate counsel and to
participate in the defense of such claim, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (A) the
indemnifying party has agreed in writing to pay such fees and expenses, (B) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such indemnified party within 10 days
after receiving notice from such indemnified party that the indemnified party
believes it has failed to do so, (C) in the reasonable judgment of any such
indemnified party, based upon advice of counsel, a conflict of interest may
exist between such indemnified party and the indemnifying party with respect to
such claims (in which case, if the indemnified party notifies the indemnifying
party in writing that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such claim on behalf of such indemnified party) or (D) such
indemnified party is a defendant in an action or proceeding which is also
brought against the indemnifying party and reasonably shall have concluded that
there may be one or more legal defenses available to such indemnified party
which are not available to the indemnifying party. No indemnifying party shall
be liable for any settlement of any such claim or action effected without its
written consent, which consent shall not be unreasonably withheld. In addition,
without the consent of the indemnified party (which consent shall not be
unreasonably withheld), no indemnifying party shall be permitted to consent to
entry of any judgment with respect to, or to effect the settlement or compromise
of any pending or threatened action or claim in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim), unless such settlement,
compromise or judgment (1) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim, (2) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party, and (3) does not provide for any
action on the part of any party other than the payment of money damages which is
to be paid in full by the indemnifying party.
5.4 CONTRIBUTION. If the indemnification provided for in Section 5.1 or
5.2 from the indemnifying party for any reason is unavailable to (other than by
reason of exceptions provided therein), or is insufficient to hold harmless, an
indemnified party hereunder in respect of any Claim, then the indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such Claim in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the indemnified party, on the other
hand, in connection with the actions which resulted in such Claim, as well as
any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. If, however, the foregoing allocation is not permitted by applicable
law, then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party in such proportion as is appropriate to reflect not
only such relative faults but also the relative benefits of the indemnifying
party and the indemnified party as well as any other relevant equitable
considerations.
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The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5.4 were determined by PRO RATA allocation
or by any other method of allocation which does not take into account the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by a party as a result of any Claim referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth in Section 5.3, any legal or other fees, costs or expenses
reasonably incurred by such party in connection with any investigation or
proceeding. Notwithstanding anything in this Section 5.4 to the contrary, no
indemnifying party (other than the Company) shall be required pursuant to this
Section 5.4 to contribute any amount in excess of the net proceeds received by
such indemnifying party from the sale of the Registrable Securities pursuant to
the Registration Statement giving rise to such Claims, less all amounts
previously paid by such indemnifying party with respect to such Claims. 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.
5.5 OTHER INDEMNIFICATION. Indemnification similar to that specified in
the preceding Sections 5.1 and 5.2 (with appropriate modifications) shall be
given by the Company and each selling Holder of Registrable Securities with
respect to any required registration or other qualification of securities under
any Federal or state law or regulation of any governmental authority, other than
the Securities Act. The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract.
5.6 INDEMNIFICATION PAYMENTS. The indemnification and contribution
required by this Section 5 shall be made by periodic payments of the amount
thereof during the course of any investigation or defense, as and when bills are
received or any expense, loss, damage or liability is incurred.
6. GENERAL.
6.1 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company agrees that
it shall not effect or permit to occur any combination or subdivision of shares
which would adversely affect the ability of the Holder of any Registrable
Securities to include such Registrable Securities in any registration
contemplated by this Agreement or the marketability of such Registrable
Securities in any such registration.
6.2 REGISTRATION RIGHTS TO OTHERS. If the Company shall at any time
hereafter provide to any holder of any securities of the Company rights with
respect to the registration of such securities under the Securities Act, (i)
such rights shall not be in conflict with or adversely affect any of the rights
provided in this Agreement to the Holders and (ii) if such rights are provided
on terms or conditions more favorable to such holder than the terms and
conditions provided in this Agreement, the Company shall provide (by way of
amendment to this Agreement or otherwise) such more favorable terms or
conditions to the Holders.
6.3 AVAILABILITY OF INFORMATION; RULE 144; RULE 144A; OTHER EXEMPTIONS. So
long as the Company shall not have filed a registration statement pursuant to
Section 12 of the Exchange Act or a registration statement pursuant to the
requirements of the Securities Act, the Company
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shall, at any time and from time to time, upon the request of any Holder of
Registrable Securities and upon the request of any Person designated by such
Holder as a prospective purchaser of any Registrable Securities, furnish in
writing to such Holder or such prospective purchaser, as the case may be, a
statement as of a date not earlier than 12 months prior to the date of such
request of the nature of the business of the Company and the products and
services it offers and copies of the Company's most recent balance sheet and
profit and loss and retained earnings statements, together with similar
financial statements for such part of the two preceding fiscal years as the
Company shall have been in operation, all such financial statements to be
audited to the extent audited statements are reasonable available, PROVIDED
that, in any event the most recent financial statements so furnished shall
include a balance sheet as of a date less than 16 months prior to the date of
such request, statements of profit and loss and retained earnings for the 12
months preceding the date of such balance sheet, and, if such balance sheet is
not as of a date less than 6 months prior to the date of such request,
additional statements of profit and loss and retained earnings for the period
from the date of such balance sheet to a date less than 6 months prior to the
date of such request. If the Company shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a registration
statement pursuant to the requirements of the Securities Act, the Company
covenants that it shall timely file any reports required to be filed by it under
the Securities Act or the Exchange Act (including, but not limited to, the
reports under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c) of Rule 144 under the Securities Act), and that it shall take
such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (i) Rule 144 and Rule 144A under
the Securities Act, as such rules may be amended from time to time, or (ii) any
other rule or regulation now existing or hereafter adopted by the SEC. Upon the
request of any Holder of Registrable Securities, the Company shall deliver to
such Holder a written statement as to whether it has complied with such
requirements.
6.4 AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified, supplemented or terminated, and waivers or consents to
departures from the provisions hereof may not be given, without the written
consent of the Company and each of the Principal Stockholder and the Minority
Stockholder; PROVIDED, HOWEVER, that no such amendment, modification,
supplement, waiver or consent to departure shall reduce the aforesaid percentage
of Registrable Securities without the written consent of all of the Holders of
Registrable Securities; and PROVIDED FURTHER, that nothing herein shall prohibit
any amendment, modification, supplement, termination, waiver or consent to
departure the effect of which is limited only to those Holders who have agreed
to such amendment, modification, supplement, termination, waiver or consent to
departure.
6.5 NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, telecopier, any
courier guaranteeing overnight delivery or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to the applicable
party at the address set forth below or such other address as may hereafter be
designated in writing by such party to the other parties in accordance with the
provisions of this Section:
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If to the Company, to:
c/o LJH, LTD.
000 Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
(i) With a copy to:
Xxxxxxxxx & Xxxxxxxx LLP
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
If to the Principal Stockholder, to:
000 Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
(ii) With a copy to:
Xxxxxxxxx & Xxxxxxxx LLP
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
(iii) If to the Minority Stockholder, to:
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx CFO
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
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With a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
(iv) If to any subsequent Holder, to the address
of such Person set forth in the records of the
Company.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; when receipt is
acknowledged, if telecopied; on the next business day, if timely delivered to a
courier guaranteeing overnight delivery; and five days after being deposited in
the mail, if sent first class or certified mail, return receipt requested,
postage prepaid.
6.6 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, successors
and permitted assigns (including any permitted transferee of Registrable
Securities). Any Holder may assign to any permitted (as determined under the
Stockholders' Agreement, among the parties hereto, dated the date hereof (the
"Stockholders' Agreement")) transferee of its Registrable Securities (other than
a transferee that acquires such Registrable Securities in a registered public
offering or pursuant to a sale under Rule 144 of the Securities Act (or any
successor rule)), its rights and obligations under this Agreement; PROVIDED,
HOWEVER, if any permitted transferee shall take and hold Registrable Securities,
such transferee shall promptly notify the Company and by taking and holding such
Registrable Securities such permitted transferee shall automatically be entitled
to receive the benefits of and be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement as if it
were a party hereto (and shall, for all purposes, be deemed a Holder under this
Agreement). If the Company shall so request, any heir, successor or permitted
assign (including any permitted transferee) shall agree in writing to acquire
and hold the Registrable Securities subject to all of the terms hereof. For
purposes of this Agreement, "successor" for any entity other than a natural
person shall mean a successor to such entity as a result of such entity's
merger, consolidation, sale of substantially all of its assets, or similar
transaction. Except as provided above or otherwise permitted by this Agreement,
neither this Agreement nor any right, remedy, obligation or liability arising
hereunder or by reason hereof shall be assignable by any Holder or by the
Company without the consent of the other parties hereto.
6.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original, but all of which counterparts, taken together, shall constitute
one and the same instrument.
6.8 DESCRIPTIVE HEADINGS, ETC. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
- 24 -
Unless the context of this Agreement otherwise requires: (1) words of any gender
shall be deemed to include each other gender; (2) words using the singular or
plural number shall also include the plural or singular number, respectively;
(3) the words "hereof", "herein" and "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement, and Section and paragraph references
are to the Sections and paragraphs of this Agreement unless otherwise specified;
(4) the word "including" and words of similar import when used in this Agreement
shall mean "including, without limitation," unless otherwise specified; (5) "or"
is not exclusive; and (6) provisions apply to successive events and
transactions.
6.9 SEVERABILITY. In the event that any one or more of the provisions,
paragraphs, words, clauses, phrases or sentences contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the other remaining provisions,
paragraphs, words, clauses, phrases or sentences hereof shall not be in any way
impaired, it being intended that all rights, powers and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
6.10 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
6.11 REMEDIES; SPECIFIC PERFORMANCE. The parties hereto acknowledge that
money damages would not be an adequate remedy at law if any party fails to
perform in any material respect any of its obligations hereunder, and
accordingly agree that each party, in addition to any other remedy to which it
may be entitled at law or in equity, shall be entitled to seek to compel
specific performance of the obligations of any other party under this Agreement,
without the posting of any bond, in accordance with the terms and conditions of
this Agreement in any court of the United States or any State thereof having
jurisdiction, and if any action should be brought in equity to enforce any of
the provisions of this Agreement, none of the parties hereto shall raise the
defense that there is an adequate remedy at law. Except as otherwise provided by
law, a delay or omission by a party hereto in exercising any right or remedy
accruing upon any such breach shall not impair the right or remedy or constitute
a waiver of or acquiescence in any such breach. No remedy shall be exclusive of
any other remedy. All available remedies shall be cumulative.
6.12 ENTIRE AGREEMENT. This Agreement, the Stockholders' Agreement and the
Transaction Agreement (collectively, the "Other Agreements") are intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, representations, warranties, covenants or undertakings relating to
such subject matter, other than those set forth or referred to herein or in the
Other Agreements. This Agreement and the Other Agreements supersede all prior
agreements and understandings between the Company and the other parties to this
Agreement with respect to such subject matter.
6.13 NOMINEES FOR BENEFICIAL OWNERS. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its
- 25 -
election in writing delivered to the Company, be treated as the holder of such
Registrable Securities for purposes of any request or other action by any holder
or holders of Registrable Securities pursuant to this Agreement or any
determination of any number or percentage of shares of Registrable Securities
held by any holder or holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so elects, the
Company may require assurances reasonably satisfactory to it of such owner's
beneficial ownership of such Registrable Securities.
6.14 CONSENT TO JURISDICTION. Each party to this Agreement hereby
irrevocably and unconditionally agrees that any legal action, suit or proceeding
arising out of or relating to this Agreement or any agreements or transactions
contemplated hereby may be brought in any federal court of the Southern District
of New York or any state court located in New York County, State of New York,
and hereby irrevocably and unconditionally expressly submits to the personal
jurisdiction and venue of such courts for the purposes thereof and hereby
irrevocably and unconditionally waives any claim (by way of motion, as a defense
or otherwise) of improper venue, that it is not subject personally to the
jurisdiction of such court, that such courts are an inconvenient forum or that
this Agreement or the subject matter may not be enforced in or by such court.
Each party hereby irrevocably and unconditionally consents to the service of
process of any of the aforementioned courts in any such action, suit or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the address set forth or provided for in Section 6.5 of this
Agreement, such service to become effective 10 days after such mailing. Nothing
herein contained shall be deemed to affect the right of any party to serve
process in any manner permitted by law or commence legal proceedings or
otherwise proceed against any other party in any other jurisdiction to enforce
judgments obtained in any action, suit or proceeding brought pursuant to this
Section.
6.15 FURTHER ASSURANCES. Each party hereto shall do and perform or cause
to be done and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments and documents as
any other party hereto reasonably may request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
6.16 NO INCONSISTENT AGREEMENTS. The Company will not hereafter enter into
any agreement which is inconsistent with the rights granted to the Holders in
this Agreement.
6.17 CONSTRUCTION. The Company and the Initial Holders acknowledge that
each of them has had the benefit of legal counsel of its own choice and has been
afforded an opportunity to review this Agreement with its legal counsel and that
this Agreement shall be construed as if jointly drafted by the Company and the
Holders.
6.18 COSTS AND ATTORNEY'S FEES. In the event that any action, suit or
other proceeding is instituted concerning or arising out of this Agreement, the
prevailing party shall recover from the non-prevailing party all of such
prevailing party's costs and reasonable attorneys' fees incurred in each and
every such action, suit or other proceeding, including any and all appeals or
petitions therefrom.
- 26 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
STOCKHOLDERS
LJH, LTD.
By:
-----------------------------------------
Name: Xxxx Xxxxxx
Title:
OWL CREEK I L.P.
By: Owl creek Advisors, LLC
its General Partner
By:
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Member
OWL CREEK II L.P.
By: Owl creek Advisors, LLC
its General Partner
By:
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Member
OWL CREEK OVERSEAS FUND LTD.
By:
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
OWL CREEK OVERSEAS FUND II, LTD.
By:
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
THE COMPANY
TAS HOLDING, INC.
By:
-----------------------------------------
Name:
Title:
- 27 -
- 28 -
TABLE OF CONTENTS
PAGE
1. DEFINITIONS.......................................................1
2. REGISTRATION UNDER THE SECURITIES ACT.............................5
2.1 DEMAND REGISTRATION...........................................5
2.2 INCIDENTAL REGISTRATION.......................................8
2.3 S-3 REGISTRATION; SHELF REGISTRATION.........................10
2.4 EXPENSES.....................................................11
2.5 UNDERWRITTEN OFFERINGS.......................................11
2.6 POSTPONEMENTS................................................12
3. HOLDBACK ARRANGEMENTS............................................13
3.1 RESTRICTIONS ON SALE BY HOLDERS OF REGISTRABLE SECURITIES....13
3.2 RESTRICTIONS ON SALE BY THE COMPANY AND OTHERS...............13
4. REGISTRATION PROCEDURES..........................................13
4.1 OBLIGATIONS OF THE COMPANY...................................13
4.2 SELLER INFORMATION...........................................17
4.3 NOTICE TO DISCONTINUE........................................18
5. INDEMNIFICATION; CONTRIBUTION....................................18
5.1 INDEMNIFICATION BY THE COMPANY...............................18
5.2 INDEMNIFICATION BY HOLDERS...................................19
5.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS.......................19
5.4 CONTRIBUTION.................................................20
5.5 OTHER INDEMNIFICATION........................................21
5.6 INDEMNIFICATION PAYMENTS.....................................21
6. GENERAL..........................................................21
6.1 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES.................21
6.2 REGISTRATION RIGHTS TO OTHERS................................21
6.3 AVAILABILITY OF INFORMATION; RULE 144; RULE 144A;
OTHER EXEMPTIONS.............................................21
6.4 AMENDMENTS AND WAIVERS.......................................22
6.5 NOTICES......................................................22
6.6 SUCCESSORS AND ASSIGNS.......................................24
6.7 COUNTERPARTS.................................................24
6.8 DESCRIPTIVE HEADINGS, ETC....................................24
6.9 SEVERABILITY.................................................25
6.10 GOVERNING LAW................................................25
6.11 REMEDIES; SPECIFIC PERFORMANCE...............................25
6.12 ENTIRE AGREEMENT.............................................25
6.13 NOMINEES FOR BENEFICIAL OWNERS...............................25
6.14 CONSENT TO JURISDICTION......................................26
- i -
6.15 FURTHER ASSURANCES...........................................26
6.16 NO INCONSISTENT AGREEMENTS...................................26
6.17 CONSTRUCTION.................................................26
6.18 COSTS AND ATTORNEY'S FEES....................................26
- ii -
