Exhibit 10.8
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REGISTRATION RIGHTS AGREEMENT
AMONG
RED XXXXX INTERNATIONAL, INC.
AND
CERTAIN HOLDERS OF ITS COMMON SHARES
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Dated as of May 11, 2000
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TABLE OF CONTENTS
Page
1. Definitions ..................................................... 1
2. Registration under Securities Act ............................... 3
3. Rule 144 ........................................................ 15
4. Amendments and Waivers .......................................... 15
5. Notices ......................................................... 15
6. Binding Agreement ............................................... 16
7. Nominees for Beneficial Owners .................................. 16
8. Descriptive Headings ............................................ 16
9. Specific Performance ............................................ 16
10. Governing Laws .................................................. 16
11. Third Party Beneficiaries ....................................... 17
12. Counterparts .................................................... 17
13. Severability .................................................... 17
14. Entire Agreement ................................................ 17
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made as of May 11, 2000, among RED
XXXXX INTERNATIONAL, INC., a Nevada corporation, the Persons, including SKYLARK
COMPANY, LTD., a Japan corporation ("Skylark"), listed in Schedule A
(collectively the "Skylark Holders"), RR INVESTORS, LLC, a Virginia limited
liability company ("Investors I"), RR INVESTORS II, LLC, a Virginia limited
liability company ("Investors II, and together with Investors I, "Investors"),
each of the Persons listed in Schedule B hereto (the "Other Shareholders") and
each of the Persons listed in Schedule C hereto (the "Xxxxxx Group"). The
parties hereof, other than the Company, are collectively referred to as the
"Shareholders" and individually as a "Shareholder."
The Shareholders are holders of shares of common stock, $0.001 par value
(the "Common Shares") of the Company.
In consideration of the parties entering into the agreements and carrying
out the transactions herein described, and for other good and valuable
consideration, the parties agree as follows:
1. Definitions. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
"Affiliate" of any Person means any other Person directly or indirectly
controlling (including all directors and officers of such Person) or controlled
by or under direct or indirect common control with such Person. For the purposes
of this definition, "control" when used with respect to any Person, means (i)
with respect to any Person having voting shares or their equivalent and elected
directors, managers or Persons performing similar functions, the possession,
directly or indirectly, of the power to vote 10% or more of the shares or their
equivalent having ordinary voting power of such Person or (ii) the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
shares or their equivalent, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Commission" means the Securities and Exchange Commission or any other
United States agency at the time administering the Securities Act.
"Common Shares" has the meaning set forth in the Recitals.
"Exchange Act" means the Securities Exchange Act of 1934, or any
similar United States statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Executive" means an individual who is an employee of the Company or
any of its subsidiaries.
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"Executive Stock Options" means the options to purchase Common Shares
awarded to Option Executives pursuant to the Stock Option Plans.
"Initial Public Offering" means the first Public Offering under which
Common Shares are sold to the public.
"Long-Form Registration" means registration under the Securities Act
(hereinafter defined) on Form S-1 or similar long form adopted by the Commission
for registration of securities under the Securities Act.
"Option Executives" shall have the meaning provided in the Stock Option
Plans.
"Person" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
"Public Offering" means any primary or secondary public offering of
Common Shares pursuant to an effective registration statement under the
Securities Act other than a registration statement on a form registering the
types of transactions generally eligible for registration on Form S-4 or S-8 or
any successor or similar form.
"Public Sale" means any Public Offering or any sale of Common Shares to
the public pursuant to Rule 144 effected through a broker or dealer.
"Quad-C Holders" means Investors and any Person who is the transferee
of Investors of Registrable Securities in compliance with the Shareholders
Agreement other than in a Public Sale.
"Registrable Securities" means any outstanding Common Shares issued to
any Shareholder, including, without limitation, (i) any Common Shares issued
upon the exercise by the Option Executives of Executive Stock Options and (ii)
any securities issued or issuable with respect to any such Common Shares by way
of stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise. As
to any particular Registrable Securities, once issued such securities shall
cease to be Registrable Securities when (i) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been distributed in accordance
with such registration statement, (ii) they have been distributed to the public
pursuant to Rule 144 (or any successor provision) under the Securities Act,
(iii) they shall have been otherwise transferred and subsequent disposition of
them shall not require registration or qualification of them under the
Securities Act or any similar state law then in force or (iv) they shall have
ceased to be outstanding.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with Section 2, including, without limitation, (i)
all registration, filing and NASD fees, (ii) all fees and expenses of complying
with securities or blue sky laws, (iii) all word processing, duplicating and
printing expenses, (iv) messenger and delivery expenses, (v) the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or "cold comfort"
letters
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required by or incident to such performance and compliance; (vi) the reasonable
fees and disbursements for one counsel chosen by the holders of a majority of
the Registrable Securities initially requesting registration; (vii) premiums and
other costs of policies of insurance against liabilities arising out of the
public offering of the Registrable Securities being registered (if the Company
elects to obtain any such insurance), and (viii) any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but excluding
underwriting discounts and commissions and transfer taxes, if any.
"Requesting Holder" means, in respect of any registration pursuant to
Section 2 hereof, any holder of Registrable Securities who gives notice to the
Company of its request to include Registrable Securities in such registration.
"Rule 144" means Rule 144 promulgated by the Commission under the
Securities Act as such rule may be amended from time to time, or any similar
rule then in force.
"Securities Act" means the Securities Act of 1933, or any similar
United States statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Shareholders Agreement" means the Shareholders Agreement entered into
among the Company and its holders of Common Shares dated as of the date hereof,
as amended from time to time.
"Skylark Holders" means the Persons listed in Schedule A hereto.
"Xxxxxx Group" means the Persons listed in Schedule C hereto.
"Stock Option Plans" means the Company's Employee Stock Option Plan,
1990, Employee Stock Option Plan, 1996 and the 2000 Management Performance
Common Stock Option Plan pursuant to which options to purchase common equity
membership interests in the Company may be awarded to certain employees of the
Company and its Subsidiaries and any other stock option plans approved by the
Board of Directors of the Company after the date of this Agreement.
2. Registration under Securities Act.
(a) Registration on Request.
(i) Request. If (A) at any time after the earlier of (x) the
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Initial Public Offering or (y) April 30, 2005, the Quad-C Holders or the
Skylark Holders, as the case may be, hold in excess of ten (10%) percent of
the outstanding Common Shares and the Quad-C Holders or the Skylark
Holders, as the case may be, request in writing that the Company effect the
registration under the Securities Act of a specified number of the
Registrable Securities held by the Quad-C Holders or the Skylark Holders,
as the case may be, and specifying the intended method of disposition
thereof, or (B) at any time after April 30, 2005, the Company has not
effected the Initial Public Offering, Xxxxxx is not the Chief Executive
Officer of the Company and the Xxxxxx Group and their Related Transferees
continue to hold in excess of ten (10%) percent of the outstanding Common
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Shares and Xxxxxx requests in writing that the Company effect the
registration of the Initial Public Offering under the Securities Act of a
specified number of the Registrable Securities held by the Xxxxxx Group,
and specifying the intended method of disposition thereof, the Company will
promptly give written notice of such requested registration to all
registered holders of Registrable Securities, and thereupon the Company, in
accordance with the provisions of Section 2(c) hereof, will use its best
efforts to effect the registration under the Securities Act of:
(A) the Registrable Securities held by the Quad-C Holders or the
Skylark Holders, as the case may be, which the Company has been so
requested to register for disposition in accordance with the intended
method or methods of disposition stated in such request, and
(B) all other Registrable Securities which the Company has been
requested to register by the Requesting Holders by written request
given to the Company within 20 days after the giving of such written
notice by the Company,
all to the extent requisite to permit the disposition (in accordance
with the intended methods thereof as aforesaid) of Registrable
Securities so to be registered; provided that the Company shall not be
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required (x) to effect a Long-Form Registration under this Section
2(a) unless the anticipated gross proceeds of the offering of all
Registrable Securities to be included therein is at least $10,000,000,
(y) to effect more than two Long-Form Registrations at the request of
each of the Quad-C Holders and the Skylark Holders; provided that no
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Long-Form Registration will count as a Long-Form Registration unless
the Quad-C Holders or the Skylark Holders, as the case may be, are
able to register and sell at least 80% of the Registrable Securities
requested to be included therein by either the Quad-C Holders or the
Skylark Holders, as the case may be, or (z) to effect a Long-Form
Registration under this Section 2(a) prior to the date that is six
months after the effective date of the Company's most recent
registration statement; provided that in the event the registration
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requested by the Quad-C Holders or the Skylark Holders pursuant to
this Section 2(a)(i) is the Initial Public Offering, or in the event
of the registration requested by Xxxxxx pursuant to this Section
2(a)(i), the provisions of Section 4 of the Shareholders Agreement
shall be complied with and, to the extent such provisions are in
conflict with the provisions of this Agreement, such provisions shall
control and the Quad-C Holders, the Skylark Holders or Xxxxxx, as the
case may be, shall have the rights and obligations of the "Compelling
Holder" thereunder.
(ii) Effective Registration Statement. A registration requested
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pursuant to this Section 2(a) shall not be deemed to be effected (A)
if a registration statement with respect thereto shall not have become
effective, (B) if, after it has become effective, such registration is
interfered with for any reason by any stop order, injunction or other
order or requirement of the Commission or any other governmental
agency or any court, and the result of such interference is to prevent
the holders of Registrable Securities to be sold thereunder from
disposing thereof in accordance with the intended methods of
disposition, or (C) if the conditions to closing specified in the
purchase agreement or underwriting agreement entered into in
connection with any underwritten registration shall not be satisfied
or waived with the consent of the holders of Registrable
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Securities that were to have been sold thereunder, other than as a result
of any breach by any holder of its obligations thereunder or hereunder.
(iii) Registration Statement Form. Registrations under this
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Section 2(a) shall be on such appropriate registration form of the
Commission as shall be selected by the Quad-C Holders and as shall permit
the disposition of the Registrable Securities so to be registered in
accordance with the intended method or methods of disposition specified in
the request of the holders of Registrable Securities being registered for
such registration. The Company agrees to include in any such registration
statement all information which the holders of Registrable Securities being
registered shall reasonably request.
(iv) Expenses. The Company will pay all Registration Expenses in
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connection with any registration requested pursuant to this Section 2(a).
To the extent expenses of the registration are not required to be paid by
the Company, each holder of securities included in the registration will
pay those expenses allocable to the registration of such holder's
securities, and any expenses not so allocable will be borne by all sellers
of securities included in the registration in proportion to the aggregate
selling price of the securities to be so registered.
(v) Selection of Underwriters. If a requested registration
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pursuant to this Section 2(a) involves an underwritten offering, the
managing underwriter or underwriters shall be selected by the Quad-C
Holders (which managing underwrites shall be nationally recognized) subject
to the approval of the Company's Board of Directors which shall not be
unreasonably withheld or delayed.
(vi) Priority in Requested Registrations. If a requested
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registration pursuant to this Section 2(a) involves an underwritten
offering, and the managing underwriter shall advise the Company in writing
(with a copy to each Requesting Holder) that, in its opinion, the number of
securities requested to be included in such registration by the Quad-C
Holders, the Skylark Holders and the Requesting Holders exceeds the number
which can be sold in an orderly manner in such offering within a price
range acceptable to the Quad-C Holders or the Skylark Holders, as the case
may be, the Company will include in such registration to the extent of the
number which the Company is so advised can be sold in such offering (A)
first, Registrable Securities requested to be included in such registration
by the Quad-C Holders or the Skylark Holders, as the case may be and (B)
second, Registrable Securities requested to be included in such
registration by the Requesting Holders; pro rata among such holders on the
basis of the number of Registrable Securities requested to be so
registered; provided that Executives shall not have any right to include
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Registrable Securities in the registration constituting the Initial Public
Offering unless recommended by the Board of Directors of the Company and
approved by the underwriters. Notwithstanding anything herein to the
contrary, the Company will not include in any registration pursuant to this
Section 2(a) any securities which are not Registrable Securities without
the consent of Investors.
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(vii) Other Registration Rights. The Company will not grant any
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Person the right to request the Company to register any equity or similar
securities of the Company, or any securities convertible or exchangeable
into or exercisable for such securities to the extent such rights conflict
with, or are adverse to, the rights of the holders of Registrable
Securities without the consent of Investors and the holders (including
Investors) of at least two-thirds of the Registrable Securities.
(b) Incidental Registration.
(i) Right to Include Registrable Securities. If the Company at
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any time proposes to register any of its securities under the Securities
Act (other than by a registration on Form S-4 or S-8 or any successor or
similar forms filed in connection with an exchange offer, or any offering
of securities solely to the Company's existing security holders, and other
than pursuant to Section 2(a)), whether or not for sale for its own
account, the Company will at each such time give prompt confidential
written notice to all holders of Registrable Securities of its intention to
do so and of such holders' rights under this Section 2(b). Upon the written
request of any holder of Registrable Securities made within 20 days after
the receipt of any such notice (which request shall specify the Registrable
Securities intended to be disposed of by such holder and the intended
method of disposition thereof), the Company will, subject to the provisions
of paragraph (iii) of this Section 2(b), use its best efforts to effect the
registration under the Securities Act of all Registrable Securities which
the Company has been so requested to register by the holders thereof, 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.
(ii) Expenses. The Company will pay all Registration Expenses in
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connection with each registration of Registrable Securities requested
pursuant to this Section 2(b) including, without limitation, any such
registration not effected by the Company. To the extent expenses of the
registration are not required to be paid by the Company, each holder of
securities included in the registration will pay those expenses allocable
to the registration of such holder's securities, and any expenses not so
allocable will be borne by all sellers of securities included in the
registration in proportion to the aggregate selling price of the securities
to be so registered.
(iii) Priority in Incidental Registrations. If a registration
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pursuant to this Section 2(b) involves an underwritten offering, and the
managing underwriter shall advise the Company in writing, that, in its
opinion, the number of securities requested and otherwise proposed to be
included in such registration exceeds the number which can be sold in an
orderly manner in such offering within a price range acceptable to the
Company, or that the kind of securities requested or otherwise proposed to
be included in such registration statement would materially and adversely
affect the success of such offering, the Company will include in such
registration, to the extent of the number which the Company is so advised
can be sold in such offering, (A) if the registration is a primary
registration on behalf of the Company, (1) first, the securities proposed
to be registered by the Company, (2) second, Registrable Securities
requested to be included in such registration pro rata in accordance with
the number of securities requested to be included by the Requesting
Holders; and (3) third, securities of other Persons, if any,
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requested to be included in such registration pro rata in accordance with
the numbers of other securities proposed to be registered by the other
Persons or otherwise allocated among such other Persons in such proportion
as such holders and the Company shall agree, and (B) if the registration is
a secondary registration on behalf of other Persons, the Registrable
Securities and securities of other Persons included in such registration
pro rata in accordance with the numbers of Registrable Securities requested
to be included by the Requesting Holders and the numbers of other
securities proposed to be registered by the other Persons; provided in each
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such case that Executives shall not have any right to include Registrable
Securities in the registration constituting the Initial Public Offering
unless recommended by the Board of Directors of the Company and approved by
the underwriters. In the event a contemplated distribution does not involve
an underwritten public offering, the determinations contemplated by this
Section 2(b) shall be made by the Company's Board of Directors.
(c) Registration Procedures. Whenever the holders of Registrable
Securities have requested that Registrable Securities be registered pursuant to
this Agreement, the Company will use its best efforts to effect the registration
and sale of such Registrable Securities in accordance with the intended method
of disposition, and pursuant thereto the Company will as expeditiously as
possible:
(i) prepare and file with the Commission the requisite
registration statement to effect such registration and thereafter use its
best efforts to cause such registration statement to become effective;
provided, that before filing such registration statement or any amendments
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thereto, the Company will furnish to the Requesting Holders copies of all
such documents proposed to be filed and will promptly notify such
Requesting Holders of the receipt by the Company of any written comments by
the Commission with respect to such registration statement;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement continuously effective for a period of either (A) not more than
180 days or, if such registration statement relates to an underwritten
offering, such longer period as in the opinion of counsel for the
underwriters a prospectus is required by law to be delivered in connection
with sales of Registrable Securities by an underwriter or dealer or (B)
such shorter period as will terminate when all of the securities covered by
such registration statement have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth
in such registration statement (but in any event not before the expiration
of any longer period required under the Securities Act), and to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement until such time as all of
such securities have been disposed of in accordance with the intended
methods of disposition by the seller or sellers thereof set forth in such
registration statement;
(iii) furnish to each Requesting Holder such number of conformed
copies of such registration statement and of each such amendments and
supplements thereto (in each case including all exhibits, but only one copy
thereof to each such
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Requesting Holder), such number of copies of the prospectus contained in
such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act,
and such other documents in order to facilitate the disposition of the
Registrable Securities owned by such Requesting Holder, as such Requesting
Holder may reasonably request;
(iv) use its best efforts to register or qualify such Registrable
Securities and other securities covered by such registration statement
under such other securities or blue sky laws of such jurisdictions as each
seller thereof shall reasonably request, to keep such registration or
qualification in effect for so long as such registration statement remains
in effect, and to take any other action which may be reasonably necessary
or advisable to enable such seller to consummate the disposition in such
jurisdictions of the securities owned by such seller; provided, that the
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Company shall not for any such purpose be required to (A) qualify generally
to do business as a foreign corporation in any jurisdiction where it would
not otherwise be required to qualify but for the requirements of this
clause (iv), (B) consent to general service of process in any such
jurisdiction or (C) subject itself to taxation in such jurisdiction;
(v) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to
enable the sellers thereof to consummate the disposition of such
Registrable Securities, and cooperate and assist with any filings to be
made with the NASD;
(vi) promptly notify each seller of Registrable Securities, at
any time when a prospectus relating thereto is required to be delivered
under the Securities Act, upon discovery that, or upon the discovery of the
happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, and at the request
of any such seller promptly prepare and furnish to such seller a reasonable
number of copies of a supplement to or an amendment of such prospectus as
may be necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made;
(vii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
the period of at least twelve months beginning with the first day of the
Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder;
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(viii) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
registration statement;
(ix) cause all such Registrable Securities covered by such
registration statement to be listed on each national securities exchange on
which similar securities of the Company are then listed and, if such
Registrable Securities are not already so listed, to be listed on the
Nasqaq National Market System ("National Market"), use its best efforts to
secure designation of all such Registrable Securities covered by such
Registration Statement as a "Nasdaq National Market System Security" within
the meaning of Rule 11Aa2-1 under the Exchange Act or failing that, to
secure Nasdaq Market authorization for such Registrable Securities and.
Without limiting the generality of the foregoing, to arrange for at least
two market makers to register as such with respect to such Registrable
Securities with the NASD;
(x) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions
as the holders of a majority of the Registrable Securities being sold or
the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities (including,
without limitation, effecting a split or a combination of stock or units);
(xi) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or other agent
retained by any such seller or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees and independent
accountants to supply all information and participate in due diligence
sessions reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(xii) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending
or preventing the use of any related prospectus or suspending the
qualification of any common stock included in such registration statement
for sale in any jurisdiction, the Company will use its best efforts
promptly to obtain the withdrawal of such order;
(xiii) obtain one or more "cold comfort" letters, dated the
effective date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the closing
under the underwriting agreement), signed by the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by "cold comfort" letters as the holders of a majority
of the Registrable Securities being sold reasonably request;
(xiv) provide a legal opinion of the Company's outside counsel,
dated the effective date of such registration statement (and, if such
registration includes an underwritten public offering, dated the date of
the closing under the underwriting agreement), with respect to the
registration statement, each amendment and supplement
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thereto, the prospectus included therein (including the preliminary
prospectus) and such other documents relating thereto in customary form and
covering such matters of the type customarily covered by legal opinions of
such nature; and
(xv) use its best efforts to cause its officers to support the
marketing of the Registrable Securities being sold (including, without
limitation, their participation in "road shows" as may be reasonably
requested by the underwriters administering the offering and sale of such
Registrable Securities) to the extent reasonably possible taking into
account such officers' responsibilities to manage the Company's business.
The Company may require each seller of Registrable Securities as to which
any registration is being effected to furnish the Company such information
regarding such seller and the distribution of such securities as the Company may
from time to time reasonably request in writing. If any such registration or
comparable statement refers to any holder by name or otherwise as the holder of
any securities of the Company and if in such holder's sole and exclusive
judgment, such holder is or might be deemed to be an underwriter or a
controlling person of the Company, such holder shall have the right to require
(i) the insertion therein of language, in form and substance satisfactory to
such holder and presented to the Company in writing, 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, or (ii)
in the event that such reference to such holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such holder; provided that with respect to this
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clause (ii) such holder shall furnish to the Company an opinion of counsel to
such effect, which opinion and counsel shall be reasonably satisfactory to the
Company.
Each holder of Registrable Securities agrees that upon receipt of any
notice from the Company of the happening of any event of the kind described in
clause (vi) of this Section 2(c), such holder will forthwith discontinue such
holder's disposition of Registrable Securities pursuant to the registration
statement relating to such Registrable Securities until such holder's receipt of
the copies of the supplemented or amended prospectus contemplated by clause (vi)
of this Section 2(c) and, if so directed by the Company, such holder will use
its best efforts to deliver to the Company all copies, other than permanent file
copies then in such holder's possession, of the prospectus relating to such
Registrable Securities current at the time of receipt of such notice.
(d) Underwritten Offerings.
(i) Requested Underwritten Offerings. If requested by the
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underwriters for any underwritten offering of Registrable Securities
pursuant to a registration requested under Section 2(a), the Company will
enter into an underwriting agreement with such underwriters for such
offering. Such agreement shall be reasonably satisfactory in substance and
form to the holders of a majority of the Registrable Securities included in
such registration and the underwriters and shall contain such
representations and warranties by the Company and by the selling
shareholders and such
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other terms as are generally prevailing in agreements of this type,
including, without limitation, indemnities to the effect and to the extent
provided in Section 2(f).
(ii) Incidental Underwritten Offerings. If the Company at any time
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proposes to register any of its securities under the Securities Act as
contemplated by Section 2(b) and such securities are to be distributed by
or through one or more underwriters, (A) the managing underwriter or
underwriters shall be selected by the Company, and (B) the Company will, if
requested by any holder of Registrable Securities as provided in Section
2(b), and subject to the provisions of Section 2(b)(ii), use its best
efforts to arrange for such underwriters to include all the Registrable
Securities to be offered and sold by such holder among the securities to be
distributed by such underwriters.
(e) Holdback Agreements.
(i) Each holder of Registrable Securities agrees for the benefit
of the Company not to effect any sale or distribution of any equity
securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, including a sale pursuant
to Rule 144 under the Securities Act (or any similar provision then in
force), during the seven days before and the 180 days after any
underwritten registration pursuant to Section 2(a) or 2(b) has become
effective, except as part of such underwritten registration.
(ii) The Company agrees (A) without the consent of the managing
underwriter not to effect any public sale or distribution of its equity
securities or securities convertible into or exchangeable or exercisable
for any of such securities during the seven days before and the 180 days
after any underwritten registration pursuant to Section 2(a) or 2(b) has
become effective, except as part of such underwritten registration and
except pursuant to registrations on Form S-4 or S-8, or any successor or
similar forms thereto or pursuant to an unregistered offering to employees
of the Company or its Subsidiaries pursuant to an employee benefit plan as
defined in Rule 405 of Regulation C under the Securities Act, and (B) to
use its reasonable best efforts to cause each holder of at least two
percent of its Common Shares (on a fully-diluted basis) or any securities
convertible into or exchangeable or exercisable for any of its Common
Shares, whether outstanding on the date of this Agreement or issued at any
time after the date of this Agreement (other than any such securities
acquired in a public offering including any distribution to the public
pursuant to Rule 144), to agree not to effect any such public sale or
distribution of such securities during such period, except as part of any
such registration if permitted, unless the underwriters managing such
underwritten registration otherwise agree.
(f) Indemnification.
(i) Indemnification by the Company. In the event of any
------------------------------
registration of any securities of the Company under the Securities Act
pursuant to this Section 2, the Company will, and hereby does, indemnify
and hold harmless, the seller of any Registrable Securities covered by such
registration statement, its directors, officers,
11
agents and employees, each other Person who participates as an underwriter
in the offering or sale of such securities and each other Person, if any,
who controls such seller or any such underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which such seller or any such director, officer, agent,
employee, underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon (A) any untrue statement or
alleged untrue statement of any material fact contained (x) in any
registration statement under which such securities were registered under
the Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein or used in connection with the offering of
securities covered thereby, or any amendment or supplement thereto or any
document included by reference therein, or (y) in any application or other
document or communication (in this Section 2(f) collectively called an
"application") executed by or on behalf of the Company or based upon
written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify any securities covered by such
registration statement under the "blue sky" or securities laws thereof, or
(B) 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, and the Company will reimburse such seller and each such
director, officer, agent, employee, underwriter and controlling person for
any legal or any other expenses incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided, that the Company shall not be liable in any such case
---------
to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement, or omission or alleged
omission, made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement,
or in any application, in reliance upon and in conformity with written
information prepared and furnished to the Company by such seller
specifically for use in the preparation thereof which information contained
any untrue statement of any material fact or omitted to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and provided further, that the Company
-------- -------
shall not be liable to any Person who participates as an underwriter in any
such registration or any other Person who controls such underwriter within
the meaning of the Securities Act, in any such case to the extent that any
such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of such Person's failure to send or give a
copy of the final prospectus, as the same may be then supplemented or
amended (provided it has been made available to such Person in accordance
with the terms hereof), to the Person asserting an untrue statement or
alleged untrue statement or omission or alleged omission at or prior to the
written confirmation of the sale of the securities to such Person if such
statement or omission was corrected in such final prospectus. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such seller or any such director,
officer, agent, employee, underwriter or controlling Person and shall
survive the transfer of such securities by such seller. The Company shall
not be obligated to pay the fees and expenses of more than one counsel or
firm of counsel for all parties indemnified in respect of a claim for each
jurisdiction in which such counsel is required
12
unless in the reasonable judgment of such counsel a conflict of interest
may exist between such indemnified party and any other indemnified party in
respect of such claim.
(ii) Indemnification by the Sellers. The Company may require, as
------------------------------
a condition to including any Registrable Securities in any registration
statement filed pursuant to this Section 2, that the Company shall have
received an undertaking satisfactory to it from the prospective seller of
such securities, to indemnify and hold harmless (in the same manner and to
the same extent as set forth in clause (i) of this Section 2(f)) the
Company, each director of the Company, each officer of the Company and each
other Person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any application, if
such statement or alleged statement or omission or alleged omission was
made in reliance upon and in conformity with written information prepared
and furnished to the Company by such seller specifically for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement, or such
application, which information contained any untrue statement of any
material fact or omitted to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading.
Such indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of such
securities by such seller. The indemnity provided by each seller of
securities under this Section 2(f)(ii) shall be provided severally, and not
jointly or jointly and severally with any other seller or prospective
seller of securities, and shall be limited in amount to the net amount of
proceeds received by such seller from the sale of Registrable Securities
pursuant to such registration statement.
(iii) Notices of Claims, etc. Promptly after receipt by an
----------------------
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section
2(f), such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the latter of
the commencement of such action; provided, that the failure of any
--------
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of
this Section 2(f), except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action
is brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying
party shall be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similarly notified to
the extent that it may wish, with counsel reasonably satisfactory to such
indemnified party. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release
from all liability in respect to such claim or litigation.
13
(iv) Other Indemnification. Indemnification similar to that
---------------------
specified in the preceding subdivisions of this Section 2(f) (with
appropriate and reasonable modifications) shall be given by the Company and
each seller of Registrable Securities with respect to any required
registration or other qualification of securities under any federal, state
or provincial law or regulation of any governmental authority, other than
the Securities Act.
(v) Indemnification Payments. The indemnification required by this
------------------------
Section 2(f) shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred, subject to
refund if the party receiving such payments is subsequently found not to
have been entitled thereto hereunder.
(vi) Contribution. In order to provide for just and equitable
------------
contribution in circumstances under which the indemnity contemplated by
this Section 2(f) is for any reason not available, the parties required to
indemnify by the terms hereof shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by
such indemnity agreement incurred by the Company, any seller of Registrable
Securities and one or more of the underwriters, except to the extent that
contribution is not permitted under Section 11(f) of the Securities Act. In
determining the amounts which the respective parties shall contribute,
there shall be considered the relative benefits received by each party from
the offering of the Registrable Securities (taking into account the portion
of the proceeds of the offering realized by each), the parties' relative
knowledge and access to information concerning the matter with respect to
which the claim was asserted, the opportunity to correct and prevent any
statement or omission and any other equitable considerations appropriate
under the circumstances. The Company and each Person selling securities
agree with each other that no seller of Registrable Securities shall be
required to contribute any amount in excess of the amount such seller would
have been required to pay to an indemnified party if the indemnities under
clauses (i) and (ii) of this Section 2(f) were available. The Company and
each such seller agree with each other and the underwriters of the
Registrable Securities, if requested by such underwriters, that it would
not be equitable if the amount of such contribution were determined by pro
rata or per capita allocation (even if the underwriters were treated as one
entity for such purpose) or for the underwriters' portion of such
contribution to exceed the percentage that the underwriting discount bears
to the initial public offering price of the Registrable Securities. For
purposes of this clause (vi), each Person, if any, who controls an
underwriter within the meaning of Section 15 of the Securities Act shall
have the same rights to contribution as such underwriter, and each director
and each officer of the Company who signed the registration statement, and
each Person, if any, who controls the Company or a seller of Registrable
Securities within the meaning of Section 15 of the Securities Act shall
have the same rights to contribution as the Company or a seller of
Registrable Securities, as the case may be.
(g) Participation in Underwritten Registrations. No Person may
participate in any underwritten registration hereunder unless (i) such Person
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements reasonably approved
14
by the Person or Persons entitled hereunder to approve such arrangements
(including, without limitation, pursuant to the terms of any over-allotment
option requested by the managing underwriters; provided that no holder of
--------
Registrable securities will be required to sell more than the number of
Registrable Securities that such holder has requested the Company to include in
such registration) and (ii) completes and executes all customary questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under such underwriting arrangements; provided that no holder of
--------
Registrable Securities included in any underwritten registration will be
required to make any representations or warranties to the Company or the
underwriters (other than representations and warranties regarding such holder
and such holder's intended method of distribution) or to undertake any
indemnification or contribution obligations to the Company or the underwriters
with respect thereto, except as otherwise provided in Section 2(f).
3. Rule 144. If the Company shall have filed a registration statement which
has become effective pursuant to Section 12 of the Exchange Act or a
registration statement which has become effective pursuant to the Securities
Act, the Company will use its best efforts to file the reports required to be
filed by it under the Exchange Act and the rules and regulations adopted by the
Commission thereunder (or, if the Company is not required to file such reports,
will, upon the request of the Quad-C Holders or any other holder of more than
five percent of the Registrable Securities make publicly available other
information) and will take such further action as the Quad-C Holders or such
other holders may reasonably request, all to the extent required from time to
time to enable such holders to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by (i)
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or (ii) any similar rule or regulation hereafter adopted by the
Commission.
4. Amendments and Waivers. This Agreement may be amended and the Company
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act of the holders of
at least a majority of all Registrable Securities at the time outstanding;
provided, that any amendment to this Agreement that materially adversely affects
--------
the rights of any holder of Registrable Securities shall also require the
approval of the affected holder; provided further that this Agreement may be
-------- -------
amended by the Company and the holders of a majority of the Registrable
Securities to add as parties hereto Persons who in the future become holders of
Registrable Securities as permitted by the terms of the Shareholders Agreement.
5. Notices. All communications provided for hereunder shall be in writing
and shall be delivered personally or by facsimile or telex or sent by
first-class mail and addressed to such Shareholder at the address that such
Shareholder shall have furnished to the Company in writing, and if to the
Company, to:
15
Red Xxxxx International, Inc.
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
and Xxxx X. Xxxxx
Facsimile: 000-000-0000
with a copy to:
O'Melveny & Xxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxx, 00/xx/ Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: 000-000-0000
6. Binding Agreement. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and assigns. In addition, and whether or not any express assignment
shall have been made, the provisions of this Agreement which are for the benefit
of the holders of Registrable Securities as such shall be for the benefit of and
enforceable by any subsequent holder of any Registrable Securities who acquires
such shares in compliance with the applicable provisions of the Shareholders
Agreement, subject to the provisions respecting the minimum numbers or
percentages of shares of Registrable Securities required in order to be entitled
to certain rights, or take certain actions, contained herein.
7. Nominees for Beneficial Owners. In the event that Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its option and by written notice 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 percentage of
Registrable Securities held by any holder or holders of Registrable Securities
contemplated by this Agreement).
8. Descriptive Headings. The descriptive headings of the several sections
and paragraphs of this Agreement are inserted for reference only and shall not
limit or otherwise affect the meaning hereof.
9. Specific Performance. The parties hereto recognize and agree that money
damages may be insufficient to compensate the holders of any Registrable
Securities for breaches by the Company of the terms hereof and, consequently,
that the equitable remedy of specific performance of the terms hereof will be
available in the event of any such breach.
10. Governing Laws. All questions concerning the construction, validity and
interpretation of this agreement will be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the internal laws, and
not the law of conflicts, of the State of Colorado.
16
11. Third Party Beneficiaries. Each of the parties hereto acknowledges and
agrees that any Person who is a holder of Registrable Securities as defined
herein and who is not a party hereto shall have the rights granted to holders of
Registrable securities as intended hereby and for the purposes of exercising
such rights shall be a third party beneficiary hereof and entitled to enforce
such rights whether or not such Person or such Person's transferor is then a
party to this Agreement.
12. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
13. Severability. In the event that any one or more of the provisions
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 in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of the holders
of Registrable Securities shall be enforceable to the fullest extent permitted
by law.
14. Entire Agreement. This Agreement is intended by the parties hereto as a
final expression of their agreement and intended to be a complete and exclusive
statement of their agreement and understanding in respect to the subject matter
contained herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
17
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement on the day and year first above written.
RED XXXXX INTERNATIONAL, INC.
By: /s/ X. X. Xxxxxx
-------------------------------
Xxxxxxx X. Xxxxxx
President
SKYLARK COMPANY, LTD.
By:_______________________________
KIWANU YOKAWA
By:_______________________________
GAISHOKU SYSTEM KENKYUJO
COMPANY, LTD.
By:_______________________________
HIBARI GUAM
By:_______________________________
RR INVESTORS, LLC
By:_______________________________
Xxxxxx X. Xxxxxx, Xx.
President
S-1
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement on the day and year first above written.
RED XXXXX INTERNATIONAL, INC.
By:______________________________
Xxxxxxx X. Xxxxxx
President
SKYLARK COMPANY, LTD.
By: /s/ T. Chino
------------------------------
Tasuku Chino
KIWANU YOKAWA
By:______________________________
GAISHOKU SYSTEM KENKYUJO
COMPANY, LTD.
By:______________________________
HIBARI GUAM
By:______________________________
RR INVESTORS, LLC
By:______________________________
Xxxxxx X. Xxxxxx, Xx.
President
S-1
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement on the day and year first above written.
RED XXXXX INTERNATIONAL, INC.
By:______________________________
Xxxxxxx X. Xxxxxx
President
SKYLARK COMPANY, LTD.
By:______________________________
KIWANU YOKAWA
By:/s/ Kiwanu Yokoawa
------------------------------
GAISHOKU SYSTEM KENKYUJO
COMPANY, LTD.
By:______________________________
HIBARI GUAM
By:______________________________
RR INVESTORS, LLC
By:______________________________
Xxxxxx X. Xxxxxx, Xx.
President
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement on the day and year first above written.
RED XXXXX INTERNATIONAL, INC.
By:______________________________
Xxxxxxx X. Xxxxxx
President
SKYLARK COMPANY, LTD.
By:_______________________________
KIWANU YOKAWA
By:_______________________________
GAISHOKU SYSTEM KENKYUJO
COMPANY, LTD.
By:/s/ T. Yokokawa
-------------------------------
Xxxxxxx Xxxxxxxx
HIBARI GUAM
By:_______________________________
RR INVESTORS, LLC
By:_______________________________
Xxxxxx X. Xxxxxx, Xx.
President
S-1
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement on the day and year first above written.
RED XXXXX INTERNATIONAL, INC.
By:_______________________________
Xxxxxxx X. Xxxxxx
President
SKYLARK COMPANY, LTD.
By:_______________________________
KIWANU YOKAWA
By:_______________________________
GAISHOKU SYSTEM KENKYUJO
COMPANY, LTD.
By:_______________________________
HIBARI GUAM
By:/s/ T. Niibori
-------------------------------
Tadashi Niibori
RR INVESTORS, LLC
By:_______________________________
Xxxxxx X. Xxxxxx, Xx.
President
S-1
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement on the day and year first above written.
RED XXXXX INTERNATIONAL, INC.
By:_______________________________
Xxxxxxx X. Xxxxxx
President
SKYLARK COMPANY, LTD.
By:_______________________________
KIWANU YOKAWA
By:_______________________________
GAISHOKU SYSTEM KENKYUJO
COMPANY, LTD.
By:_______________________________
HIBARI GUAM
By:_______________________________
RR INVESTORS, LLC
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------
Xxxxxx X. Xxxxxx, Xx.
President
S-1
RR INVESTORS II, LLC
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------
Xxxxxx X. Xxxxxx, Xx.
President
XXXXXXX X. XXXXXX
__________________________________
Xxxxxxx X. Xxxxxx
THE XXXXXXX XXXXXX
INTERVIVOS TRUST
__________________________________
The Xxxxxxx X. Xxxxxx
Intervivos Trust
THE XXXXXX X. XXXXXX
INTERVIVOS TRUST
__________________________________
The Xxxxxx X. Xxxxxx
Intervivos Trust
XXXXXXX X. XXXXX
__________________________________
Xxxxxxx X. Xxxxx
S-2
RR INVESTORS II, LLC
By:_______________________________
Xxxxxx X. Xxxxxx, Xx.
President
XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx
THE XXXXXXX XXXXXX
INTERVIVOS TRUST
__________________________________
The Xxxxxxx X. Xxxxxx
Intervivos Trust
THE XXXXXX X. XXXXXX
INTERVIVOS TRUST
__________________________________
The Xxxxxx X. Xxxxxx
Intervivos Trust
XXXXXXX X. XXXXX
__________________________________
Xxxxxxx X. Xxxxx
S-2
RR INVESTORS II, LLC
By:____________________________________
Xxxxxx X. Xxxxxx, Xx.
President
XXXXXXX X. XXXXXX
_______________________________________
Xxxxxxx X. Xxxxxx
THE XXXXXXX XXXXXX
INTERVIVOS TRUST
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------
The Xxxxxxx X. Xxxxxx
Intervivos Trust, by Xxxxxxx X. Xxxxxx,
Trustee
THE XXXXXX X. XXXXXX
INTERVIVOS TRUST
_______________________________________
The Xxxxxx X. Xxxxxx
Intervivos Trust
XXXXXXX X. XXXXX
_______________________________________
Xxxxxxx X. Xxxxx
S-2
RR INVESTORS II, LLC
By:___________________________________
Xxxxxx X. Xxxxxx, Xx.
President
XXXXXXX X. XXXXXX
______________________________________
Xxxxxxx X. Xxxxxx
THE XXXXXXX XXXXXX
INTERVIVOS TRUST
______________________________________
The Xxxxxxx X. Xxxxxx
Intervivos Trust
THE XXXXXX X. XXXXXX
INTERVIVOS TRUST
/s/ Xxxxxx X. Xxxxxx
--------------------------------------
The Xxxxxx X. Xxxxxx
Intervivos Trust, by Xxxxxx X. Xxxxxx,
Turstee
XXXXXXX X. XXXXX
______________________________________
Xxxxxxx X. Xxxxx
S-2
RR INVESTORS II, LLC
By:_______________________________
Xxxxxx X. Xxxxxx, Xx.
President
XXXXXXX X. XXXXXX
__________________________________
Xxxxxxx X. Xxxxxx
THE XXXXXXX XXXXXX
INTERVIVOS TRUST
__________________________________
The Xxxxxxx X. Xxxxxx
Intervivos Trust
THE XXXXXX X. XXXXXX
INTERVIVOS TRUST
__________________________________
The Xxxxxx X. Xxxxxx
Intervivos Trust
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
S-2
XXXXXX XXXXXXX
/s/ Xxxxxx Xxxxxxx
----------------------------------
Xxxxxx Xxxxxxx
SHAMROCK INVESTMENT COMPANY
__________________________________
Shamrock Investment Company
XXXXXX X. XXXXXX
__________________________________
Xxxxxx X. Xxxxxx
XXXXXXX XXXXXX
__________________________________
Xxxxxxx Xxxxxx
XXXXXXX X. XXXXX
__________________________________
Xxxxxxx X. Xxxxx
X.X. XXXXX, XX.
__________________________________
LV. Xxxxx, Xx.
XXXXX XXXXXX
__________________________________
Xxxxx Xxxxxx
S-3
XXXXXX XXXXXXX
____________________________________
Xxxxxx Xxxxxxx
SHAMROCK INVESTMENT COMPANY
/S/ Xxxxxx X. Xxxxxx, C.O.O.
------------------------------------
Shamrock Investment Company
XXXXXX X. XXXXXX
____________________________________
Xxxxxx X. Xxxxxx
XXXXXXX XXXXXX
____________________________________
Xxxxxxx Xxxxxx
XXXXXXX X. XXXXX
____________________________________
Xxxxxxx X. Xxxxx
X.X. XXXXX, XX.
____________________________________
LV. Xxxxx, Xx.
XXXXX XXXXXX
____________________________________
Xxxxx Xxxxxx
S-3
XXXXXX XXXXXXX
________________________________
Xxxxxx Xxxxxxx
SHAMROCK INVESTMENT COMPANY
________________________________
Shamrock Investment Company
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx
XXXXXXX XXXXXX
________________________________
Xxxxxxx Xxxxxx
XXXXXXX X. XXXXX
________________________________
Xxxxxxx X. Xxxxx
X.X. XXXXX, XX.
________________________________
LV. Xxxxx, Xx.
XXXXX XXXXXX
________________________________
Xxxxx Xxxxxx
S-3
XXXXXX XXXXXXX
______________________________
Xxxxxx Xxxxxxx
SHAMROCK INVESTMENT COMPANY
______________________________
Shamrock Investment Company
XXXXXX X. XXXXXX
______________________________
Xxxxxx X. Xxxxxx
XXXXXXX XXXXXX
/s/ Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxxx Xxxxxx
XXXXXXX X. XXXXX
______________________________
Xxxxxxx X. Xxxxx
X.X. XXXXX, XX.
______________________________
LV. Xxxxx, Xx.
XXXXX XXXXXX
______________________________
Xxxxx Xxxxxx
S-3
XXXXXX XXXXXXX
______________________________
Xxxxxx Xxxxxxx
SHAMROCK INVESTMENT COMPANY
______________________________
Shamrock Investment Company
XXXXXX X. XXXXXX
______________________________
Xxxxxx X. Xxxxxx
XXXXXXX XXXXXX
______________________________
Xxxxxxx Xxxxxx
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
------------------------------
Xxxxxxx X. Xxxxx
X.X. XXXXX, XX.
______________________________
LV. Xxxxx, Xx.
XXXXX XXXXXX
______________________________
Xxxxx Xxxxxx
S-3
XXXXXX XXXXXXX
_________________________________
Xxxxxx Xxxxxxx
SHAMROCK INVESTMENT COMPANY
_________________________________
Shamrock Investment Company
XXXXXX X. XXXXXX
_________________________________
Xxxxxx X. Xxxxxx
XXXXXXX XXXXXX
_________________________________
Xxxxxxx Xxxxxx
XXXXXXX X. XXXXX
_________________________________
Xxxxxxx X. Xxxxx
X.X. XXXXX, XX.
/s/ LV. Xxxxx, Xx.
---------------------------------
LV. Xxxxx, Xx.
XXXXX XXXXXX
_________________________________
Xxxxx Xxxxxx
S-3
XXXXXX XXXXXXX
_______________________________
Xxxxxx Xxxxxxx
SHAMROCK INVESTMENT COMPANY
_______________________________
Shamrock Investment Company
XXXXXX X. XXXXXX
_______________________________
Xxxxxx X. Xxxxxx
XXXXXXX XXXXXX
_______________________________
Xxxxxxx Xxxxxx
XXXXXXX X. XXXXX
_______________________________
Xxxxxxx X. Xxxxx
X.X. XXXXX, XX.
_______________________________
LV. Xxxxx, Xx.
XXXXX XXXXXX
/s/ Xxxxx Xxxxxx
-------------------------------
Xxxxx Xxxxxx
S-3
Schedule A
Skylark Holders
---------------
Skylark Company, Ltd.
Kiwanu Yokawa
Gaishoku System Kenkyujo Company, Ltd.
Hibari Guam Corporation
Schedule B
Other Shareholders
------------------
Xxxxxx X. Xxxxxx
Schedule C
Xxxxxx Group
------------
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx Intervivos Trust
Xxxxxx X. Xxxxxx Intervivos Trust
Xxxxxxx X. Xxxxx
Xxxxxx Xxxxxxx
Shamrock Investment Company, a Washington general partnership
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxxx X. Xxxxx
X. X. Xxxxx, Xx.
