AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
Exhibit
99.2
AMENDED AND
RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND
RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of
March 8, 2005 between Xxxxxxxx Xxxxx Co., a Utah corporation (the “Company”), and Knowledge
Capital Investment Group, a Texas general partnership (the “Purchaser”).
RECITALS
WHEREAS, Purchaser is a
holder of 1,015,002 shares of the Company’s outstanding Common Stock and
3,311,438 shares of the Company’s outstanding Series A Preferred Stock, and the
Company and Purchaser have previously entered into the Registration Rights
Agreement dated June 2, 1999 (the “Prior Rights
Agreement”); and
WHEREAS, the Company and
Purchaser entered into a Preferred Stock Amendment and Warrant Issuance
Agreement, dated November 29, 2004 (as amended from time to time, the
“Amendment
Agreement”), pursuant to
which, among other things, the Company and Purchaser, on the terms and subject
to the conditions thereof, agreed to amend and restate the Prior Rights
Agreement as set forth herein.
NOW, THEREFORE, in
consideration of the mutual promises and covenants set forth herein, the Company
and Purchaser hereby agree that the Prior Rights Agreement is hereby terminated
and shall be superceded and replaced in its entirety by this Agreement, and the
parties further agree as follows:
1. Definitions. For purposes of
this Agreement, the following terms have the following meanings when used herein
with initial capital letters:
(a) Advice: As defined in
Section 7
hereof.
(b) Affiliate: An Affiliate of
any Person means any other Person that, directly or indirectly through one or
more intermediaries, controls or is controlled by, or is under common control
with, such Person; and, for the purposes of this definition only, “control” (including the
terms “controlling,” “controlled
by” and
“under common
control with”) means the
possession, direct or indirect, of the power to direct or cause the direction of
the management, policies or activities of a Person whether through the ownership
of securities, by contract or agency or otherwise.
(c) Amendment
Agreement: As defined in
the Recitals above.
(d) Common
Stock: The common
stock, par value $0.05, of the Company.
(e) Common
Registrable Securities: All shares of
Common Stock acquired by Purchaser or any Qualified Transferee (including any
shares of Common Stock or other securities that may be received by Purchaser or
such Qualified Transferee (x) as a result of a stock dividend or stock split of
the Common Stock or (y) on account of the Common Stock in a recapitalization or
other transaction involving the Company) upon the original issuance thereof, and
at all times subsequent thereto, including without limitation all shares of
Common Stock held by Purchaser on the date hereof.
(f) Demand
Notice: As defined in
Section 3
hereof.
(g) Demand
Registration: As defined in
Section 4
hereof.
(h) Losses: As defined in
Section 9
hereof.
(i) Piggyback
Registration: As defined in
Section 5
hereof.
(j) Prospectus: The prospectus
included in any Registration Statement (including without limitation a
prospectus that discloses information previously omitted from a prospectus filed
as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Securities covered by such Registration Statement and all
other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
(k) Purchaser
Warrant: The warrant to
purchase shares of Common Stock issued to the Purchaser pursuant to the
Amendment Agreement.
(l) Qualified
Transferee: Up to, but not
more than, ten “Permitted Transferees” as such term is defined in the Amended
and Restated Shareholders Agreement, dated as of the date hereof, between the
Company and the Purchaser; provided, however, that (i) any
contemporaneous transfer to a group of Permitted Transferees comprised of
Affiliated Persons (such as, for example, a group of Affiliated investment
funds) shall be deemed to be a transfer to one Permitted Transferee for purposes
of calculating the number of Permitted Transferees that shall be Qualified
Transferees pursuant to this Agreement and (ii) any transfer of any Warrant
Shares by the Purchaser to any stockholder, partner or other equity holder of
the Purchaser shall be deemed to be a transfer to a Qualified Transferee, but
only for the sole purpose of such transferee receiving the rights set forth in
Section 3 regarding the resale of such Warrant Shares in the Warrant
Registration Statement.
(m) Registrable
Securities: The Common
Registrable Securities, the Series B Registrable Securities and the Warrant
Registrable Securities and all other securities of the Company of any class or
series that are otherwise publicly traded and are beneficially owned by
Purchaser or any Qualified Transferee, until, with respect to each holder of
such securities, the earlier of, (i) all such securities held by such holder
being effectively registered under the Securities Act and disposed of in
accordance with the Registration Statement covering them, (ii) all such
securities held by such holder being immediately resaleable by such holder under
Rule 144 during any 90-day period or (iii) all such securities held by such
holder being resaleable by such holder pursuant to Rule 144(k).
(n) Registration
Expenses: As defined in
Section 8
hereof.
(o) Registration
Statement: Any registration
statement of the Company under the Securities Act that covers any of the
Registrable Securities pursuant to the provisions of this Agreement, including
the related Prospectus, all amendments and supplements to such registration
statement (including post-effective amendments), all exhibits and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
(p) Rule 144: Rule 144
under the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
(q) Sales
Price: The volume times
the sales prices for each regular way trade during the measurement period
divided by the total volume during such period (referred to as the “volume
weighted average” on the Bloomberg News Service and derived therefrom, or, if
such service no longer publishes such information or ceases to exist, such
alternative service as the Company may select in good faith) or, in case no such
sale takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system, quotation system or such other similar system of
any national securities exchange as reported on the Bloomberg News Service, or,
if such service no longer publishes such information or ceases to exist, such
alternative service as the Company may select in good faith, if on any such date
the Common Stock is not traded or quoted by any national securities exchange,
the average of the closing bid and asked prices furnished by a professional
market maker making a market in the Common Stock selected by the Company in good
faith, or if no market maker is making a market in the Common Stock, the fair
value of such shares on such date as determined by the Company in good
faith.
(r) SEC: The Securities
and Exchange Commission.
(s) Securities
Act: The Securities
Act of 1933, as amended.
(t) Senior
Preferred: The Series A
Preferred and the Series B Preferred.
(u) Series A
Preferred: Shares of the
Company’s Series A Preferred Stock with a liquidation preference of
$25.00 per
share.
(v) Series B
Preferred: Shares of
Series B Preferred Stock with a liquidation preference of
$25.00 per share, which
shares will be issued automatically upon the conversion of any outstanding
shares of Series A Preferred.
(w) Series B
Registrable Securities: All shares of
Series B Preferred acquired by any Qualified Transferee pursuant to the
transfer and related conversion of any shares of Series A Preferred held by the
Purchaser (including any shares of Series B Preferred or other securities
that may be received by the Purchaser or any such Qualified Transferee
(x) as a result of a stock dividend or stock split of Series B
Preferred or (y) on account of Series B Preferred in a
recapitalization or other transaction involving the Company), upon the
respective original issuance thereof, and at all times subsequent thereto.
(x) Special
Counsel: As defined in
Section 8(b)
hereof.
(y) Trading
Day: Any day on which
the New York Stock Exchange is open for trading or, if the Common Stock is not
listed or admitted to trading on any national securities exchange, any day other
than a Saturday, Sunday or a day on which banking institutions in the State of
New York are authorized or obligated by law or executive order to
close.
(z) Underwritten
Registration or Underwritten Offering: A distribution,
registered pursuant to the Securities Act in which securities of the company are
sold to an underwriter for reoffering to the public.
(aa) Warrant
Registrable Securities: All Warrant
Shares acquired by the Purchaser or any Qualified Transferee upon the exercise
of the Purchaser Warrant (including any shares of Common Stock or other
securities that may be received by Purchaser or any such Qualified Transferee
(x) as a result of a stock dividend or stock split of Common Stock or
(y) on account of the Warrant Shares in a recapitalization or other
transaction involving the Company) upon the respective original issuance
thereof, and at all times subsequent thereto.
(bb) Warrant
Shares: All shares of
Common Stock issued or issuable upon the exercise of the Purchaser
Warrant.
2. Registration of
the Series B Registrable
Securities and the Common Registrable Securities.
(a) The Company shall
file with the SEC as soon as reasonably practicable, and in any event within 120
days from the date hereof, a registration statement covering the resale of the
Series B Registrable Securities and the Common Registrable Securities (and all
shares issuable thereon in connection with any stock splits, dividends,
recapitalizations, consolidations or other similar transactions) for an offering
to be made on a continuous basis pursuant to Rule 415 (the “Series B
Registration Statement”). The Series B
Registration Statement shall be on Form S-3 (except if the Company is not then
eligible to register for resale the Series B Preferred on a Form S-3, in which
case such registration shall be on a Form X-0, Xxxx X-0 or another appropriate
form). The Company shall use its reasonable best efforts to (i) cause the Series
B Registration Statement to become or be declared effective by the SEC as soon
as reasonably practicable thereafter, and, in any event, within 240 calendar
days following its initial filing with the SEC (the “Effectiveness
Deadline Date”) and (ii) keep
the Series B Registration Statement continuously effective under the Securities
Act until all Series B Registrable Securities covered by such Registration
Statement have been sold or three years from the date it becomes effective,
whichever is sooner to occur.
(b) If, by the
Effectiveness Deadline Date, the Series B Registration Statement is not declared
effective by the Commission (a “Registration
Default”), then the
Company shall be required to pay to Purchaser or any Qualified Transferee on
each Dividend Payment Date (as such term is defined in the Company’s Articles of
Restatement amending and restating the Company’s Articles of Incorporation the
(“Restated
Articles”)) that any
Regular Dividend (as such term is defined in the Restated Articles) is due and
payable to holders of shares of Senior Preferred, a cash amount for each share
of Senior Preferred held by Purchaser or such Qualified Transferee equal to (x)
$0.125 (as such amount may be adjusted for any stock splits, dividends,
recapitalizations, consolidations or other similar transactions with respect to
the Senior Preferred) multiplied by (y) a fraction, the numerator of which is the
number of days elapsing during the period commencing on and including the later
of (1) the day following such Registration Default or (2) the day following the
most recent Dividend Payment Date following such Registration Default and ending
on the earlier of (1) such Dividend Payment Date if the Series B Registration
Statement has not been declared effective prior to such Dividend Payment Date or
(2) the date that the Series B Registration Statement is declared effective and
the denominator of which is 365
days.
3. Registration of
Warrant Registrable
Securities. At any time
after the date hereof, the Purchaser and/or any Qualified Transferees holding at
least two-thirds of the Warrant Shares issued or issuable upon exercise of the
Purchaser Warrant (including Warrant Shares that may be issued to the persons
making such demand upon exercise of the Purchaser Warrant (or any Warrants
issued to Qualified Transferees pursuant to transfers of the Purchaser Warrant)
held by them) will have the right by written notice delivered to the Company (a
“Demand Notice”) to require the Company to file with the SEC a registration
statement covering the resale of all Warrant Registrable Securities under and in
accordance with the provisions of the Securities Act on Form S-3 (except if the
Company is not then eligible to register for resale the Warrant Registrable
Securities on a Form S-3, then such registration shall be on a Form X-0, Xxxx
X-0 or another appropriate form) (the “Warrant Registration Statement”);
provided, however, that no Demand Notice may be given if the weighted average
Sales Price of the Common Stock over the previous ten Trading Days is less than
80% of the Purchaser Warrant’s exercise price (the “Warrant Registration
Threshold”). The Company shall use its reasonable best efforts to (a) cause the
Warrant Registration Statement to become or be declared effective by the SEC as
soon as reasonably practicable following filing and (b) keep the Warrant
Registration Statement continuously effective under the Securities Act until (i)
all Warrant Registrable Securities covered by the Warrant Registration Statement
have been sold, (ii) the Warrant Registrable Securities are otherwise resaleable
pursuant to Rule 144 during any 90-day period or (iii) three years from the date
the Warrant Registration Statement becomes or is declared effective, whichever
is sooner to occur.
4. Special Demand
Registration.
(a) Requests for
Registration. If and only if
(i) the Company has failed to cause to become effective, or maintain the
effectiveness of, either the Series B Registration Statement or the Warrant
Registration Statement in accordance with the terms of this Agreement, (ii) the
holders of the Registrable Securities have requested to participate in a
Piggyback Registration, but such requested participation has been reduced to
zero pursuant to Section 5(b) (a “Full
Underwriter Cutback”) or (iii) either
the Series B Registration Statement or the Warrant Registration Statement is no
longer effective, then, in the case of clause (i) above, until the Series B
Registration Statement or the Warrant Registration Statement, as the case may
be, is declared effective, or, in the case of clause (ii) above, during the
60-day period following any Full Underwriter Cutback, or, in the case of clause
(iii) above, at any time, the holders of Registrable Securities constituting at
least 5% of the total number of Registrable Securities then outstanding will
have the right to deliver a Demand Notice to require the Company to register, in
accordance with Section 4(b) (a “Demand
Registration”), under and in
accordance with the provisions of the Securities Act the number of Registrable
Securities requested to be so registered (but not less than 5% of the total
number of Registrable Securities then outstanding).
The number of
Demand Registrations pursuant to this Section 4(a) shall not exceed
one; provided, however, that in
determining the number of Demand Registrations to which the holders of
Registrable Securities are entitled there shall be excluded (1) any Demand
Registration that is an underwritten registration if the managing underwriter or
underwriters have advised the holders of Registrable Securities that the total
number of Registrable Securities requested to be included therein exceeds the
number of Registrable Securities that can be sold in such offering in accordance
with the provisions of this Agreement without materially and adversely affecting
the success of such offering, (2) any Demand Registration that does not become
effective or is not maintained effective for the period required pursuant to
Section 4(b) hereof, unless in
the case of this clause (2) such Demand Registration does not become effective
after being filed by the Company solely by reason of the refusal to proceed by
the holders of Registrable Securities unless (i) the refusal to proceed is based
upon the advice of counsel relating to a matter with respect to the Company or
(ii) the holders of the Registrable Securities elect to pay all Registration
Expenses in connection with such Demand Registration and (3) any Demand
Registration in connection with which any other shareholder of the Company
exercises a right of first refusal which it may otherwise have and purchases all
the stock registered and to be sold pursuant to the Demand
Registration.
(b) Filing and
Effectiveness. The Company will
file a Registration Statement relating to any Demand Registration within 60
calendar days, and will use its reasonable best efforts to cause the same to be
declared effective by the SEC as soon as practicable thereafter, and in any
event, within 120 calendar days of the date on which the holders of Registrable
Securities first give the Demand Notice required by Section 4(a) hereof with
respect to such Demand Registration.
All requests made
pursuant to this Section 4 will specify the
number of Registrable Securities to be registered and will also specify the
intended methods of disposition thereof; provided, that if the
holder demanding such registration specifies one particular type of underwritten
offering, such method of disposition shall be such type of underwritten offering
or a series of such underwritten offerings (as such demanding holders of
Registrable Securities may elect) during the period during which the
Registration Statement is effective.
If any Demand
Registration is requested to be effected as a “shelf” registration by the
holders of Registrable Securities demanding such Demand Registration, the
Company will use its reasonable best efforts to keep the Registration Statement
filed in respect thereof effective for a period of up to 12 months from the date
on which the SEC declares such Registration Statement effective (subject to
extension pursuant to Sections 6 and 7 hereof) or such
shorter period that will terminate when all Registrable Securities covered by
such Registration Statement have been sold pursuant to such Registration
Statement.
Within ten
calendar days after receipt of such Demand Notice, the Company will serve
written notice thereof (the “Notice”) to all other
holders of Registrable Securities and will, subject to the provisions of Section
4(c) hereof, include
in such registration all Registrable Securities with respect to which the
Company receives written requests for inclusion therein within 20 calendar days
after the receipt of the Notice by the applicable holder.
The holders of
Registrable Securities will be permitted to withdraw Registrable Securities from
a Registration at any time prior to the effective date of such Registration,
provided, the remaining
number of Registrable Securities subject to a Demand Notice is at least 5% of
the total number of Registrable Securities then outstanding.
(c) Priority on
Demand Registration. If any of the
Registrable Securities registered pursuant to a Demand Registration are to be
sold in one or more firm commitment underwritten offerings, the Company may also
provide written notice to holders of its equity securities (other than
Registrable Securities), if any, who have piggyback registration rights with
respect thereto and will permit all such holders who request to be included in
the Demand Registration to include any or all equity securities held by such
holders in such Demand Registration on the same terms and conditions as the
Registrable Securities. Notwithstanding the foregoing, if the managing
underwriter or underwriters of the offering to which such Demand Registration
relates advise the holders of Registrable Securities that the total amount of
holders of Registrable Securities and securities that such equity security
holders intend to include in such Demand Registration is in the aggregate such
as to materially and adversely affect the success of such offering, then (i)
first, the amount of securities to be offered for the account of the holders of
such other equity securities will be reduced, to zero if necessary (pro rata
among such holders on the basis of the amount of such other securities to be
included therein by each such holder), and (ii) second, the number of
Registrable Securities included in such Demand Registration will, if necessary,
be reduced and there will be included in such firm commitment underwritten
offering only the number of Registrable Securities that, in the opinion of such
managing underwriter or underwriters, can be sold without materially and
adversely affecting the success of such offering, allocated pro rata among
the holders of Registrable Securities on the basis of the amount of Registrable
Securities to be included therein by each such holder.
(d) Postponement of
Demand Registration. The Company will
be entitled to postpone the filing period (or suspend the effectiveness) of any
Demand Registration for a reasonable period of time not in excess of 90 calendar
days in any 12-month period, if the Company determines, in the good faith
exercise of its reasonable business judgment, that such registration and
offering could materially interfere with bona fide financing plans of the
Company or would require disclosure of information, the premature disclosure of
which could materially and adversely affect the Company. If the Company
postpones the filing of a Registration Statement, it will promptly notify the
holders of Registrable Securities in writing when the events or circumstances
permitting such postponement have ended.
5. Piggyback
Registration.
(a) Right to
Piggyback. If at any time
the Company proposes to file a registration statement under the Securities Act
with respect to an offering of any class of equity securities (other than a
registration statement (i) on Form X-0, X-0 or any successor form thereto or
(ii) filed solely in connection with an offering made solely to employees of the
Company), whether or not for its own account, then the Company will give written
notice of such proposed filing to the holders of Registrable Securities at least
10 calendar days before the anticipated filing date. Such notice will offer such
holders the opportunity to register such amount of Registrable Securities as
each such holder may request (a “Piggyback
Registration”); provided, however, in no event
shall the amount of Registrable Securities included in any Piggyback
Registration exceed 20% of the total amount of securities included in such
offering. Subject to the limitations set forth in this Section 5(a) and the
provisions of Section 5(b) hereof, the
Company will include in each such Piggyback Registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein (other than (i) any Registrable Securities that are otherwise
covered by an effective Registration Statement (including, without limitation,
the Series B Registration Statement or the Warrant Registration Statement)
unless, with respect to such Registrable Securities, the holders of such
Registrable Securities agree to pay any incremental increase in the Registration
Expenses for such Piggyback Registration resulting from including such
Registrable Securities in such Piggyback Registration or (ii) any Warrant Share
Registrable Securities if the weighted average Sales Price of the Common Stock
has not reached the Warrant Registration Threshold). The holders of Registrable
Securities will be permitted to withdraw all or part of the Registrable
Securities from a Piggyback Registration at any time prior to the effective date
of such Piggyback Registration.
(b) Priority on
Piggyback Registrations. The Company will
cause the managing underwriter or underwriters of a proposed underwritten
offering to permit holders of Registrable Securities requested to be included in
the registration for such offering to include therein all such Registrable
Securities requested to be so included on the same terms and conditions as any
similar securities, if any, of the Company included therein. Notwithstanding the
foregoing, if the managing underwriter or underwriters of such offering deliver
an opinion to the holders of Registrable Securities to the effect that the total
amount of securities which such holders, the Company and any other persons
having rights to participate in such registration propose to include in such
offering is such as to materially and adversely affect the success of such
offering, then:
(i) if such
registration is a primary registration on behalf of the Company, the amount of
securities to be included therein (x) for the account of holders of Registrable
Securities on the one hand (allocated pro rata among such holders on the basis
of the Registrable Securities requested to be included therein by each such
holder), and (y) for the account of all such other persons (exclusive of the
Company), on the other hand, will be reduced (to zero if necessary) pro rata in
proportion to the respective amounts of securities requested to be included
therein to the extent necessary to reduce the total amount of securities to be
included in such offering to the amount recommended by such managing underwriter
or underwriters;
(ii) if such
registration is an underwritten secondary registration on behalf of holders of
securities of the Company other than Registrable Securities, the Company will
include therein: (x) first, up to the full number of securities of such persons
exercising “demand” registration rights that in the opinion of such managing
underwriter or underwriters can be sold or allocated among such holders as they
may otherwise so determine, and (y) second, the amount of Registrable Securities
and securities proposed to be sold by any other person in excess of the amount
of securities such persons exercising “demand” registration rights propose to
sell that, in the opinion of such managing underwriter or underwriters, can be
sold (allocated pro rata among the holders of such Registrable Securities and
such other persons on the basis of the dollar amount of securities requested to
be included therein).
(c) Registration of
Securities Other Than Registrable Securities. Without the
written consent of the holders of a majority of the then-outstanding Registrable
Securities, the Company will not grant to any person the right to request the
Company to register any securities of the Company under the Securities Act
unless the rights so granted are subject to the prior rights of the holders of
Registrable Securities set forth herein, and if exercised, would not otherwise
conflict or be inconsistent with the provisions of this Agreement.
6. Restrictions on
Sale by Holders of Registrable Securities. Each holder of
Registrable Securities whose Registrable Securities are covered by a
Registration Statement filed pursuant to Section 2, 3, 4 or 5 hereof agrees and
will confirm such agreement in writing, if such holder is so requested (pursuant
to a timely written notice) by the managing underwriter or underwriters in an
underwritten offering, not to effect any public sale or distribution of any of
the Company’s equity securities (except as part of such underwritten offering),
including a sale pursuant to Rule 144, during the 10-calendar day period prior
to, and during the 90-calendar day period (or such longer period as any managing
underwriter or underwriters may reasonably request in connection with any
underwritten public offering) beginning on the closing date of each underwritten
offering made pursuant to such Registration Statement or such other shorter
period to which the executive officers may agree. If a request is made pursuant
to this Section 6, the time period
during which a Demand Registration (if a shelf registration) is required to
remain continuously effective pursuant to Section 2, 3 or 4(b) will be extended
by 100 calendar days or such shorter period that will terminate when all such
Registrable Securities not so included have been sold pursuant to such
Registration Statement.
7. Registration
Procedures. In
connection with the Company’s registration obligations pursuant to Sections
2, 3, 4 and 5 hereof, and
subject to the limitations on such registration obligations set forth in such
Sections, the Company will effect such registrations to permit the sale of such
Registrable Securities in accordance with the intended method or methods of
disposition hereof, and pursuant thereto the Company will as expeditiously as
possible:
(a) Prepare and file
with the SEC a Registration Statement or Registration Statements on any
appropriate form under the Securities Act available for the sale of the
Registrable Securities by the holders thereof in accordance with the intended
method or methods of distribution thereof (including, without limitation,
distributions in connection with transactions with broker-dealers or others for
the purpose of hedging Registrable Securities, involving possible sales, short
sales, options, pledges or other transactions which may require delivery and
sale to broker-dealers or others of Registrable Securities), and cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, however, that before
filing a Registration Statement or Prospectus or any amendments or supplements
thereto (including documents that would be incorporated or deemed to be
incorporated therein by reference), the Company will furnish to the holders of
the Registrable Securities covered by such Registration Statement, the Special
Counsel and the managing underwriters, if any, copies of all such documents
proposed to be filed, which documents will be subject to the review of such
holders, the Special Counsel and such underwriters, and the Company will not
file any such Registration Statement or amendment thereto or any Prospectus or
any supplement thereto (including such documents which, upon filing, would or
would be incorporated or deemed to be incorporated by reference therein) to
which the holders of a majority of the Registrable Securities covered by such
Registration Statement, the Special Counsel or the managing underwriter, if any,
shall reasonably object on a timely basis.
(b) Prepare and file
with the SEC such amendments and post-effective amendments to each Registration
Statement as may be necessary to keep such Registration Statement continuously
effective for the applicable period specified in Section 2, 3 or 4; cause the
related Prospectus to be supplemented by any required Prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 (or any similar provisions
then in force) under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or to such Prospectus as so
supplemented.
(c) Notify the selling
holders of Registrable Securities, the Special Counsel and the managing
underwriters, if any, promptly, and (if requested by any such person) confirm
such notice in writing, (i) when a Prospectus or any Prospectus supplement
or post-effective amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of any request by the SEC or any other federal or state governmental
authority for amendments or supplements to a Registration Statement or related
Prospectus or for additional information, (iii) of the issuance by the SEC
or any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) if at any time the representations
and warranties of the Company contained in any agreement contemplated by
Section 7(n) hereof (including
any underwriting agreement) cease to be true and correct, (v) of the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (vi) of the occurrence of any event which
makes any statement made in such Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or which requires the making of any changes in a
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and, in the case of the
Prospectus, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated or is necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading and (vii) of the Company’s reasonable determination that a
post-effective amendment to a Registration Statement would be
appropriate.
(d) Use every
reasonable effort to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement, or the lifting of any suspension of
the qualification (or exemption from qualification) of any of the Registrable
securities for sale in any jurisdiction, at the earliest possible
moment.
(e) If requested by
the managing underwriters, if any, or the holders of a majority of the
Registrable Securities being registered, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information as the
managing underwriters, if any, and such holder agree should be included therein
as may be required by applicable law and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as soon as practicable
after the Company has received notification of the matters to be incorporated in
such Prospectus supplement or post-effective amendment; provided, however, that the Company
will not be required to take any actions under this Section 7(e) that are not, in
the opinion of counsel for the Company, in compliance with applicable
law.
(f) Furnish to each
selling holder of Registrable Securities, the Special Counsel and each managing
underwriter, if any, without charge, at least one conformed copy of the
Registration Statement and any post-effective amendment thereto, including
financial statements (but excluding schedules, all documents incorporated or
deemed incorporated therein by reference and all exhibits, unless requested in
writing by such holder, counsel or underwriter).
(g) Deliver to each
selling holder of Registrable Securities, the Special Counsel and the
underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses relating to such Registrable Securities (including each preliminary
prospectus) and any amendment or supplement thereto as such persons may request;
and the Company hereby consents to the use of such Prospectus or each amendment
or supplement thereto by each of the selling holders of Registrable Securities
and the underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or supplement
thereto.
(h) Prior to any
public offering of Registrable Securities, to register or qualify or cooperate
with the selling holders of Registrable Securities, the underwriters, if any,
and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions within the United States as any seller or underwriter
reasonably requests in writing; keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdiction of the Registrable
Securities covered by the applicable Registration Statement; provided, however, that the Company
will not be required to (i) qualify generally to do business in any
jurisdiction in which it is not then so qualified or (ii) take any action
that would subject it to general service of process in any such jurisdiction in
which it is not then so subject.
(i) Cooperate with the
selling holders of Registrable Securities and the managing underwriters, if any,
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates will not bear any
restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters, if any,
shall request at least two business days prior to any sale of Registrable
securities to the underwriters.
(j) Cause the
Registrable Securities covered by the applicable Registration Statement to be
registered with or approved by such other governmental agencies or authorities
within the United States except as may be required solely as a consequence of
the nature of such selling holder’s business, in which case the Company will
cooperate in all reasonable respects with the filing of such Registration
Statement and the granting of such approvals as may be necessary to enable the
seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities.
(k) Upon the
occurrence of any event contemplated by Section 7(c)(vi) or
7(c)(vii) hereof,
prepare a supplement or post-effective amendment to each Registration Statement
or a supplement to the related Prospectus or any document incorporated therein
by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
such Prospectus will not contain 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 light of the circumstances under which they were made,
not misleading.
(l) Use its best
efforts to cause all shares of Common Stock covered by any Registration
Statement to be, at the Company’s option (i) listed on each securities exchange,
if any, on which similar securities issued by the Company are then listed or, if
no similar securities issued by the Company are then so listed, on the New York
Stock Exchange or another national securities exchange if the securities qualify
to be so listed or (ii) authorized to be quoted on the National Association of
Securities Dealers Automated Quotation System (“NASDAQ”) or the National
Market System of NASDAQ if the securities qualify to be so quoted; in each case,
if requested by the holders of a majority of the Registrable Securities covered
by such Registration Statement or the managing underwriters, if
any.
(m) Engage an
appropriate transfer agent and provide the transfer agent with printed
certificates for the Registrable Securities in a form eligible for deposit with
The Depository Trust Company and provide a CUSIP number for the Registrable
Securities.
(n) Enter into such
agreements (including, in the event of an underwritten offering, an underwriting
agreement in form, scope and substance as is customary in underwritten
offerings) and take all such other actions in connection therewith (including
those requested by the holders of a majority of the Registrable Securities being
sold or, in the event of an underwritten offering, those requested by the
managing underwriters) in order to expedite or facilitate the disposition of
such Registrable Securities and in such connection, whether or not an
underwriting agreement is entered into and whether or not the registration is an
underwritten registration: (i) make such representations and warranties to
the holders of such Registrable Securities and the underwriters, if any, with
respect to the business of the Company and its subsidiaries, the Registration
Statement, Prospectus and documents incorporated by reference or deemed
incorporated by reference, if any, in each case, in form, substance and scope as
are customarily made by issuers to underwriters in underwritten offerings and
confirm the same if and when requested; (ii) obtain opinions of counsel to
the Company and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing underwriters, if
any, and the holders of a majority of the Registrable Securities being sold)
addressed to such selling holder of Registrable Securities and each of the
underwriters, if any, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such holders and underwriters, including without limitation the
matters referred to in Section 7(n)(i) hereof;
(iii) use its best efforts to obtain “comfort” letters and updates thereof
from the independent certified public accountants of the Company (and, if
necessary, any other certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which financial
statements and financial data is, or is required to be, included in the
Registration Statement), addressed to each selling holder of Registrable
Securities and each of the underwriters, if any, such letters to be in customary
form and covering matters of the type customarily covered in “comfort” letters
in connection with underwritten offerings; and (iv) deliver such documents
and certificates as may be requested by the holders of a majority of the
Registrable Securities being sold, the Special Counsel and the managing
underwriters, if any, to evidence the continued validity of the representations
and warranties of the Company and its subsidiaries made pursuant to
clause (i) above and to evidence compliance with any customary conditions
contained in the underwriting agreement or similar agreement entered into by the
Company. The foregoing actions will be taken in connection with each closing
under such underwriting or similar agreement as and to the extent required
thereunder.
(o) Make available for
inspection by a representative of the holders of Registrable Securities being
sold, any underwriter participating in any disposition of Registrable Securities
and any attorney or accountant retained by such selling holders or underwriter,
all financial and other records, pertinent corporate documents and properties of
the Company and its subsidiaries, and cause the officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with such Registration Statement; provided, however, that any
records, information or documents that are designated by the Company in writing
as confidential at the time of delivery of such records, information or
documents will be kept confidential by such persons unless (i) such
records, information or documents are in the public domain or otherwise publicly
available, (ii) disclosure of such records, information or documents is
required by court or administrative order or is necessary to respond to inquires
of regulatory authorities or (iii) disclosure of such records, information
or documents, in the opinion of counsel to such person, is otherwise required by
law (including, without limitation, pursuant to the requirements of the
Securities Act).
(p) Comply with all
applicable rules and regulations of the SEC and make generally available to its
security holders earning statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any
similar rule promulgated under the Securities Act) no later than 45 calendar
days after the end of any 12-month period (or 90 calendar days after the end of
any 12-month period if such period is a fiscal year) (i) commencing at the
end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts underwritten offering and
(ii) if not sold to underwriters in such an offering, commencing on the
first day of the first fiscal quarter of the Company, after the effective date
of a Registration Statement, which statements shall cover said 12-month
period.
(q) Cooperate with any
reasonable request by holders of a majority of the Registrable Securities
offered for sale pursuant to any Registration Statement, including by ensuring
participation by the executive management of the Company in road shows, so long
as such participation does not materially interfere with the operation of the
Company’s business.
The Company may
require each seller of Registrable Securities as to which any registration is
being effected to furnish to the Company such information regarding the
distribution of such Registrable Securities as the Company may, from time to
time, reasonably request in writing and the Company may exclude from such
registration the Registrable Securities of any seller who unreasonably fails to
furnish such information within a reasonable time after receiving such
request.
Each holder of
Registrable Securities will be deemed to have agreed by virtue of its
acquisition of such Registrable Securities that, upon receipt of any notice from
the Company of the occurrence of any event of the kind described in
Section 7(c)(ii), 7(c)(iii),
7(c)(v), 7(c)(vi) or
7(c)(vii) hereof, such
holder will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus (a “Black-Out”) until such
holder’s receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 7(k) hereof, or until
it is advised in writing (the “Advice”) by the Company
that the use of the applicable Prospectus may be resumed, and has received
copies of any additional or supplemental filings that are incorporated or deemed
to be incorporated by reference in such Prospectus; provided, however, that in no event
shall the aggregate number of days during which a Black-Out is effective during
any period of 24 consecutive months exceed 90. In the event the Company shall
give any such notice, the time period prescribed in Section 2, 3 or 4 hereof will be
extended by the number of days during the time period from and including the
date of the giving of such notice to and including the date when each seller of
Registrable Securities covered by such Registration Statement shall have
received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 7(k) hereof or
(y) the Advice.
The Purchaser (and
all other holders of Registrable Securities) hereby acknowledge and agree that
certain of the Company’s registration obligations set forth in Sections
2, 3, 4 and 5 hereof are
limited to the Company using its reasonable best efforts as specified in such
sections and that if the Company uses its reasonable best efforts but otherwise
fails to cause to be effective any registration statement contemplated in such
provisions or to keep such registration statement effective in accordance with
such provisions, the ability of the Purchaser (and all other holders of
Registrable Securities) to resell Registrable Securities may be limited by the
Securities Act and applicable state securities laws. This paragraph is an
acknowledgement of such reasonable best efforts limitations only and is not
intended to, and does not, modify the obligations of the Company hereunder or
modify or waive any rights of the Purchaser or any other holder of Registrable
Securities with respect to a breach by the Company of its obligations
hereunder.
8. Registration
Expenses.
(a) All Registration
Expenses will be borne by the Company whether or not any of the Registration
Statements become effective; provided, however, that all
Registration Expenses for a Demand Registration pursuant to clause (iii) of
Section 4(a), if requested by holders of Registrable Securities other than the
Purchaser, will be borne ratably by such holders of Registrable Securities
requesting such Demand Registration. “Registration
Expenses” will mean all
fees and expenses incident to the performance of or compliance with this
Agreement by the Company, including, without limitation, (i) all
registration and filing fees (including without limitation fees and expenses
(x) with respect to filings required to be made with the New York Stock
Exchange or the National Association of Securities Dealers, Inc. and (y) of
compliance with securities or “blue sky” laws (including without limitation fees
and disbursements of counsel for the underwriters or selling holders in
connection with “blue sky” qualifications of the Registrable Securities and
determination of the eligibility of the Registrable Securities for investment
under the laws of such jurisdictions as the managing underwriters, if any, or
holders of a majority of the Registrable Securities being sold may designate)),
(ii) printing expenses (including without limitation expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by the holders of a majority of the Registrable
Securities included in any Registration Statement), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for
the Company, the Special Counsel for the sellers of the Registrable Securities
and counsel for the underwriters, (v) fees and disbursements of all independent
certified public accountants referred to in Section 7(n)(iii) hereof
(including the expenses of any special audit and “comfort” letters required by
or incident to such performance), (vi) fees and expenses of any “qualified
independent underwriter” or other independent appraiser participating in an
offering pursuant to Section 3 of Schedule E to the By-laws of the
National Association of Securities Dealers, Inc., (vii) Securities Act liability
insurance if the Company so desires such insurance and (viii) fees and
expenses of all other persons retained by the Company; provided, however, that
Registration Expenses will not include fees and expenses of counsel for the
holders of Registrable Securities other than fees and expenses of the Special
Counsel and any local counsel nor shall it include underwriting discounts and
commissions relating to the offer and sale of Registrable Securities, all of
which shall be borne by such holders. In addition, the Company will pay its
internal expenses (including without limitation all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit, the fees and expenses incurred in connection with the listing
of the securities to be registered on any securities exchange on which similar
securities issued by the Company are then listed and the fees and expenses of
any person, including special experts, retained by the Company.
(b) In connection with
any registration hereunder other than a Demand Registration for which holders of
Registrable Securities other than the Purchaser are obligated to pay the
Registration Expenses, the Company will reimburse the holders of the Registrable
Securities being registered in such registration for the reasonable fees and
disbursements of not more than one counsel (the “Special
Counsel”), together with
appropriate local counsel, chosen by the holders of a majority of the
Registrable Securities being registered.
9. Indemnification.
(a) Indemnification
by the Company. The Company
will, without limitation as to time, indemnify and hold harmless, to the fullest
extent permitted by law, each holder of Registrable Securities registered
pursuant to this Agreement, the officers, directors and agents and employees of
each of them, each person who controls such holder (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act)
and the officers, directors, agents and employees of any such controlling
person, from and against all losses, claims, damages, liabilities, costs
(including without limitation the costs of investigation and attorneys’ fees)
and expenses (collectively, “Losses”), as incurred,
arising out of or based upon any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or form of
Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as the same are based
solely upon information furnished in writing to the Company by such holder
expressly for use therein; provided, however, that the Company
will not be liable to any holder of Registrable Securities to the extent that
any such Losses arise out of or are based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any preliminary
prospectus if either (A) (i) such holder failed to send or deliver a
copy of the Prospectus with or prior to the delivery of written confirmation of
the sale by such holder of a Registrable Security to the person asserting the
claim from which such Losses arise and (ii) the Prospectus would have
completely corrected such untrue statement or alleged untrue statement or such
omission or alleged omission; or (B) such untrue statement or alleged
untrue statement, omission or alleged omission is completely corrected in an
amendment or supplement to the Prospectus previously furnished by or on behalf
of the Company with copies of the Prospectus as so amended or supplemented, and
such holder thereafter fails to deliver such Prospectus as so amended or
supplemented prior to or concurrently with the sale of a Registrable Security to
the person asserting the claim from which such Losses arise.
The rights of any
holder of Registrable Securities hereunder will not be exclusive of the rights
of any holder of Registrable Securities under any other agreement or instrument
of any holder of Registrable Securities to which the Company is a party. Nothing
in such other agreement or instrument will be interpreted as limiting or
otherwise adversely affecting a holder of Registrable Securities hereunder and
nothing in this Agreement will be interpreted as limiting or otherwise adversely
affecting the holder of Registrable Securities’ rights under any such other
agreement or instrument; provided, however, that no
Indemnified Party will be entitled hereunder to recover more than its
indemnified Losses.
(b) Indemnification
by Holders of Registrable Securities. In connection
with any Registration Statement in which a holder of Registrable Securities is
participating, such holder of Registrable Securities will furnish to the Company
in writing such information as the Company reasonably requests for use in
connection with any Registration Statement or Prospectus and will severally
indemnify, to the fullest extent permitted by law, the Company, its directors
and officers, agents and employees, each person who controls the Company (within
the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act), and the directors, officers, agents or employees of such
controlling persons, from and against all Losses arising out of or based upon
any untrue statement of a material fact contained in any Registration Statement,
Prospectus or preliminary prospectus or arising out of or based upon any
omission of 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 omission is contained in any information so
furnished in writing by such holder to the Company expressly for use in such
Registration Statement or Prospectus and was relied upon by the Company in the
preparation of such Registration Statement, Prospectus or preliminary
prospectus. In no event will the liability of any selling holder of Registrable
Securities hereunder be greater in amount than the dollar amount of the proceeds
(net of payment of all expenses and underwriter’s discounts and commissions)
received by such holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation.
(c) Conduct of
Indemnification Proceedings. If any person
shall become entitled to indemnity hereunder (an “indemnified
party”), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the “indemnifying
party”) of any claim or
of the commencement of any action or proceeding with respect to which such
indemnified party seeks indemnification or contribution pursuant hereto;
provided, however, that the failure
to so notify the indemnifying party will not relieve the indemnifying party from
any obligation or liability except to the extent that the indemnifying party has
been prejudiced materially by such failure. All fees and expenses (including any
fees and expenses incurred in connection with investigating or preparing to
defend such action or proceeding) will be paid to the indemnified party, as
incurred, within five calendar days of written notice thereof to the
indemnifying party (regardless of whether it is ultimately determined that an
indemnified party is not entitled to indemnification hereunder). The
indemnifying party will not consent to entry of any judgment or enter into any
settlement or otherwise seek to terminate any action or proceeding in which any
indemnified party is or could be a party and as to which indemnification or
contribution could be sought by such indemnified party under this
Section 9, unless such
judgment, settlement or other termination includes as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release, in form and substance satisfactory to the indemnified party, from all
liability in respect of such claim or litigation for which such indemnified
party would be entitled to indemnification hereunder.
(d) Contribution. If the
indemnification provided for in this Section 9 is unavailable to
an indemnified party under Section 9(a) or 9(b) hereof in respect
of any Losses or is insufficient to hold such indemnified party harmless, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, will, jointly and severally, contribute to the amount paid or payable by
such indemnified party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or
indemnifying parties, on the one hand, and such indemnified party, on the other
hand, in connection with the actions, statements or omissions that resulted in
such Losses as well as any other relevant equitable considerations. The relative
fault of such indemnifying party or indemnifying parties, on the one hand, and
such indemnified party, on the other hand, will 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 of a
material fact, has been taken or made by, or related 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, statement or omission. The amount paid or payable by a party as a result
of any Losses will be deemed to include any legal or other fees or expenses
incurred by such party in connection with any action or proceeding.
The parties hereto
agree that it would not be just and equitable if contribution pursuant to this
Section 9(d) were determined
by pro rata allocation or by
any other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provision of this Section 9(d), an indemnifying
party that is a selling holder of Registrable Securities will not be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities sold by such indemnifying party and distributed to
the public exceeds the amount of any damages which such indemnifying party has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
The indemnity,
contribution and expense reimbursement obligations of the Company hereunder will
be in addition to any liability the Company may otherwise have hereunder, under
any other agreement or otherwise. The provisions of this
Section 9 will survive so
long as Registrable Securities remain outstanding, notwithstanding any transfer
of the Registrable Securities by any holder thereof or any termination of this
Agreement.
10. Rules 144
and 144A. The Company will
file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner, and will cooperate with any holder of
Registrable Securities (including without limitation by making such
representations as any such holder 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 limitations of the
exemptions provided by Rules 144 and 144A (including, without limitation,
the requirements of Rule 144A(d)(4)). Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such filing requirements.
Notwithstanding the foregoing, nothing in this Section 10 will be deemed to
require the Company to register any of its securities under any section of the
Exchange Act.
11. Underwritten
Registrations. If any of the Registrable Securities are to be sold in an
underwritten offering pursuant to Section 2, 3 or 4, the investment
banker or investment bankers and manager or managers that will manage the
offering will be selected by (a) the Purchaser or its designee in the case of
Section 2 or (b) the holders of Registrable Securities that gave the notice
demanding such registration or offering in the case of Section 3 or 4; provided,
that such investment banker or manager shall be reasonably satisfactory to the
Company. If any Piggyback Registration pursuant to Section 5 is an
underwritten offering, the Company will have the right to select the investment
banker or investment bankers and managers to administer the
offering.
12. Miscellaneous.
(a) Remedies. In the event of
a breach by the Company of its obligations under this Agreement, each holder of
Registrable Securities, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of any of the provisions of this Agreement and hereby further
agrees that, in the event of any action for specific performance in respect of
such breach, it will waive the defense that a remedy at law would be
adequate.
(b) No Inconsistent
Agreements. The Company has
not, as of the date hereof, and will not, on or after the date hereof, enter
into any agreement with respect to its securities which is inconsistent with the
rights granted to the holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. This Agreement will be deemed to
be an independent agreement and no limitation or restriction contained in this
Agreement will be deemed to conflict with, limit or restrict the rights of
Purchaser under this Agreement.
(c) Amendments and
Waivers. The provisions
of this Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company has obtained the
written consent of holders of at least a majority of the then-outstanding Senior
Preferred. Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other holders of Registrable Securities may be given by
holders of at least a majority of the Registrable Securities being sold by such
holders; provided, however, that the
provisions of this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the immediately preceding
sentence.
(d) Notices. All notices and
other communications provided for or permitted hereunder shall be made in
writing and will be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by fax or (iii) one business day after
being deposited with a reputable next-day courier, postage prepaid, to the
parties as follows:
(x) if to the Company,
initially at 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000-0000, Fax
Number (000) 000-0000, Attention: Xxx X. Xxxxxxxxxxx, General Counsel, and
thereafter at such other address, notice of which is given to the holders of
Registrable Securities in accordance with the provisions of this
Section 12(d);
(y) if to Purchaser,
initially at 0000 XxXxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Fax Number
(000) 000-0000, Attention: Xxxxxx X. XxXxxxxx, and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 12(d); and
(z) if to any other
holder of Registrable Securities, at the most current address given by such
holder to the Company in accordance with the provisions of this
Section 12(d).
(e) Owner of
Registrable Securities. The Company will
maintain, or will cause its registrar and transfer agent to maintain, a stock
book with respect to the Series B Preferred, the Common Stock and the
Warrant Shares, in which all transfers of Registrable Securities of which the
Company has received notice will be recorded. The Company may deem and treat the
person in whose name Registrable Securities are registered in the stock book of
the Company as the owner thereof for all purposes, including without limitation
the giving of notices under this Agreement.
(f) Successors and
Assigns. This Agreement
will inure to the benefit of and be binding upon the successors and permitted
assigns of each of the parties and will inure to the benefit of each holder of
any Registrable Securities. The Company may not assign its rights or obligations
hereunder without the prior written consent of each holder of any Registrable
Securities. The holders of the Registrable Securities may assign the rights and
obligations under this Agreement to any subsequent holder of such Registrable
Securities (that is a Qualified Transferee). Notwithstanding the foregoing, no
Qualified Transferee will have any of the rights granted under this Agreement
(i) until such transferee shall have acknowledged its rights and
obligations hereunder by a signed written statement of such transferee’s
acceptance of such rights and obligations or (ii) if the transferor
notifies the Company in writing on or prior to such transfer that the transferee
shall not have such rights in which case such transferee shall not be deemed to
be a Qualified Transferee for purposes of this Agreement.
(g) Counterparts. This Agreement
may be executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed will be deemed to be an
original and all of which taken together will constitute one and the same
instrument.
(h) Headings. The headings in
this Agreement are for convenience of reference only and will not limit or
otherwise affect the meaning hereof.
(i) Governing
Law. This Agreement
will be governed by and construed in accordance with the laws of the State of
Utah, as applied to contracts made and performed within the State of Utah,
without regard to principles of conflict laws.
(j) Severability. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions set forth herein will remain
in full force and effect and will in no way be affected, impaired or
invalidated, and the parties hereto will use their best efforts to find and
employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such which may be hereafter declared invalid, void or
unenforceable.
(k) Entire
Agreement. This Agreement
is intended by the parties as a final expression of their agreement and is
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the registration rights
granted by the Company with respect to the Registrable Securities. This
Agreement supersedes all prior agreements and understandings among the parties
with respect to such registration rights.
(l) Attorneys’
Fees. In any action or
proceeding brought to enforce any provision of this Agreement, or where any
provision hereof is validly asserted as a defense, the prevailing party, as
determined by the court, will be entitled to recover reasonable attorneys’ fees
in addition to any other available remedy.
[Signature page
follows.]
IN WITNESS
WHEREOF, the parties have executed this Amended and Restated Registration Rights
Agreement as of the date first written above.
| XXXXXXXX XXXXX CO. | ||
|
By: |
/s/ XXXXXX X. XXXXXXX | |
|
Name: |
Xxxxxx X. Xxxxxxx | |
|
Title: |
President and Chief Executive Officer |
| KNOWLEDGE CAPITAL INVESTMENT GROUP | ||
|
By: |
Inspiration Investments Partners III, L.P. | |
|
Its: |
Manager | |
|
By: |
Inspiration Investments GenPar III, L.P. | |
|
Its: |
General Partner | |
|
By: |
Hampstead Associates, Inc. | |
|
Its: |
Managing General Partner | |
|
By: |
/s/ XXXXXX X. XXXXXXXX | |
|
Name: |
Xxxxxx X. XxXxxxxx | |
|
Title: |
President |
