Exhibit 99.4
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
among
XXXXXXXXX.XXX INCORPORATED,
PRIME PRO GROUP LIMITED
and
FORTHCOMING ERA LIMITED
Dated as of February 15, 2001
TABLE OF CONTENTS
Page
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1. Definitions............................................................1
2. General; Securities Subject to this Agreement..........................4
(a) Grant of Rights...................................................4
(b) Registrable Securities............................................4
(c) Holders of Registrable Securities.................................5
3. Demand Registration....................................................5
(a) Request for Demand Registration...................................5
(b) Incidental or "Piggy-Back" Rights with Respect to
a Demand Registration.......................................5
(c) Effective Demand Registration.....................................6
(d) Expenses..........................................................6
(e) Underwriting Procedures...........................................6
(f) Selection of Underwriters.........................................7
4. Incidental or "Piggy-Back" Registration................................7
(a) Request for Incidental Registration...............................7
(b) Expenses..........................................................8
5. Form S-3 Registration..................................................8
(a) Request for a Form S-3 Registration...............................8
(b) Form S-3 Underwriting Procedures..................................8
(e) Limitations on Form S-3 Registrations............................10
(f) Expenses.........................................................10
(g) No Demand Registration...........................................10
6. Holdback Agreements...................................................10
(a) Restrictions on Public Sale by Designated Holders................10
(b) Restrictions on Public Sale by the Company.......................11
7. Registration Procedures...............................................11
(a) Obligations of the Company.......................................11
(b) Seller Information...............................................14
(c) Notice to Discontinue............................................14
(d) Registration Expenses............................................15
8. Indemnification Contribution..............................................15
(a) Indemnification by the Company...................................15
(b) Indemnification by Designated Holders............................15
(c) Conduct of Indemnification Proceedings...........................16
(d) Contribution.....................................................17
9. Rule 144..................................................................17
10. Miscellaneous............................................................17
(a) Recapitalizations, Exchanges, etc................................18
(b) No Inconsistent Agreements.......................................18
(c) Remedies.........................................................18
(d) Amendments and Waivers...........................................18
(e) Notices..........................................................18
(f) Successors and Assigns; Third-Party Beneficiaries................20
(g) Counterparts.....................................................20
(h) Headings.........................................................21
(i) Governing Law....................................................21
(j) Severability.....................................................21
(k) Entire Agreement.................................................21
(l) Further Assurances...............................................21
(m) Other Agreements.................................................21
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of February 15, 2001, (this
"Agreement"), among xxxxxxxxx.xxx Incorporated, a Delaware corporation (the
"Company"), Prime Pro Group Limited, a British Virgin Islands corporation
("PPGL") and wholly owned subsidiary of Xxxxxx Kong (Holdings) Limited, a Hong
Kong corporation ("CKH"), and Forthcoming Era Limited, a British Virgin Islands
corporation ("FEL" and together with PPGL, the "Investors") and wholly owned
subsidiary of Xxxxxxxxx Whampoa Limited, a Hong Kong corporation ("HWL").
WHEREAS, the Company intends to issue and sell to PPGL and FEL
shares of common stock, par value $.008 per share, of the Company (the "Common
Stock");
WHEREAS, in connection with the issuance and sale of the shares of
Common Stock, the Company, PPGL and FEL desire to enter into this Agreement, all
in accordance with the terms and conditions set forth herein; and
WHEREAS, the Company does not intend for this Agreement to be
inconsistent with, or prior in right to, the 1998 Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. As used in this Agreement the following terms have
the meanings indicated:
"Affiliate" shall mean any Person who is an "affiliate" as
defined in Rule 12b-2 of the General Rules and Regulations under the Exchange
Act.
"Affiliate Transferee" means, as to either of the Investors or
any of their Affiliate Transferees, (i) the other Investor, (ii) any wholly
owned subsidiary of HWL and (iii) any wholly owned subsidiary of CKH.
"Agreement" has the meaning set forth in the recitals to this
Agreement.
"Approved Underwriter" has the meaning set forth in Section
3(f) of this Agreement.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in the State of New York are authorized or
required by law or executive order to close.
"Closing Price" means, with respect to the Registrable
Securities, as of the date of determination, (a) the closing price per share of
a Registrable Security on such date published in the Wall Street Journal or, if
no such closing price on such date is published in the Wall Street Journal, the
average of the closing bid and asked prices on such date, as officially reported
on the principal national securities exchange (including, without limitation,
The Nasdaq Stock Market, Inc.) on which the Registrable Securities are then
listed or admitted to trading; or (b) if the Registrable Securities are not then
listed or admitted to trading on any national securities exchange but are
approved for quotation on The Nasdaq Stock Market or another automated quotation
system, the last trading price per share of a Registrable Security on such date;
or (c) if there shall have been no trading on such date or if the Registrable
Securities are not so designated, the average of the reported closing bid and
asked prices of the Registrable Securities on such date as shown by The Nasdaq
Stock Market, Inc. (or its successor) and reported by any member firm of the New
York Stock Exchange, Inc. selected by the Company; or (d) if none of (a), (b) or
(c) is applicable, a market price per share reasonably determined in good faith
by the Company's Board of Directors or, if such determination is not reasonably
satisfactory to the Designated Holder for whom such determination is being made,
by a nationally recognized investment banking firm selected by the Company and
such Designated Holder, the expenses for which shall be borne equally by the
Company and such Designated Holder.
"Common Stock" has the meaning set forth in the recitals to
this Agreement.
"Company" has the meaning set forth in the recitals to this
Agreement.
"Company Underwriter" has the meaning set forth in Section
4(a) of this Agreement.
"Demand Registration" has the meaning set forth in section
3(a) of this Agreement.
"Demand Stockholders" means each stockholder or group of
affiliated stockholders who (i) agree to become subject to this Agreement as a
Demand Stockholder by executing and delivering the instrument attached hereto as
Exhibit A and (ii) are approved as a Demand Stockholder by the Board of
Directors and the Investors and their Affiliate Transferees; provided, however,
that the addition of Delta Air Lines, Inc. as a Demand Stockholder shall not
require the approval of the Investors or their Affiliate Transferees and the
addition of any purchaser of Registrable Securities referred to in clause (ii)
of Section 10(f) will not require the approval of the Board of Directors.
"Designated Holder" means each of PPGL, FEL, the Demand
Stockholders and the Piggy-Back Stockholders and any transferee of any of them
to whom Registrable Securities have been transferred in accordance with the
provisions of Section 10(f) of this Agreement, other than a transferee to whom
Registrable Securities have been transferred pursuant to a Registration
Statement under the Securities Act or Rule 144 or Regulation S under the
Securities Act (or any successor rule thereto).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Holders' Counsel" has the meaning set forth in Section
7(a)(i) of this Agreement.
"Incidental Registration" has the meaning set forth in Section
4(a) of this Agreement.
"Indemnified Party" has the meaning set forth in Section 8(c)
of this Agreement.
"Indemnifying Party" has the meaning set forth in Section 8(c)
of this Agreement.
"Initiating Holders" has the meaning set forth in Section 3(a)
of this Agreement.
"Inspector" has the meaning set forth in Section 7(a)(vii) of
this Agreement.
"Investors" has the meaning set forth in the recitals to this
Agreement.
"Market Price" means, on any date of determination, the
average of the daily Closing Price of the Registrable Securities for the
immediately preceding 30 days on which the national securities exchange or
automated quotation system on which the Registrable Securities are listed or
quoted is open for trading.
"NASD" has the meaning set forth in Section 7(a)(xiii) of this
Agreement.
"1998 Agreement" means the Amended and Restated Registration
Rights Agreement dated as of December 8, 1998, among the Company and the
stockholders of the Company that are named therein or that have joined therein
in accordance with its terms and that continue to hold Registrable Securities as
defined therein.
"Person" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, limited liability company, government (or an
agency or political subdivision thereof) or other entity of any kind, and shall
include any successor (by merger or otherwise) of such entity.
"Piggy-Back Stockholders" means each stockholder or group of
affiliated stockholders who (i) agree to become subject to this Agreement as a
Piggy-Back Stockholder by executing and delivering the instrument attached
hereto as Exhibit B and (ii) are approved as a Piggy-Back Stockholder by the
Board of Directors.
"Preferred Stock" means all of the authorized preferred stock
of the Company.
"Records" has the meaning set forth in Section 7(a)(vii) of
this Agreement.
"Registrable Securities" means each of the following: (a) any
and all shares of Common Stock acquired by the Designated Holders from the
Company or an Affiliate of the Company, (b) any and all shares of Common Stock
the sale of which is restricted under Rule 144 because of the status of the
Designated Holder as an Affiliate of the Company and (c) any and all shares of
Common Stock issued or issuable to any of the Designated Holders with respect to
the Registrable Securities by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise and any shares of Common Stock or voting
common stock issuable upon conversion, exercise or exchange thereof. Registrable
Securities will cease to be Registrable Securities in accordance with Section
2(b).
"Registration Expenses" has the meaning set forth in Section
7(d) of this Agreement.
"Registration Statement" means a Registration Statement filed
pursuant to the Securities Act.
"Rule 144" has the meaning set forth in Section 9 of this
Agreement.
"S-3 Initiating Holders" has the meaning set forth in Section
5(a) of this Agreement.
"S-3 Registration" has the meaning set forth in Section 5(a)
of this Agreement.
"SEC" means the Securities and Exchange Commission, or any
similar agency then having jurisdiction to enforce the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Series B Preferred Stock" means the Series B Redeemable
Preferred Sock, par value $.01 per share, of the Company.
"Shelf Initiating Holders" has the meaning set forth in
Section 5(c) of this Agreement.
"Shelf Registration" means a registration of a delayed or
continuous offering of Registrable Securities under the Securities Act pursuant
to Rule 415 thereunder or any successor provision.
"Stock Purchase Agreement" means the Stock Purchase Agreement
dated as of February 15, 2001, among the Company, PPGL and FEL.
2. General; Securities Subject to this Agreement.
(a) Grant of Rights. The Company hereby grants registration rights
to PPGL, FEL, the Demand Stockholders and the Piggy-Back Stockholders upon the
terms and subject to the conditions set forth in this Agreement.
(b) Registrable Securities. For the purposes of this Agreement,
Registrable Securities will cease to be Registrable Securities when (i) a
Registration Statement covering such Registrable Securities has been declared
effective under the Securities Act by the SEC and such Registrable Securities
have been disposed of pursuant to such effective Registration Statement, (ii)
such Registrable Securities shall have been distributed pursuant to Rule 144 or
(iii) as to any Designated Holder, the entire amount of Registrable Securities
owned by such Designated Holder, in the opinion of counsel satisfactory to the
Company and the Designated Holder, each in their reasonable judgment, may be
distributed to the public without any limitation as to volume pursuant to
paragraph (e) of Rule 144 (without giving effect to paragraph (k) thereof) (or
any successor provision then in effect) under the Securities Act or (iv) the
Registrable Securities are proposed to be sold or distributed by a Person not
entitled to the registration rights granted by this Agreement.
(c) Holders of Registrable Securities. A Person is deemed to be a
holder of Registrable Securities whenever such Person owns of record Registrable
Securities, or holds as options to purchase, or a security convertible into or
exercisable or exchangeable for, Registrable Securities whether or not such
acquisition or conversion has actually been effected. If the Company receives
conflicting instructions, notices or elections from two or more Persons with
respect to the same Registrable Securities, the Company may act upon the basis
of the instructions, notice or election received from the registered owner of
such Registrable Securities. Registrable Securities issuable upon exercise of an
option or upon conversion of another security shall be deemed outstanding for
the purposes of this Agreement.
3. Demand Registration.
(a) Request for Demand Registration. At any time after the date of
this Agreement, each of (i) PPGL, (ii) FEL, or (iii) one or more of the Demand
Stockholders, acting through its representative identified on the instrument
executed by it in the form attached hereto as Exhibit A or such representative's
written designee (the "Initiating Holders"), may make a written request to the
Company to register, under the Securities Act on any form for which the Company
then qualifies and deems appropriate (a "Demand Registration"), the number of
Registrable Securities stated in such request; provided, however, that the
Company shall not be obligated to effect more than one Demand Registration for
PPGL, one Demand Registration for the FEL and one Demand Registration for each
of the Demand Stockholders pursuant to this Section 3. For purposes of the
preceding sentence, two or more Registration Statements filed in response to one
demand shall be counted as one Registration Statement. If at the time of any
request to register Registrable Securities pursuant to this Section 3(a), the
Company is engaged in, or has fixed plans to engage in within 90 days of the
time of such request, a registered public offering or is engaged in or has fixed
plans to engage in any other activity which, in the good faith determination of
the Board of Directors of the Company, would be adversely affected in any
material respect by the requested registration, then the Company may at its
option direct that such request be delayed for a reasonable period not in excess
of three months from the effective date of such offering or the date of
completion of such other material activity, as the case may be; provided,
however, that the Company shall not exercise such right to delay a request more
than three times and for more than a total of 90 days in any one-year period. In
addition, the Company shall not be required to effect any registration within 90
days after the effective date of any other Registration Statement of the
Company. Each request for a Demand Registration by the Initiating Holders shall
state the amount of the Registrable Securities proposed to be sold and the
intended method of disposition thereof. Upon a request for a Demand
Registration, the Company shall promptly take such steps as are necessary or
appropriate to prepare for the registration of the Registrable Securities to be
registered.
(b) Incidental or "Piggy-Back" Rights with Respect to a Demand
Registration. Each of the Designated Holders (other than Initiating Holders
which have requested the relevant registration under Section 3(a)) may offer its
Registrable Securities under any Demand Registration pursuant to this Section
3(b). Within 10 days after the receipt of a request far a Demand Registration
from an Initiating Holder, the Company shall (i) give written notice thereof to
all of the Designated Holders (other than Initiating Holders which have
requested such registration under Section 3(a)) and (ii) subject to Section
3(e), include in such registration all of the Registrable Securities held by
such Designated Holders from whom the Company has received a written request for
inclusion therein within 10 days of the receipt by such Designated Holders of
such written notice referred to in clause (i) above. Each such request by such
Designated Holders shall specify the number of Registrable Securities proposed
to be registered and the intended method of disposition thereof. The failure of
any Designated Holder to respond within such 10-day period referred to in clause
(ii) above shall be deemed to be a waiver of such Designated Holder's rights
under this Section 3 with respect to such Demand Registration; provided ,
however, that any Designated Holder may waive its rights under this Section 3
prior to the expiration of such 10-day period by giving written notice to the
Company, with a copy to the Initiating Holders. If a Designated Holder sends the
Company a written request for inclusion of part or all of such Designated
Holder's Registrable Securities in a registration, such Designated Holder shall
not be entitled to withdraw or revoke such request without the prior written
consent of the Company in its sole discretion unless, as a result of facts or
circumstances arising after the date on which such request was made relating to
the Company or to market conditions, such Designated Holder reasonably
determines that participation in such registration would have a material adverse
effect on such Designated Holder.
(c) Effective Demand Registration. The Company shall use its
reasonable best efforts to cause any such Demand Registration to become and
remain effective not later than 90 days after it receives a request under
Section 3(a). A registration shall not constitute a Demand Registration until it
has become effective and remains continuously effective for the lesser of (i)
the period during which all Registrable Securities registered in the Demand
Registration are sold and (ii) 90 days; provided, however, that a registration
shall not constitute a Demand Registration if (x) after such Demand Registration
has become effective, such registration or the related offer, sale or
distribution of Registrable Securities thereunder is interfered with by any stop
order, injunction or other order or requirement of the SEC or other
governmental, agency or court for any reason not attributable to the Initiating
Holders and such interference is not thereafter eliminated or (y) the conditions
specified in the underwriting agreement, if any, entered into in connection with
such Demand Registration are not satisfied or waived, other than by reason of a
failure by any Designated Holder.
(d) Expenses. In any registration initiated as a Demand
Registration, the Company shall pay all Registration expenses in connection
therewith, whether or not such Demand Registration becomes effective.
(e) Underwriting Procedures. If the Company or the Initiating
Holders holding a majority of the Registrable Securities held by all of the
Initiating Holders to which the requested Demand Registration relates so elect,
the Company shall use reasonable best efforts to cause such Demand Registration
to be in the form of a firm commitment underwritten offering and the managing
underwriter or underwriters selected for such offering shall be the Approved
Underwriter selected in accordance with Section 3(f). In connection with any
Demand Registration under this Section 3 involving an underwritten offering,
none of the Registrable Securities held by any Designated Holder making a
request for inclusion of such Registrable Securities pursuant to Section 3(b)
shall be included in such underwritten offering unless such Designated Holder
accepts the terms of the offering as agreed upon by the Company, the Initiating
Holders and the Approved Underwriter. If the Approved Underwriter advises the
Company in writing that in its opinion the aggregate amount of such Registrable
Securities requested to be included in such offering is sufficiently large to
have a material adverse effect on the success of such offering, then the Company
shall include in such registration only the aggregate amount of Registrable
Securities that in the opinion of the Approved Underwriter may be sold without
any such material adverse effect and shall reduce the amount of Registrable
Securities to be included in such registration, first as to the Company and,
second as to the Initiating Holders and any other Designated Holders who
requested inclusion of their Registrable Securities pursuant to Section 3(b),
pro rata based on the number of Registrable Securities owned by each such
Initiating Holder and Designated Holder.
(f) Selection of Underwriters. If any Demand Registration or S-3
Registration, as the case may be, of Registrable Securities is in the form of an
underwritten offering, the Company shall select and obtain an investment banking
firm of national reputation to act as the managing underwriter of the offering
(the "Approved Underwriter"); provided, however, that the Approved Underwriter
shall, in any case, also be approved by the Initiating Holders or S-3 Initiating
Holders, as the case may be, such approval not to be unreasonably withheld.
4. Incidental or "Piggy-Back" Registration.
(a) Request for Incidental Registration. At any time after the date
of this Agreement, if the Company proposes to file a Registration Statement
under the Securities Act with respect to an offering by the Company for its own
account (other than a Registration Statement on Form S-4 or S-8 or any successor
thereto), then the Company shall give written notice of such proposed filing to
each of the Designated Holders (in addition to any notice that the Company may
be required to provide to other holders of securities pursuant to other
registration rights agreements, including the 1998 Agreement), at least 30 days
before the anticipated filing date, and such notice shall describe the proposed
registration and distribution and offer such Designated Holders the opportunity
to register the number of Registrable Securities as each such holder may request
(an "Incidental Registration"). The Company shall, and shall use its best
efforts (within 10 days of the notice provided for in the preceding sentence) to
cause the managing underwriter or underwriters of a proposed underwritten
offering (the "Company Underwriter") to permit each of the Designated Holders
who have requested in writing to participate in the Incidental Registration to
include its Registrable Securities in such offering on the same terms and
conditions as the securities of the Company included therein. In connection with
any Incidental Registration under this Section 4(a) involving an underwritten
offering, the Company shall not be required to include any Registrable
Securities in such underwritten offering unless the holders thereof accept the
terms of the underwritten offering as agreed upon between the Company and the
Company Underwriter, and then only in such quantity as will not, in the opinion
of the Company Underwriter, jeopardize the success of the offering by the
Company. If in the written opinion of the Company Underwriter the registration
of all or part of the Registrable Securities which the Designated Holders have
requested to be included would materially adversely affect the success of such
offering, then the Company shall be required to include in such Incidental
Registration, to the extent of the amount that the Company Underwriter believes
may be sold without causing such adverse effect, first, all of the securities to
be offered for the account of the Company; second, all of the securities
eligible to be offered by the parties to the 1998 Agreement; third, the
Registrable Securities to be offered for the account of the Designated Holders
pursuant to this Section 4, pro rata based on the number of Registrable
Securities owned by each such Designated Holder; and fourth, any other
securities requested to be included in such underwritten offering.
(b) Expenses. The Company shall bear all Registration Expenses in
connection with any Incidental Registration pursuant to this Section 4, whether
or not such Incidental Registration becomes effective.
5. Form S-3 Registration.
(a) Request for a Form S-3 Registration. At any time when the
Company is eligible for use of Form S-3, in the event that the Company shall
receive from (i) PPGL, (ii) FEL or (iii) one or more of the Demand Stockholders,
acting through its representative identified on the instrument executed by it in
the form attached hereto as Exhibit A or such representative's written designee
(the "S-3 Initiating Holders"), a written request that the Company register,
under the Securities Act, on Form S-3 (or any successor form then in effect) (an
"S-3 Registration"), all or a portion of the Registrable Securities owned by
such S-3 Initiating Holders, the Company shall give written notice of such
request to all of the Designated Holders (other than S-3 Initiating Holders
which have requested an S-3 Registration under this Section 5(a)) at least 30
days before the anticipated filing date of such Form S-3, and such notice shall
describe the proposed registration and offer such Designated Holders the
opportunity to register the number of Registrable Securities as each such
Designated Holder may request in writing to the Company, given within 15 days
after their receipt from the Company of the written notice of such registration.
The Company shall (i) take such steps as are necessary or appropriate to prepare
for the registration of the Registrable Securities to be registered and (ii)
subject to Section 5(b), use reasonable best efforts to (x) cause such
registration pursuant to this Section 5(a) to become and remain effective as
soon as practicable, but in any event not later than 90 days after it receives a
request therefor and (y) include in such offering the Registrable, Securities of
the Designated Holders (other than S-3 Initiating Holders which have requested
an S-3 Registration under this Section 5(a)) who have requested in writing to
participate in such registration on the same terms and conditions as the
Registrable Securities of the S-3 Initiating Holders included therein.
(b) Form S-3 Underwriting Procedures. If the Company or the S-3
Initiating Holders holding a majority of the Registrable Securities held by all
of the S-3 Initiating Holders to which the requested S-3 Registration relates so
elect, the Company shall use reasonable best efforts to cause such S-3
Registration pursuant to this Section 5 to be in the form of a firm commitment
underwritten offering and the managing underwriter or underwriters selected for
such offering shall be the Approved Underwriter selected in accordance with
Section 3(f). In connection with any S-3 Registration under Section 5(a)
involving an underwritten offering, the Company shall not be required to include
any Registrable Securities in such underwritten offering unless the Designated
Holders thereof accept the terms of the underwritten offering as agreed upon
between the Company, the Approved Underwriter and the S-3 Initiating Holders. If
in the written opinion of the Approved Underwriter the registration of all or
part of the Registrable Securities which the S-3 Initiating Holders and the
other Designated Holders have requested to be included would materially
adversely affect the success of such public offering, then the Company shall be
required to include in the underwritten offering, to the extent of the amount
that the Approved Underwriter believes may be sold without causing such adverse
effect, first, the Registrable Securities to be offered for the account of the
S-3 Initiating Holders and the other Designated Holders who requested inclusion
of their Registrable Securities pursuant to Section 5(a), pro rata based on the
number of Registrable Securities owned by each such S-3 Initiating Holder and
Designated Holder and second, any other securities requested to be included in
such underwritten offering.
(c) Request for a Shelf Registration. At any time after the date of
this Agreement, (i) PPGL, (ii) FEL or (iii) one or more of the Demand
Stockholders, acting through its representative identified on the instrument
executed by it in the form attached hereto as Exhibit A or such representative's
written designee (the "Shelf Initiating Holders") shall be entitled to request
the Company to file and maintain a Shelf Registration with the SEC under which
all or any portion of the shares of Common Stock that is owned by it at the time
of such request may be resold at any time and from time to time until such time
as all such Common Stock may be sold by the Shelf Initiating Holders in a single
transaction pursuant to Rule 144 under the Securities Act in accordance with the
volume limitations specified in paragraph (e) thereof (and without giving effect
to paragraph (k) thereof). The Company shall use commercially reasonable efforts
to cause any such Shelf Registration to become effective and to include in such
Shelf Registration the Registrable Securities of the Designated Holders who have
requested in writing to participate in such registration on the same terms and
conditions. If the Company shall propose to file a registration statement to
effect a Shelf Registration for the offer and sale of Common Stock of any
stockholder of the Company, the Company shall notify the Designated Holders and
the Designated Holders shall have the right to require the registration of
Registrable Securities under such Shelf Registration in such amount as they may
specify in writing to the Company within 15 days after receiving notice of such
proposed Shelf Registration. At any time when a Shelf Registration is effective
and covers sufficient shares of Common Stock to provide for the registration of
a contemplated offering by a Designated Holder, such Designated Holder will not
have the right to request a Demand Registration or S-3 Registration; provided,
however, that such Designated Holder will still have the right to join in
registered underwritten offerings under Section 3(b) and Section 4, subject to
the potential limitation of the amount of Common Stock such Designated Holder
may offer and sell as provided in such Sections. The Company shall not be
required to effect a requested registration as a Shelf Registration if the Board
of Directors of the Company shall have determined in good faith that
registration in such form at the time of the request would have a material
adverse effect on the Company (having regard for the interests of stockholders
generally) which would not be suffered if the registration were not carried out
as a Shelf Registration; provided, however, that the Company's right to defer a
Shelf Registration will be exercisable on one occasion only for a period of up
to 90 days. If the Board of Directors of the Company shall have made such a
determination with respect to such Shelf Registration, then the Company will be
required to proceed with a Demand Registration or S-3 Registration which is not
a Shelf Registration in accordance with Section 3(a) or 5(a), as the case may
be, and the Designated Holders may not request that any subsequent Demand
Registration or S-3 Registration be a Shelf Registration until at least three
months after such determination.
(d) Company's Election to File a Shelf Registration. The Designated
Holders agree that the Company may, at any time after the date of this
Agreement, at the Company's option, file a Shelf Registration with the SEC in
order to facilitate sales of Common Stock by the Designated Holders. In the
event that such a Shelf Registration is declared effective by the SEC, the
Company may comply with any request for registration under this Agreement by
providing an appropriate prospectus supplement under such Shelf Registration.
The terms and conditions of this Agreement, including without limitation, the
provisions of Section 5(e), shall apply to the use and availability of such
Shelf Registration as if it were the filing of a registration statement.
(e) Limitations on Form S-3 Registrations. If at the time of any
request to register Registrable Securities pursuant to Section 5(a) or any
utilization of a Shelf Registration pursuant to Section 5(c) or 5(d), the
Company is engaged in, or has fixed plans to engage in within 90 days of the
time of such request, a registered public offering or is engaged or has fixed
plans to engage in any other activity which, in the good faith determination of
the Board of Directors of the Company, would be adversely affected in any
material respect by the requested S-3 Registration then the Company may at its
option direct that such request or continued availability be delayed for a
reasonable period not in excess of three months from the effective date of such
offering or the date of completion of such other material activity, as the case
may be; provided, however, that the Company shall not exercise such right to
delay a request more than three times and for more than a total of 90 days in
any one-year period. In addition, the Company shall not be required to effect
any registration pursuant to Section 5(a) (i) within three months after the
effective date of any other Registration Statement of the Company (other than on
Form S-4 or S-8), (ii) if within the 12-month period preceding the date of such
request, the Company has effected two registrations on Form S-3 pursuant to
Section 5(a) and all of the Registrable Securities registered therein have been
sold, (iii) if Form S-3 is not available for such offering by the S-3 Initiating
Holders or (iv) if the S-3 Initiating Holders, together with the Designated
Holders (other than S-3 Initiating Holders which have requested an S-3
Registration under Section 5(a)) registering Registrable Securities in such
registration, propose to sell their Registrable Securities at an aggregate price
(calculated based upon the Market Price of the Registrable Securities on the
date of filing of the Xxxx, X-0 with respect to such Registrable Securities) to
the public of less than $2,500,000.
(f) Expenses. In connection with any registration pursuant to this
Section 5, the Company shall pay all Registration Expenses, whether or not such
registration becomes effective.
(g) No Demand Registration. No registration requested by any
Designated Holder pursuant to this Section 5 shall be deemed a Demand
Registration pursuant to Section 3.
6. Holdback Agreements.
(a) Restrictions on Public Sale by Designated Holders. If and to the
extent requested by the Company, the Initiating Holders or the S-3 Initiating
Holders, as the ease may be, in the case of a non-underwritten public offering
or if and to the extent requested by the Approved Underwriter or the Company
Underwriter, as the case may be, in the case of an underwritten public offering,
each Designated Holder of Registrable Securities agrees (i) not to effect any
public sale or distribution of any Registrable Securities or of any securities
convertible into or exchangeable or exercisable for such Registrable Securities,
including a sale pursuant to Rule 144, and (ii) not to make any request for a
Demand Registration, S-3 Registration or Shelf Registration under this
Agreement, during the 120-day period or such shorter period agreed upon by such
Designated Holder and the requesting party beginning thirty days prior to the
anticipated effective date of such Registration Statement (except as part of
such registration).
(b) Restrictions on Public Sale by the Company. The Company agrees
not to effect any public sale or distribution of any of its equity securities,
or any securities convertible into or exchangeable or exercisable, for such
securities (except pursuant to such registrations on Form S-4 or S-8 or any
successor thereto), during the period beginning on the effective date of any
Registration Statement (other than a Shelf Registration) in which the Designated
Holders of Registrable Securities are participating and ending on the earlier of
(i) the date on which all Registrable Securities registered on such Registration
Statement are sold and (ii) 90 days after the effective date of such
Registration Statement (except as part of such registration). In the case of an
underwritten public offering of Registrable Securities under a Shelf
Registration, if and to the extent requested by the Approved Underwriter, the
Company agrees not to effect any public sale or distribution of Registrable
Securities during such period not to exceed 120 days as may be agreed upon by
the Company and the Approved Underwriter (i) beginning on the later of the date
following the date such request is made and the date 30 days before the
anticipated commencement of such public offering and (ii) ending on the earlier
of the date on which the distribution of Registrable Securities in such offering
is completed and 90 days after the commencement of such public offering.
7. Registration Procedures.
(a) Obligations of the Company. Whenever registration of Registrable
Securities has been requested pursuant to Section 3, Section 4 or Section 5 of
this Agreement, the Company shall use reasonable best efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as quickly as practicable, and in
connection with any such request, the Company shall, as expeditiously as
possible:
(i) prepare and file with the SEC a Registration Statement on any
form for which the Company then qualifies or which counsel for the Company
shall deem appropriate and which form shall be available for the sale of
such Registrable Securities in accordance with the intended method of
distribution thereof, and use its best efforts to cause such Registration
Statement to become effective; provided, however, that (x) before filing a
Registration Statement or prospectus or any amendments or supplements
thereto, the Company shall provide one counsel selected by the Designated
Holders holding a majority of the Registrable Securities being registered
in such registration ("Holders' Counsel") and any other Inspector with an
adequate opportunity to review and comment on such Registration Statement
and each prospectus included therein (and each amendment or supplement
thereto) to be filed with the SEC, subject to such documents being under
the Company's control, and (y) the Company shall notify the Holders'
Counsel and each seller of Registrable Securities of any stop order issued
or threatened by the SEC and take all reasonable action required to
prevent the entry of such stop order or to remove it if entered;
(ii) prepare and file with the SEC such amendments and supplements
to such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement
effective for the lesser of (x) 90 days and (y) such shorter period which
will terminate when all Registrable Securities covered by such
Registration Statement have been sold, or in the case of a Shelf
Registration, until such time as the Registrable Securities covered
thereby have been sold pursuant to such registration or cease to be deemed
Registrable Securities, and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such
Registration Statement;
(iii) as soon as reasonably practicable, furnish to each seller of
Registrable Securities, prior to filing a Registration Statement, at least
one copy of such Registration Statement as is proposed to be filed, and
thereafter such number of copies of such Registration Statement, each
amendment and supplement thereto (in each case including all exhibits
thereto), and the prospectus included in such Registration Statement
(including each preliminary prospectus) as each such seller may reasonably
request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
(iv) register or qualify such Registrable Securities under such
other securities or "blue sky" laws of such jurisdictions as any seller of
Registrable Securities may reasonably request, and to continue such
qualification in effect in such jurisdiction for as long as permissible
pursuant to the laws of such jurisdiction, or for as long as any such
seller requests or until all of such Registrable Securities are sold,
whichever is shortest, and do any and all other acts and things which may
be reasonably necessary or advisable to enable any such seller to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; provided, however, that the Company shall
not be required to (x) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for
this Section 7(a)(iv), (y) subject itself to taxation in any such
jurisdiction or (z) consent to general service of process in any such
jurisdiction;
(v) 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 happening of any event as
a result of which the prospectus included in such Registration Statement
contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under
which they were made, and the Company shall promptly prepare a supplement
or amendment to such prospectus and furnish to each seller a reasonable
number of copies of such supplement to or an amendment of such prospectus
as may be necessary so that, after delivery to the purchasers of such
Registrable Securities, such prospectus shall not contain as 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 in light of the circumstances under which they were made;
(vi) enter into and perform customary agreements (including an
underwriting agreement in customary form with the Approved Underwriter or
Company Underwriter, if any, selected as provided in Section 3, Section 4
or Section 5, as the case may be) and take such other actions as are
prudent and reasonably required in order to expedite or Facilitate the
disposition of such Registrable Securities;
(vii) make available at reasonable times for inspection by any
seller of Registrable Securities, any managing underwriter participating
in any disposition of such Registrable Securities pursuant to a
Registration Statement, Holders' Counsel and any attorney, accountant or
other agent retained by any such seller or any managing underwriter (each,
an "Inspector" and collectively, the "Inspectors"), all financial and
other records, pertinent corporate documents and properties of the Company
and its subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise their due diligence responsibility,
and cause the Company's and its subsidiaries' officers, directors and
employees, and the independent public accountants of the Company, to
supply all information reasonably requested by any such Inspector in
connection with such Registration Statement. Records that the Company
determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors (and
the inspectors shall confirm their agreement in writing in advance to the
Company if the Company shall so request) unless (x) the disclosure of such
Records is necessary, in the Company's judgment, to avoid or correct a
misstatement or omission in the Registration Statement, (y) the release of
such Records is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction after exhaustion of all appeals therefrom or (a)
the information in such Records was known to the Inspectors on a
non-confidential basis prior to its disclosure by the Company or has been
made generally available to the public. Each seller of Registrable
Securities agrees that it shall, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company, at the Company's expense, to undertake
appropriate action to prevent disclosure of the Records deemed
confidential;
(viii) if such sale is pursuant to an underwritten offering, use
reasonable best efforts to obtain a "cold comfort" letter from the
Company's independent public accountants in customary form and covering
such matters of the type customarily covered by "cold comfort" letters as
Holders' Counsel or the managing underwrites reasonably request;
(ix) use its reasonable best efforts to furnish, at the request of
any seller of Registrable Securities on the date such securities are
delivered to the underwriters for sale pursuant to such registration or,
if such securities are not being sold through underwriters, on the date
the Registration Statement with respect to such securities becomes
effective, an opinion, dated such date, of counsel representing the
Company for the purposes of such registration, addressed to the
underwriters, if any, and to the seller making such request, covering such
legal matters with respect to the registration in respect of which such
opinion is being given as such seller may reasonably request and are
customarily included in such opinions;
(x) otherwise use reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable but no later than 15
months after the effective date of the Registration Statement, an earnings
statement covering a period of 12 months beginning after the effective
date of the Registration Statement, in a manner which satisfies the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xi) cause all such Registrable Securities to be listed on each
securities exchange or automated quotation system on which similar
securities issued by the Company are then listed or quoted; provided,
however, that the applicable listing requirements are satisfied;
(xii) keep Holders' Counsel advised as to the initiation and
progress of any registration under Section 3, Section 4 or Section 5
hereunder;
(xiii) cooperate with each seller of Registrable Securities and each
underwriter participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the National Association of Securities Dealers,
Inc. (the "NASD"); and
(xiv) take all other steps reasonably necessary to effect the
registration of the Registrable Securities contemplated hereby.
(b) Seller Information. 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 securities as
the Company may from time to time reasonably request in writing.
(c) Notice to Discontinue. Each Designated 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 Section 7(a)(v), such Designated
Holder shall forthwith discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until such Designated Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 7(a)(v) and, if so directed by the
Company, such Designated Holder shall deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in such Designated
Holder's possession, of the prospectus covering such Registrable Securities
which is current at the time of receipt of such notice. If the Company shall
give any such notice, the Company shall extend the period during which such
Registration Statement shall be maintained effective pursuant to this Agreement
(including, without limitation, the period referred to in Section 7(a)(ii)) by
the number of days during the period from and including the date of the giving
of such notice pursuant to Section 7(a)(v) to and including the date when
sellers of such Registrable Securities under such Registration Statement shall
have received the copies of the supplemented or amended prospectus contemplated
by and meeting the requirements of Section 7(a)(v).
(d) Registration Expenses. The Company shall pay all expenses
arising from or incident to its performance of, or compliance with, this
Agreement, including, without limitation, (i) SEC, stock exchange and NASD
registration and filing fees, (ii) all fees and expenses incurred in complying
with securities or "blue sky" laws (including reasonable fees, charges and
disbursements of counsel to any underwriter incurred in connection with "blue
sky" qualifications of the Registrable Securities), (iii) all printing,
messenger and delivery expenses, (iv) the fees, charges and disbursements of
counsel to the Company and of its independent public accountants and any other
accounting fees, charges and expenses incurred by the Company (including,
without limitation, any expenses arising from any "cold comfort" letters or any
special audits incident to or required by any registration or qualification) and
any legal fees, charges and expenses incurred by the Company and, in the case of
a Demand Registration, the Initiating Holders and (v) any liability insurance or
other premiums for insurance for the benefit of the Company or its directors and
officers obtained in connection with any Demand Registration or piggy-back
registration thereon, Incidental Registration or S-3 Registration pursuant to
the terms of this Agreement, regardless of whether such Registration Statement
is declared effective. All of the expenses described in the preceding sentence
of this Section 7(d) are referred to herein as "Registration Expenses."
"Registration Expenses" shall not include, and the Designated Holders of
Registrable Securities sold pursuant to a Registration Statement shall bear, the
expense of any broker's commission or underwriter's discount or commission
relating to registration and sale of such Holders' Registrable Securities and
any fees and expenses of counsel to or accountants or other advisors for, such
Designated Holders, all of which shall be borne by the Designated Holders;
provided, however, that nothing in this Section 7(d) shall be construed to
supersede the Company's obligations with respect to the payment of expenses in
connection with a Demand Registration or an Incidental Registration, as
described in Sections 3(d) and 4(b) above and clause (iv) above.
8. Indemnification Contribution.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Designated Holder and each person who controls (within
the meaning of Section 15 of the Securities Act) such Designated Holder from and
against any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) incurred by them arising out of or based upon
any untrue, or allegedly untrue, statement of a material fact contained in any
Registration Statement, prospectus or preliminary prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as the same are made in
reliance upon, caused by or contained in any information concerning such
Designated Holder furnished in writing to the Company by or on behalf of such
Designated Holder expressly for use therein, including, without limitation, the
information furnished to the Company pursuant to Section 8(b). The Company shall
also provide customary indemnities to any underwriters of the Registrable
Securities and each Person who controls such underwriters (within the meaning of
Section I5 of the Securities Act) to the same extent as provided above with
respect to the indemnification of the Designated Holders of Registrable
Securities.
(b) Indemnification by Designated Holders. In connection with any
Registration Statement in which a Designated Holder is participating pursuant to
Section 3, Section 4 or Section 5 hereof, each such Designated Holder shall
promptly furnish to the Company in writing such information with respect to such
Designated Holder as the Company may reasonably request or as may be required by
law for use in connection with any such Registration Statement or prospectus and
all information required to be disclosed in order to make the information
previously furnished to the Company by such Designated Holder not materially
misleading or necessary to cause such Registration Statement not to omit a
material fact with respect to such Designated Holder necessary in order to make
the statements therein not misleading. Each Designated Holder agrees to
indemnify and hold harmless the Company, any underwriter retained by the Company
and each person who controls the Company or such underwriter (within the meaning
of Section 15 of the Securities Act) to the same extent as the foregoing
indemnity from the Company to the Designated Holders, but only with respect to
any such information with respect to such Designated Holder furnished in writing
to the Company by or on behalf of such Designated Holder expressly for use
therein, including, without limitation, the information furnished to the Company
pursuant to this Section 8(b); provided, however, that the total amount to be
indemnified by such Designated Holder pursuant to this Section 8(b) shall be
limited to the net proceeds received by such Designated Holder in the offering
to which the Registration Statement or prospectus relates.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder (the "Indemnified Party") agrees to give prompt
written notice to the indemnifying party (the "Indemnifying Party") after the
receipt by the Indemnified Party of any written notice of the commencement of
any action, suit, proceeding or investigation or threat thereof made in writing
for which the Indemnified Party intends to claim indemnification or contribution
pursuant to this Agreement; provided, however, that the failure so to notify the
Indemnifying Party shall not relieve the Indemnifying Party of any liability
that it may have to the Indemnified Party hereunder; except to the extent that
the Indemnifying Party is prejudiced or otherwise forfeits substantive rights or
defenses by reason of such failure. If notice of commencement of any such action
is given to the Indemnifying Party as above provided, the Indemnifying Party
shall be entitled to participate in and, to the extent it may wish, jointly with
any other Indemnifying Party similarly notified, to assume the defense of such
action at its own expense, with counsel chosen by it and reasonably satisfactory
to such Indemnified Party. The Indemnified Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be paid by the Indemnified Party
unless (i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying
Party fails to assume the defense of such action with counsel reasonably
satisfactory to the Indemnified Party or (iii) the named parties to any such
action (including any impleaded parties) include both the Indemnifying Party and
the Indemnified Party and such parties have been advised by such counsel that
either (x) representation of such Indemnified Party and the Indemnifying Party
by the same counsel would be inappropriate under applicable standards of
professional conduct or (y) there may be one or more legal defenses available to
the Indemnified Party which are different from or additional to these available
to the Indemnifying Party. In any of such cases, the Indemnifying Party shall
not have the right to assume the defense of such action on behalf of such
Indemnified Party, it being understood, however, that the Indemnifying Party
shall not be liable for the fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all Indemnified Parties. No
Indemnifying Party shall be liable for any settlement entered into without its
written consent, which consent shall not be unreasonably withheld. No
Indemnifying Party shall, without the consent of such Indemnified Party, effect
any settlement of any pending or threatened proceeding in respect of which such
Indemnified Party is a party and indemnity has been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability for claims that are the subject matter
of such proceeding.
(d) Contribution. If the indemnification provided for in this
Section 8 from the Indemnifying Party is unavailable to an Indemnified Party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party and Indemnified Party in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative faults of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Sections 8(a), 8(b) and 8(c), any legal
or other fees, charges or expenses reasonably incurred by such party in
connection with any investigation or proceeding; provided, however, that the
total amount to be indemnified by such Designated Holder shall be limited to the
net proceeds received by such Designated Holder in the offering.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
9. Rule 144. The Company covenants that from and after the date of
this Agreement it shall (a) file any reports required to be filed by it under
the Exchange Act and (b) take such further action as each Designated Holder of
Registrable Securities may reasonably request (including providing any
information necessary to comply with Rule 144), all to the extent required from
time to time to enable such Designated Holder 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 ("Rule 144"), or (ii) any similar rules or
regulations hereafter adopted by the SEC. The Company shall, upon the request of
any Designated Holder of Registrable Securities, deliver to such Designated
Holder a written statement as to whether it has complied with such requirements.
The Company shall, upon the request of any Designated Holder of Registrable
Securities, deliver to such Designated Holder unlegended certificates in
settlement of a transaction pursuant to an effective Registration Statement or
Rule 144; provided, however, that such Designated Holder shall provide the
Company with an opinion of counsel satisfactory to the Company (or other
evidence reasonably satisfactory) that such Shares may be unlegended; provided
further, however, that if at a later date for any reason such Shares require
that a legend be set forth on the certificates, then such Designated Holder
shall return the unlegended certificates in exchange for legended certificates.
10. Miscellaneous.
(a) Recapitalizations, Exchanges, etc. The provisions of this
Agreement shall apply, to the full extent set forth herein with respect to (i)
the shares of Common Stock, (ii) any and all shares of voting common stock of
the Company into which the shares of Common Stock are converted, exchanged or
substituted in any recapitalization or other capital reorganization by the
Company and (iii) any and all equity securities of the Company or any successor
or assign of the Company (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in conversion of, in exchange for
or in substitution of, the shares of Common Stock and shall be appropriately
adjusted for any stock dividends, splits, reverse splits, combinations,
recapitalizations and the like occurring after the date hereof. The Company
shall cause any successor or assign (whether by sale, merger or otherwise) to
enter into a new registration rights agreement with the Designated Holders on
terms substantially the same as this Agreement as a condition of any such
transaction.
(b) No Inconsistent Agreements. The Company represents and warrants
that, except as provided in the forms, reports and documents the Company has
filed with the SEC (including all exhibits thereto), it has not granted to any
Person the right to request or require the Company to register any securities
issued by the Company, other than the rights granted to the Designated Holders
herein. The Company shall not enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Designated
Holders in this Agreement or grant any additional registration rights to any
Person or with respect to any securities which are not Registrable Securities
which are prior in right to or inconsistent with the rights granted in this
Agreement. The Company further agrees that it will not provide rights to a shelf
registration statement to any other stockholder that are more favorable than the
rights to Shelf Registration that are provided for herein.
(c) Remedies. The Designated Holders, in addition to being entitled
to exercise all rights granted by law, including recovery of damages, shall be
entitled to specific performance of their 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 the provisions of this Agreement
and hereby agrees to waive in any action for specific performance the defense
that a remedy at law would be adequate.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless consented to in writing by (i) the Company, (ii) PPGL, (iii) FEL, (iv)
the holders holding Registrable Securities representing (after giving effect to
any adjustments) at least a majority of the aggregate number of Registrable
Securities owned by each Demand Stockholder and, if the amendment, supplement,
modification, waiver or consent adversely affects the rights or obligations of
the Piggy-Back Stockholders, then also by (v) the holders holding Registrable
Securities representing (after giving effect to any adjustments) at least a
majority of the aggregate number of Registrable Securities owned by each
Piggy-Back Stockholder. Any such written consent shall be binding upon the
Company and all of the Designated Holders.
(e) Notices. All notices, demands and other communications provided
for or permitted hereunder shall be made in writing and shall be made by
registered or certified first-class mail, return receipt requested, telecopier,
courier service, overnight mail or personal delivery:
(i) if to the Company:
xxxxxxxxx.xxx Incorporated
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Office of the General Counsel
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Xx., Esq.
(ii) if to FEL:
Forthcoming Era Limited
Offshore Incorporations Limited
P.O. Box 957
Offshore Incorporations Centre
Road Town, Tortola
British Virgin Islands
with a copy to:
Xxxxxxxxx Whampoa Limited
00/X Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx Xxxxxxx
Xxxx Xxxx
Telecopy: (000) 0000 0000
Attention: Company Secretary
(iii) if to PPGL:
Prime Pro Group Limited
x/x Xxxxxx Xxxx (Xxxxxxxx) Xxxxxxx
0/X, Xxxxxx Xxxx Center
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
with a copy to:
Xxxxxx Kong (Holdings) Limited
8/F, Xxxxxx Kong Center
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Telecopy: (000) 0000 0000
Attention: Xx. Xxxxxx Ip
(iv) (if to any other Designated Holder, at its address as it
appears on the record books of the Company.
All such notices and communications shall be deemed to have been
duly given when delivered by hand, if personally delivered; when delivered by
courier or overnight mail, if delivered by commercial courier service or
overnight mail; 5 Business days after being deposited in the mail, postage
prepaid, if mailed; and when receipt is mechanically acknowledged, if properly
telecopied.
(f) Successors and Assigns; Third-Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the heirs, legatees,
legal representatives, successors and permitted assigns of each of the parties
hereto as hereinafter provided. The rights of each Investor to require
registration hereunder shall be, as to any Registrable Securities owned by such
Investor, (i) automatically transferred upon any transfer of such Registrable
Securities by such Investor to an Affiliate Transferee or by any Affiliate
Transferee to any other Affiliate Transferee (and all Registrable Securities
held by Affiliate Transferees shall continue to be Registrable Securities even
if registration rights are not transferred to and exercisable by such Affiliate
Transferees), (ii) automatically transferred upon any transfer of a number of
Registrable Securities representing 65% or more of the Investor's holding of
Common Stock purchased pursuant to the Stock Purchase Agreement to a single
purchaser or a "group" of purchasers (within the meaning of Section 13(d)(3) of
the Exchange Act) if in such transfer the purchaser(s) will receive "restricted
securities" within the meaning of Rule 144 (and such purchaser or group will
become a Demand Stockholder hereunder by executing and delivering an instrument
in the form attached hereto as Exhibit A) and (iii) in all other cases,
transferred only with the consent of the Company. The incidental or "piggy-back"
registration rights of the Designated Holders contained in Sections 3(b) and 4
hereof and the other rights of each of the Designated Holders with respect
thereto shall be, with respect to any Registrable Security, automatically
transferred upon a permitted transfer of Registrable Securities by such
Designated Holder to any Person who is the transferee of such Registrable
Security. All of the obligations of the Company hereunder shall survive any such
transfer. No Person other than the parties hereto and their heirs, legatees,
legal representatives, successors and permitted assigns is intended to be a
beneficiary of any of the rights granted hereunder.
(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 shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to the
principles of conflicts of law of any jurisdiction.
(j) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, 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 hereof shall not be in any way impaired, it being intended that all
of the rights and privileges of the Designated Holders shall be enforceable to
the fullest extent permitted by law.
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein and
in the Stock Purchase Agreement, and any stock purchase agreement between the
Company and a Demand Stockholder or a Piggy-Back Stockholder. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(l) Further Assurances. Each of the parties shall execute such
documents and perform such further acts as may be reasonably required or
necessary to carry out or to perform the provisions of this Agreement.
(m) Other Agreements. Nothing contained in this Agreement shall be
deemed to be a waiver of, or release from, any obligations any party hereto may
have under, or any restrictions on the transfer of Registrable Securities or
other securities of the Company imposed by, any other agreement including, but
not limited to, the Stock Purchase Agreement or any series of preferred stock
issued to a Demand Stockholder or a Piggy-Back Stockholder and any stock
purchase agreement between the Company and a Demand Stockholder or a Piggy-Back
Stockholder.
IN WITNESS WHEREOF, the undersigned have executed, or have caused to
be executed, this REGISTRATION RIGHTS AGREEMENT on the date first written above.
XXXXXXXXX.XXX INCORPORATED
By: /s/ Xxxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxxx X. Xxxx
Title:Chief Operating Officer
PRIME PRO GROUP LIMITED
By: /s/ Xxxxxxx Xxx
----------------------------------------
Name: Xxxxxxx Xxx
Title: Authorized Signatory
FORTHCOMING ERA LIMITED
By: /s/ Xxxxxxx Xxx
----------------------------------------
Name: Xxxxxxx Xxx
Title:Director
Exhibit A
ACKNOWLEDGMENT AND AGREEMENT
TO THE REGISTRATION RIGHTS AGREEMENT
WHEREAS, pursuant to a [ ], the undersigned [wishes] [wish] to
receive from xxxxxxxxx.xxx Incorporated, a Delaware corporation (the "Company"),
_____ shares, par value $0.01 per share, of [Common Stock] [Preferred Stock], or
certain newly issued options, warrants or other rights to purchase _______
shares of Common Stock (the "Shares"), of the Company; and
WHEREAS, the undersigned [wishes] [wish] to receive certain
registration rights with respect to such Shares; and
WHEREAS, the undersigned [has] [have] reviewed a copy of that
certain Registration Rights Agreement dated as of February 15, 2001 (the
"Agreement"), among the Company, Prime Pro Group Limited and Forthcoming Era
Limited and [has] been given a copy of the Agreement and afforded ample
opportunity to read and to have counsel review it, and the undersigned [is]
[are] thoroughly familiar with its terms.
NOW, THEREFORE, in consideration of the mutual premises contained
herein and in the Agreement and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and to induce the
Company to issue such Shares and to grant such registration rights, the
undersigned [does] [collectively do] hereby acknowledge and agree that (i) the
undersigned [has] [have] been given a copy of the Agreement and afforded ample
opportunity to read and to have counsel review it, and the undersigned is
thoroughly familiar with its terms, (ii) the Shares are subject to terms and
conditions set forth in the Agreement, (iii) the undersigned [does]
[collectively do] hereby agree fully to be bound by the Agreement collectively
as a group as a "Demand Stockholder" (as therein defined), and upon the
execution and delivery of this Acknowledgment and Agreement by the Company, the
undersigned shall have [collectively as a group] all of the rights and
obligations under the Agreement as a Demand Stockholder and (iv) the undersigned
[does] [collectively do] hereby ______ name to serve as [its] [their]
representative under the Agreement.
This __________, day of ________________, 20__.
XXXXXXXXX.XXX INCORPORATED
By:
--------------------------------
Name:
Title:
Exhibit B
ACKNOWLEDGMENT AND AGREEMENT
TO THE REGISTRATION RIGHTS AGREEMENT
WHEREAS, pursuant to a [ ], the undersigned [wishes] [wish] to
receive from xxxxxxxxx.xxx Incorporated, a Delaware corporation (the "Company"),
_____ shares, par value $0.01 per share, of [Common Stock] [Preferred Stock], or
certain newly issued options, warrants or other rights to purchase ______ shares
of Common Stock (the "Shares"), of the Company; and
WHEREAS, the undersigned [wishes] [wish] to receive certain
registration rights with respect to such Shares; and
WHEREAS, the undersigned [has] [have] reviewed a copy of that
certain Registration Rights Agreement dated as of February 15, 2001 (the
"Agreement"), among the Company, Prime Pro Group Limited and Forthcoming Era
Limited and [has] [have] been given a copy of the Agreement and afforded ample
opportunity to read and to have counsel review it, and the undersigned [is]
[are] thoroughly familiar with its terms.
NOW, THEREFORE, in consideration of the mutual premises contained
herein and in the Agreement and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and to induce the
Company to issue such Shares and to grant such registration rights, the
undersigned [does] [collectively do] hereby acknowledge and agree that (i) the
undersigned [has] [have] been given a copy of the Agreement and afforded ample
opportunity to read and to have counsel review it, and the undersigned is
thoroughly familiar with its terms, (ii) the Shares are subject to terms and
conditions set forth in the Agreement, (iii) the undersigned [does]
[collectively do] hereby agree fully to be bound by the Agreement as a
Piggy-Back Stockholder (as therein defined), and upon the execution and delivery
of this Acknowledgment and Agreement by the Company, the undersigned shall have
[collectively as a group] all of the rights and obligations under the Agreement
as a Piggy-Back Stockholder, and (iv) the undersigned [does] [collectively do]
hereby name ________ to serve as [its] [their] representative under the
Agreement.
This _________day of __________________, 20__.
XXXXXXXXX.XXX INCORPORATED
By:
--------------------------------
Name:
Title:
