FORM OF REGISTRATION RIGHTS AGREEMENT
Exhibit 4.1
FORM OF
This Registration Rights Agreement (this “Agreement”), dated as of , 2007, is
made by and among (i) Xxxxx Lemmerz International, Inc., a Delaware corporation (the
“Company”), (ii) Deutsche Bank Securities Inc. (“DBSI”) and (iii) SPCP Group, LLC
(“SP”), and any parties identified on the signature pages of any Additional Investor
Agreements (as defined below) executed and delivered pursuant to Section 12.2 hereto (each,
including DBSI and SP, an “Investor” and, collectively, the “Investors”).
RECITALS
WHEREAS, in connection with the consummation of the transactions contemplated by that certain
Amended and Restated Equity Purchase and Commitment Agreement dated as of April 16, 2007 (the
“EPCA”) by and between the Company and DBSI, DBSI has agreed to purchase shares of Common
Stock (as defined below) in accordance with the provisions of the EPCA;
WHEREAS, in connection with the EPCA, DBSI and SP have entered into an agreement (the
“Principal Additional Investor Agreement”), pursuant to which SP has agreed to purchase
certain shares of the Common Stock;
WHEREAS, in connection with the EPCA, DBSI and the other Investors may enter into one or more
agreements (each, an “Additional Investor Agreement”), pursuant to which DBSI may arrange
for one or more Investors to purchase certain shares of the Common Stock; and
WHEREAS, in consideration of the Investors’ commitment to purchase the Common Stock pursuant
to and on the terms and conditions set forth in the EPCA, the Company has agreed to enter into a
registration rights agreement with respect to certain shares of Common Stock to be acquired by the
Investors and certain of their Affiliates (as defined below).
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements contained
herein and in the EPCA, and intending to be legally bound hereby, the parties hereto hereby agree
as follows:
ARTICLE I
Definitions
For purposes of this Agreement, the following terms have the following meanings:
“Additional Investor Agreement” has the meaning given to such term in the recitals
hereof.
“Affiliate” has the meaning given to that term pursuant to Rule 12b-2 under the
Exchange Act.
“Agreement” has the meaning given to that term in the introductory paragraph hereof.
“Blackout Period” means any period during which, in accordance with Article IV
hereof, the Company is entitled to postpone or suspend the effectiveness of the Initial
Registration Statement.
“Business Day” means any day, other than a Saturday or Sunday, on which national
banking institutions in New York, New York, are open.
“Code” means the Internal Revenue Code of 1986, as amended.
“Common Stock” means the shares of Common Stock, par value $0.01 per share, of the
Company issued on and after the date hereof and any additional shares of common stock paid, issued
or distributed in respect of any such shares by way of a stock dividend, stock split or
distribution, or in connection with a combination of shares, recapitalization, reorganization,
merger or consolidation, or otherwise.
“Company” has the meaning given to that term in the introductory paragraph hereof.
“control” has the meaning given to that term under Rule 405 under the Securities Act
(and “controlled” and “controlling” shall have correlative meanings).
“DBSI” has the meaning given that term in the introductory paragraph hereof.
“Effective Date” means each effective date or deemed effective date under the
Securities Act of the Initial Registration Statement or any post-effective amendment thereto.
“EPCA” has the meaning given that term in the recitals hereof.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated by the SEC thereunder.
“Filing Date” means March 16, 2007.
“Free Writing Prospectus” means a free writing prospectus as defined in Rule 405 under
the Securities Act relating to the Registrable Securities included in the applicable registration.
“Holder Shelf Offering” has the meaning given to that term in Section 3.2 of
this Agreement.
“Holders” means the Investors
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“Indemnified Person” has the meaning given to that term in Section 6.3 of this
Agreement.
“Indemnifying Person” has the meaning given to that term in Section 6.3 of
this Agreement.
“Initial Registration Statement” means the Registration Statement on Form S-3 filed by
the Company pursuant to Rule 415 of the Securities Act relating to the offer and sale of
Registrable Securities by the Holders from time to time.
“Investor” and “Investors” have the meanings given to those terms in the
introductory paragraph hereof.
“Issuer Free Writing Prospectus” means an issuer free writing prospectus as defined in
Rule 433 under the Securities Act.
“Joinder Agreement” has the meaning given to that term in Section 10.2 of this
Agreement.
“Majority Selling Holders” means those Selling Holders whose Registrable Securities
included in a specified registration represent a majority of the Registrable Securities of all
Selling Holders included therein.
“Material Adverse Effect” means a material adverse effect on the business, results of
operations, properties, condition (financial or otherwise) of the Company and its Subsidiaries,
taken as a whole.
“NASD” has the meaning given to that term in Section 7.1(m) of this Agreement.
“NASDAQ” means the NASDAQ Global Market.
“NYSE” means the New York Stock Exchange.
“Officer’s Certificate” means a certificate signed on behalf of the Company by either
the Chief Executive Officer or the Chief Financial Officer of the Company.
“Other Stockholders” means any Person (other than the Holders) having rights to
participate in a registration of the Common Stock.
“Permitted Free Writing Prospectus” has the meaning given to that term in Article
VII of this Agreement.
“Person” means any individual, corporation, general or limited partnership, limited
liability company, joint venture, trust or other entity or association, including without
limitation any governmental authority.
“Preliminary Prospectus” means the prospectus included in the Initial Registration
Statement (and any amendments thereto) before it becomes effective, any
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prospectus filed with the
SEC pursuant to Rule 424(a) under the Securities Act and the prospectus included in the Initial
Registration Statement, at the time of their effectiveness that omits the information required by
Rule 430 of the Securities Act.
“Principal Additional Investor Agreement” has the meaning given to such term in the
recitals hereof.
“Prospectus” means the prospectus relating to the Registrable Securities included in
the Initial Registration Statement, and any such prospectus as supplemented by any and all
prospectus supplements and as amended by any and all amendments (including post-effective
amendments) and including all material incorporated by reference or deemed to be incorporated by
reference in such Prospectus.
“Qualified Registrable Securities” means at any time (a) shares of Common Stock
purchased by a Holder pursuant to the EPCA, the Principal Additional Investor Agreement or any
Additional Investor Agreement or held by an Investor as of the date of this Agreement, and (b) any
additional shares of Common Stock paid, issued or distributed in respect of any shares of the types
described in clause (a) of this definition by way of stock dividend, stock split or distribution,
or in connection with a combination of shares, recapitalization, reorganization, merger or
consolidation, or otherwise; provided, however, that as to any Qualified
Registrable Securities, such securities shall cease to constitute Qualified Registrable Securities
upon the earliest to occur of: (i) the date on which the securities are disposed of pursuant to an
effective registration statement under the Securities Act; (ii) the date on which the securities
are disposed of pursuant to Rule 144 (or any successor provision) under the Securities Act; and
(iii) the date on which the securities cease to be outstanding.
“Questionnaire” has the meaning given to that term in Section 3.2 of this
Agreement.
“Registrable Securities” means at any time (a) shares of Common Stock purchased by a
Holder pursuant to the EPCA, the Principal Additional Investor Agreement or any Additional Investor
Agreement or held by an Investor as of the date of this Agreement, (b) any other shares of Common
Stock held by any of the Holders now or at any time in the future, and (c) any additional shares of
Common Stock held by a Holder paid, issued or distributed in respect of any shares of the types
described in clauses (a), (b) and (c) of this definition by way of stock dividend, stock split or
distribution, or in connection with a combination of shares, recapitalization, reorganization,
merger or consolidation, or otherwise; provided, however, that as to any
Registrable Securities, such securities shall cease to constitute Registrable Securities upon the
earliest to occur of: (i) the date on which the securities are disposed of pursuant to an effective
registration statement under the Securities Act; (ii) the date on which the securities are disposed
of pursuant to Rule 144 (or any successor provision) under the Securities Act; and (iii) the date
on which the securities cease to be outstanding.
“Registration Expenses” has the meaning given to that term in Section 5.4(a)
of this Agreement.
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“Required Period” means: three years following the first day of effectiveness of the
Initial Registration Statement or such shorter period of time at which all Registrable Securities
registered pursuant to such Initial Registration Statement have been disposed of or no longer
constitute Registrable Securities.
“Rights Offering” shall have the meaning given to such term in the EPCA.
“Rule 144” means Rule 144 promulgated 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.
“SEC” means the United States Securities and Exchange Commission and any successor
United States federal agency or governmental authority having similar powers.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the SEC thereunder.
“Selling Holder” means, with respect to a specified registration pursuant to this
Agreement, Holders whose Registrable Securities are included in such registration.
“Selling Holder Information” has the meaning given to that term in Section 3.2
of this Agreement.
“SP” has the meaning given that term in the introductory paragraph hereof.
“Underwritten Registration” or “Underwritten Offering” means a registration in
which securities of the Company are sold to an underwriter for reoffering to the public.
ARTICLE II
Representations and Warranties of the Company
2.1 Representations and Warranties. The Company represents and warrants to each
Investor as set forth below, as of the date hereof, as of each Effective Date and during the period
that the Initial Registration Statement is available for sales by the Investors pursuant to the
terms hereof as follows:
(a) Initial Registration Statement, Preliminary Prospectus and Prospectus. The Initial
Registration Statement or any post-effective amendment thereto, as of its Effective Date, complied
or will comply in all material respects with the Securities Act, and did not or will not contain
any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and as of the applicable filing
date and at the time of delivery or deemed delivery of each Prospectus and any amendment or
supplement thereto, such Prospectus did not and will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
Each Issuer Free Writing Prospectus will comply in all material respects with the Securities Act,
will be filed in accordance with the Securities Act (to the extent required
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thereby) and, and at the time of filing or delivery when taken together with the Preliminary
Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus,
and at the Effective Date did not or will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Each Preliminary Prospectus, at the
time of filing thereof and at the time of delivery or deemed delivery, complied or will comply in
all material respects with the Securities Act and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the Company makes no representation and warranty with
respect to any statements or omissions made in reliance on and in conformity with information
relating to any Investor furnished to the Company in writing by the Investor or the Additional
Investors expressly for use in the Initial Registration Statement and the Prospectus and any
amendment or supplement thereto.
(b) Financial Statements. Except as otherwise disclosed in the Initial Registration
Statement and the Preliminary Prospectus or any documents incorporated therein by reference, the
financial statements and the related notes of the Company and its consolidated subsidiaries
included or incorporated by reference in the Initial Registration Statement and the Preliminary
Prospectus comply or will comply, as the case may be, in all material respects with the applicable
requirements of the Securities Act and present fairly in all material respects the financial
position, results of operations and cash flows of the Company and its subsidiaries as of the dates
indicated and for the periods specified; such financial statements have been or will be prepared in
conformity with U.S. generally accepting accounting principles applied on a consistent basis
throughout the periods covered thereby, and the supporting schedules included or incorporated by
reference therein, present fairly the information required to be stated therein; and the other
financial information included or incorporated by reference in the Initial Registration Statement
and the Preliminary Prospectus, has been or will be derived from the accounting records of the
Company and its subsidiaries and presents fairly or will present fairly the information shown
thereby; and any pro forma financial information and the related notes that may be
included or incorporated by reference in the Initial Registration Statement and the Preliminary
Prospectus, has been or will be prepared in accordance with the applicable requirements of the
Securities Act and the Exchange Act, as applicable, and the assumptions underlying such pro
forma financial information are or will be reasonable and are or will be set forth in or
incorporated by reference in the Initial Registration Statement and the Preliminary Prospectus.
ARTICLE III
Initial Registration
3.1 Initial Registration Statement. Subject to the terms and conditions set forth in
this Agreement, the Company caused the Initial Registration Statement to be filed with the SEC on
the Filing Date, and the Company shall use its commercially best efforts to cause it to be declared
effective by the SEC as promptly as practicable thereafter, and in any event, prior to the closing
of the Rights Offering. Once the Initial Registration Statement is declared effective by the SEC, the
Company shall use its commercially best efforts to cause the Initial
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Registration Statement to
remain continually effective, and supplemented and amended throughout the Required Period. The
Company’s obligations under this Section 3.1 are subject to the provisions of Article
VI.
3.2 Initial Registration Procedures. During the Required Period, any Holder shall be
entitled, subject to the remainder of this Section 3.2, to sell all or any part of the Registrable
Securities registered on behalf of such Holder pursuant to the Initial Registration Statement
(“Holder Shelf Offering”). Notwithstanding any other provision of this Agreement, no Holder may
include any of its Registrable Securities in a Holder Shelf Offering pursuant to this Agreement
unless the Holder shall provide to the Company a fully completed notice and questionnaire in
substantially the form set forth in Exhibit A hereto (the “Questionnaire”) and such other
information in writing as may be reasonably requested by the Company pursuant to Section 5.2 (the
“Selling Holder Information”). In order to be named as a selling securityholder in the Initial
Registration Statement or Prospectus at the time it initially becomes effective under the
Securities Act, each Holder must no later than three Business Days prior to the Effective Date of
the Initial Registration Statement, which will be at least 20 days from the Filing Date, furnish in
writing the completed Questionnaire and such other Selling Holder Information that the Company may
reasonably request in writing, if any, to the Company. The Company shall use its reasonable best
efforts to cause the Effective Date of the Initial Registration Statement to occur immediately
prior to the closing of the Rights Offering. The Company shall (i) include in the Initial
Registration Statement the information from the completed Questionnaire and such other Selling
Holder Information, if any, received by the Company at least three Business Days prior to the
initial Effective Date of the Initial Registration Statement and the Prospectus, as necessary and
(ii) in a manner so that upon such effectiveness of the Initial Registration Statement the Holder
shall be named as a selling securityholder and be permitted to deliver (or be deemed to deliver)
such Prospectus to purchasers of the Registrable Securities in accordance with applicable law.
From and after the date that the Initial Registration Statement initially becomes effective, upon
receipt of a completed Questionnaire (including any updated Questionnaire) and such other Selling
Holder Information (including any updated Selling Holder Information) that the Company may
reasonably request in writing (including any amendments to any prior Questionnaire or Selling
Holder Information), if any, but in any event within seven Business Days after the Company receives
the completed Questionnaire and such other Selling Holder Information, if any, the Company shall
file any amendments or supplements to the Initial Registration Statement or Prospectus or the
documents incorporated by reference therein necessary for such Holder to be named as a selling
securityholder and permit such Holder to deliver (or be deemed to deliver) the Prospectus to
purchasers of the Registrable Securities (subject to the Company’s rights during a Blackout
Period). Holders that do not deliver a completed written Questionnaire and such other information,
as provided for in this Section 3.2, shall not be named as selling securityholders in the
Prospectus until such Holder delivers such information and the appropriate notice and other periods
called for by this Agreement shall have elapsed. If the Company shall file a post-effective
amendment to the Initial Registration Statement, it shall use commercially reasonable efforts to
cause such post-effective amendment to be declared effective under the Securities Act as promptly
as is reasonably practicable and notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment filed pursuant to this
Article III. If such Selling Holder Information is delivered during a Blackout Period, the Company
shall so inform the Holder delivering such Selling Holder Information and shall take the actions set forth in this
Section 3.2
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upon expiration of the Blackout Period as though such Holder’s Selling Holder
Information had been delivered on the expiration date of such Blackout Period.
3.3 Continuous Effectiveness of Registration Statement
(a) The Company shall use its reasonable best efforts to keep the Initial Registration
Statement continuously effective and not subject to any stop order, injunction or other similar
order or requirement of the SEC until the earlier of (1) the expiration of the Required Period
(subject to extension pursuant to Section 5.3) or (2) the date on which all Registrable Securities
covered by the Initial Registration Statement shall (A) have been disposed of pursuant to such
Initial Registration Statement or (B) cease to be Registrable Securities; provided, however, that
in no event shall such period expire prior to the expiration of the applicable period referred to
in Section 4(3) of the Securities Act and Rule 174 promulgated thereunder.
(b) In the event of any stop order, injunction or other similar order or requirement of the
SEC relating to the Initial Registration Statement or any Blackout Period, the Required Period for
such Initial Registration Statement shall be extended by the number of days during which such stop
order, injunction or similar order or requirement or Blackout period is in effect.
ARTICLE IV
Blackout Period and Hold-Back
4.1 Initial Registration Blackout. Notwithstanding any other provision of this
Agreement to the contrary, if the Board of Directors of the Company determines in good faith that
the registration and distribution of Registrable Securities (a) would materially impede, delay or
interfere with, or require premature disclosure of, any material financing, offering, acquisition,
merger, corporate reorganization or other significant transaction or any negotiations, discussions
or pending proposals with respect thereto, involving the Company or any of its Subsidiaries, or (b)
would require disclosure of non-public material information, the disclosure of which would
materially and adversely affect the Company, the Company shall (i) be entitled to suspend the
effectiveness of the Initial Registration Statement and/or the use of any resale Prospectus for a
reasonable period of time not to exceed 60 days and (ii) promptly give the Holders written notice
of such postponement or suspension (which notice need not specify the nature of the event giving
rise to such suspension).
4.2 Blackout Period Limits. Notwithstanding anything contained in this Article
IV to the contrary, the Company shall not be entitled to more than two Blackout Periods during
any consecutive 12-month period, and in no event shall the number of days included in all Blackout
Periods during any consecutive 12-month period exceed an aggregate of 90 days and in no event shall
the Company be entitled to suspend the effectiveness of the Initial Registration Statement and/or
the use of any resale Prospectus included in such Initial Registration Statement pursuant to this
Article IV unless it postpones or suspends during the Blackout Period the effectiveness of
any registration statements required pursuant to the registration rights of the Other Stockholders;
provided, however, that notwithstanding anything contained in this
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Agreement to the
contrary, the Company shall not effect any Blackout Period during the 90-day period subsequent to
the closing of the Rights Offering. In the event of the occurrence of any Blackout Period during
any Required Period, the Required Period shall be extended by the number of days during which such
Blackout Period is in effect.
4.3 Hold-Back. Each Investor agrees not to effect any sale or distribution of
securities of the Company under the Initial Registration Statement or otherwise into the public
market, during the period commencing on the date the Company notifies each Investor that it
reasonably expects a registration statement with respect to an offering to become effective within
15 days, and ending 90 days after the effective date of the registration statement for such
offering, or if such registration statement fails to go effective within 15 days after the date of
such notice, ending on the 15th day after such notice, but commencing again on the date such
registration statement is declared effective by the SEC and ending 90 days after the effective date
of such registration statement. Notwithstanding, the foregoing, the Company shall not be permitted
to provide a notice pursuant to this Section 4.3 more than one time in any 15-month period.
ARTICLE V
Procedures and Expenses
5.1 Registration Procedures. In connection with the Company’s registration obligation
pursuant to Article III, the Company shall use its commercially best efforts to effect such
registration to permit the sale of Registrable Securities by a Selling Holder in accordance with
the intended method or methods of disposition thereof, and pursuant thereto the Company shall as
promptly as reasonably practicable:
(a) prepare and file with the SEC the Initial Registration Statement on an appropriate
form under the Securities Act available for the sale of the Registrable Securities by the
Selling Holders in accordance with the intended method or methods of distribution thereof;
provided, however, that the Company shall (i) before filing, furnish to one
firm of counsel for the Selling Holders selected by DBSI within a reasonable period of time
(but in any event within three Business Days) prior to the filing thereof with the SEC to
afford to such counsel, the Selling Holders, the managing underwriter and its counsel a
reasonable opportunity for review, copies of the Initial Registration Statement or
Prospectus proposed to be filed, and (ii) consider in good faith such written comments as
such counsel to the Selling Holders and the managing underwriter may reasonably propose;
(b) furnish, at its expense, to the Selling Holders such number of conformed copies of
the Initial Registration Statement and each amendment thereto, of the
Prospectus and each supplement thereto, and of such other documents as the Selling
Holders reasonably may request in writing from time to time;
(c) subject to Article III, prepare and file with the SEC any amendments and
post-effective amendments to the Initial Registration Statement as may be necessary and any
supplements to the Prospectus as may be required or appropriate, in the view of the
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Company and its counsel, by the rules, regulations or instructions applicable to the registration
form used by the Company or by the Securities Act to keep the Initial Registration Statement
effective until the earlier of (i) such time as all shares of Common Stock covered by the
Initial Registration Statement cease to be Registrable Securities and (ii) the termination
of the Required Period (giving effect to any extensions thereof pursuant to Section 4.2
or Section 5.3);
(d) promptly following its actual knowledge thereof (but in any event within two
Business Days), notify the Selling Holders and the managing underwriter, in writing, if any:
(i) when the Initial Registration Statement, Prospectus, Issuer Free Writing
Prospectus or any supplement or amendment has been filed and, with respect to the
Initial Registration Statement or any post-effective amendment, when the same has
become effective;
(ii) of any request by the SEC or any other governmental authority for
amendments or supplements to the Initial Registration Statement, Prospectus or
Issuer Free Writing Prospectus or for additional information;
(iii) of the issuance by the SEC or any other governmental authority of any
stop order suspending the effectiveness of the Initial Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any written notification with respect to
the suspension of the qualification or exemption from qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose;
(v) of the occurrence of any event during the period that the Initial
Registration Statement is effective which makes any statement made in the Initial
Registration Statement or the Prospectus or any Issuer Free Writing Prospectus
untrue in any material respect or which requires the making of any changes in such
Initial Registration Statement, Prospectus or Issuer Free Writing Prospectus so that
such Initial Registration Statement, Prospectus or Issuer Free Writing Prospectus
shall not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made, not
misleading (provided, however, that no notice by the Company shall
be required pursuant to this Section 5.1(d)(v) in the event that the Company
either promptly files a Prospectus supplement to update the Prospectus or an
appropriate Exchange Act report that is incorporated by reference into the Initial
Registration Statement, which, in either case, contains the requisite information
that results in such Initial Registration Statement no longer containing any untrue
statement of a material fact or omitting to state a material fact necessary to make
the statements therein in light of the circumstances under which they were made, not
misleading); and
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(vi) of the Company’s reasonable determination that a post-effective amendment
to the Initial Registration Statement would be required by applicable law (in which
case the Company shall file the same as soon as practicable after such determination
and use its reasonable best efforts to cause the same to become effective as soon as
practicable following filing);
(e) use its reasonable best efforts to prevent the issuance of or obtain the withdrawal
of any order suspending the effectiveness of the Initial 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 practicable date or, if
any such order or suspension is made effective during any Blackout Period, at the earliest
practicable date after the Blackout Period;
(f) prior to any public offering of Registrable Securities, use reasonable best efforts
to register or qualify, or cooperate with the Majority Selling Holders, or counsel retained
by the Selling Holders’ in accordance with Section 5.4, the managing underwriter, if
any, and its 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 such
counsel for the Selling Holders covered by the Initial Registration Statement or the
managing underwriter of an Underwritten Offering of Registrable Securities reasonably
requests in writing and do such other acts and things as may be reasonably necessary to
maintain each such registration or qualification (or exemption therefrom) effective during
the Required Period for the Initial Registration Statement; provided,
however, that the Company shall not be required to qualify generally to do business
or as a dealer in securities in any jurisdiction in which it is not then so qualified or
take any action which would subject it to general service of process or taxation in any
jurisdiction in which it is not then so subject;
(g) subject to Article IV, as promptly as reasonably practicable after the
occurrence of any event contemplated by Sections 5.1(d)(v) or 5.1(d)(vi)
hereof, use its reasonable best efforts to prepare (and furnish at its expense, subject to
any notice by the Company in accordance with Section 5.1(d), to the Selling Holders
a reasonable number of copies of) a supplement or post-effective amendment to the Initial
Registration Statement or a supplement to the related Prospectus (including by means of an
Issuer Free Writing Prospectus), or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder, such
Prospectus or Issuer Free Writing Prospectus shall 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, in light of the circumstances under which they were made,
not misleading;
(h) enter into such agreements (including an underwriting agreement), in usual and
customary form, and take such other actions as may be reasonably requested by the Selling
Holders or the managing underwriter, if any, to expedite the offer for sale or disposition
of the Registrable Securities, and in connection therewith, upon such request
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and upon the
date of closing of any sale of Registrable Securities in such Underwritten Registration:
(i) subject to the Selling Holders to whom the comfort letter is addressed
providing a customary representation letter to the independent registered public
accounting firm of the Company in form and substance reasonably satisfactory to such
accountants, use its reasonable best efforts to obtain customary “comfort”
letters from such accountants (to the extent deliverable in accordance with their
professional standards) addressed to the Selling Holder (to the extent consistent
with Statement on Auditing Standards No. 100 of the American Institute of Certified
Public Accountants) and the managing underwriter, if any, in customary form and
covering matters of the type customarily covered in “comfort” letters in
connection with Underwritten Offerings;
(ii) use its reasonable best efforts to obtain opinions of counsel to the
Company (such counsel being reasonably satisfactory to the managing underwriter, if
any) and updates thereof covering matters customarily covered in opinions of counsel
in connection with Underwritten Offerings, addressed to each Selling Holder and the
managing underwriter, provided, that the delivery of any “10b-5 statement”
may be conditioned on the prior or concurrent delivery of a comfort letter pursuant
to subsection (i) above; and
(iii) provide officers’ certificates and other customary closing documents
customarily delivered in connection with Underwritten Offerings and reasonably
requested by the managing underwriter, if any;
provided that the Company shall only be required to comply with this clause
(h): in connection with (x) the Effective Date of the Initial Registration
Statement, (y) upon five (5) Business Day’s prior written notice of a proposed sale
of Registrable Securities other than pursuant to an Underwritten Offering, and (z)
an Underwritten Offering; provided, further, that the Company shall
not be required to comply with clause (h) pursuant to subsection (y) and (z) more
than twice in any consecutive twelve month period.
(i) upon reasonable notice and at reasonable times during normal business hours, make
reasonably available for inspection by a representative of each Selling Holder, one firm of
counsel for the Selling Holders retained in accordance with Section 5.4, the
managing underwriter, if any, participating in any disposition of Registrable Securities and
its counsel and any single accountant retained by any Selling Holder or
any such underwriter, all financial and other records, pertinent corporate documents
and properties (including site visits) of the Company, and cause the appropriate officers,
directors and employees of the Company to be available to respond to questions and to make
reasonably available for such inspection all such relevant information reasonably requested
in writing by them in connection with the Initial Registration Statement, each of the
foregoing, as is customary for “due diligence” investigations; provided,
however, that prior to the closing of the Rights Offering, that
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certain confidentiality agreement, dated February 27, 2007 signed by DBSI and that certain
confidentiality agreement, dated February 27, 2007 signed by SP, shall govern such
information, and after the closing of the Rights Offering any such Persons shall first enter
into a confidentiality agreement with the Company providing that any information that is
reasonably designated by the Company as confidential at the time of delivery shall be kept
confidential by such Persons and shall be used solely for the purposes of exercising rights
under this Agreement and such Persons shall not engage in trading any securities of the
Company until such material non-public information becomes properly available, except
nothing in such writing shall restrict (i) disclosure of such information if it is required
by court or administrative order or is necessary to respond to inquiries of regulatory
authorities, (ii) disclosure of such information if it is required by law (including any
disclosure requirements pursuant to federal or state securities laws in connection with any
disposition of Registrable Securities), (iii) sharing information with other underwriters,
agents or dealers participating in the disposition of any Registrable Securities, subject to
the execution by such other underwriters, agents or dealers of reasonable non-disclosure
agreements with the Company, (iv) using any such documents or other information in
investigating or defending itself against claims made or threatened by purchasers,
regulatory authorities or others in connection with the disposition of any Registrable
Securities, (v) disclosure of such information if it becomes generally available to the
public other than as a result of a disclosure or failure to safeguard by any such Person or
(vi) disclosure of such information if it becomes available to any such Person from a source
other than the Company and such source is not bound by a confidentiality agreement or
confidentiality obligations or duties; and provided, further, that the
foregoing inspection and information gathering shall, to the greatest extent possible, be
coordinated on behalf of all the Selling Holders and the other parties entitled thereto by
the counsel to the Selling Holders retained in accordance with Section 5.4 or the
counsel to the managing underwriter; and provided, further, that after the
closing of the Rights Offering, the rights granted pursuant to this subsection may only be
used in connection with a registration set forth in the proviso to Section 5.1(h)
and subject to the limitations on frequency set forth therein;
(j) use its reasonable best efforts to comply with all applicable rules and regulations
of the SEC relating to such registration and make generally available to its securityholders
earning statements satisfying the provisions of Section 11(a) of the Securities Act;
provided that the Company shall be deemed to have complied with this Section
5.1(j) if it has satisfied the provisions of Rule 158 under the Securities Act (or any
similar rule promulgated under the Securities Act);
(k) use reasonable best efforts to cause all Registrable Securities covered by the
Initial Registration Statement if the Common Stock is then listed on the NYSE or quoted on
the NASDAQ to continue to be so listed or quoted following the offering;
(l) use reasonable best efforts to procure the cooperation of the Company’s transfer
agent in settling any offering or sale of Registrable Securities;
(m) the Company shall use its reasonable best efforts to provide such information as
may be reasonably required for any filings required to be made by the
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Selling Holders or managing underwriter, if any, with the National Association of Securities Dealers, Inc. (the
“NASD”) in connection with the offering under the Initial Registration Statement of
the Registrable Securities (including, without limitation, such as may be required by NASD
Rule 2710 or 2720), and, upon the written request of the Majority Selling Holders, shall use
reasonable best efforts to cooperate in connection with any filings required to be made with
the NASD in that regard on or prior to the filing of the Initial Registration Statement; and
(n) use reasonable best efforts to have officers of the Company attend “road
shows” for Underwritten Offerings and analyst or investor presentations and such other
selling or informational activities as are customary for transactions similar to the planned
disposition of securities requested by the Majority Selling Holders or the managing
underwriter for such offerings); provided, however, that in no event shall
the Company be required to comply with this clause (n) more than once in any consecutive
twelve month period.
5.2 Information from Holders; Holders’ Obligations
(a) It shall be a condition precedent to the obligations of the Company to include the
Registrable Securities of any Selling Holder in the Initial Registration Statement or Prospectus,
as the case may be, that such Selling Holder shall take the actions described in this Section
5.2.
(b) Each Selling Holder that has requested inclusion of its Registrable Securities in the
Initial Registration Statement shall furnish to the Company (as a condition precedent to such
Holder’s participation in such registration) a Questionnaire. Each Holder agrees promptly to
furnish to the Company in writing all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder, in light of the circumstances under
which it was made, not misleading, any other information regarding such Holder and the distribution
of such Registrable Securities as may be required to be disclosed in the Prospectus or the Initial
Registration Statement under applicable law or pursuant to SEC comments and any information
otherwise reasonably required by the Company to comply with applicable law or regulations.
(c) Each Selling Holder shall promptly (i) following its actual knowledge thereof, notify the
Company of the occurrence of any event that makes any statement made in the Initial Registration
Statement, Prospectus, Issuer Free Writing Prospectus or other Free Writing Prospectus regarding
such Selling Holder untrue in any material respect or that requires the
making of any changes in the Initial Registration Statement, Prospectus or Free Writing
Prospectus so that, in such regard, it shall not contain any untrue statement of a material fact or
omit any material fact required to be stated therein or necessary to make the statements, in light
of the circumstances under which they were made, not misleading and (ii) provide the Company with
such information as may be required to enable the Company to prepare a supplement or post-effective
amendment to any such Initial Registration Statement or a supplement to such Prospectus or Free
Writing Prospectus.
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(d) With respect to the Initial Registration Statement, to the extent it is utilized in
connection with an Underwritten Offering, the inclusion of a Holder’s Registrable Securities
therein shall be conditioned, at the managing underwriter’s request, upon the execution and
delivery by such Holder of an underwriting agreement; provided that the underwriting
agreement is in customary form and reasonably acceptable to Company and the Majority Selling
Holders of the Registrable Securities to be included in the Underwritten Offering.
(e) Each Selling Holder shall use reasonable best efforts to cooperate with the Company in
preparing the applicable Prospectus.
(f) Each Selling Holder agrees that no Holder of Registrable Securities shall be entitled to
sell any of such Registrable Securities pursuant to the Initial Registration Statement or to
receive a Prospectus relating thereto unless such Holder has furnished the Company with the
Questionnaire and Selling Holder Information relating to such Holder.
5.3 Suspension of Disposition
(a) Each Selling Holder agrees by acquisition of a Registrable Security that, upon receipt of
any written notice from the Company of the occurrence of any event of the type described in
Sections 5.1(d)(ii), 5.1(d)(iii), 5.1(d)(iv),5.1(d)(v) or
5.1(d)(vi), such Holder shall discontinue disposition of Registrable Securities covered by
the Initial Registration Statement, Prospectus or Free Writing Prospectus and suspend use of such
Prospectus or Free Writing Prospectus until such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 5.1(g) or until it is advised by the Company in
writing that the use of the applicable Prospectus or Free Writing Prospectus may be resumed and
until such Holder has received copies of any additional or supplemental filings that are
incorporated or deemed to be incorporated by reference in such Prospectus or Free Writing
Prospectus. In the event the Company shall give any such notice, the period of time for which the
Initial Registration Statement must remain effective pursuant to this Agreement shall 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 Selling Holder of Registrable Securities covered by such
Initial Registration Statement has received (i) the copies of the supplemented or amended
Prospectus or Issuer Free Writing Prospectus contemplated by Section 5.1(g) or (ii)
the advice referenced in this Section 5.3(a).
(b) Each Selling Holder shall be deemed to have agreed that, upon receipt of any notice from
the Company contemplated by Section 4.1, such Selling Holder shall discontinue disposition
of Registrable Securities covered by the Initial Registration Statement,
Prospectus or Free Writing Prospectus and suspend use of such Prospectus or Free Writing
Prospectus until the earlier to occur of the Holder’s receipt of (i) copies of a supplemented or
amended Prospectus or Issuer Free Writing Prospectus and (ii)(A) written notice from the Company
that the use of the applicable Prospectus or Issuer Free Writing Prospectus may be resumed and (B)
copies of any additional or supplemental filings that are incorporated or deemed to be incorporated
by reference in such Prospectus or Issuer Free Writing Prospectus; provided,
however, that in no event shall the number of days during which the offer and sale of
Registrable Securities is discontinued pursuant to this Section 5.3(b) during any
consecutive 12-month period, together with any other Blackout Periods in such consecutive 12-month
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period, exceed an aggregate of ninety (90) days. In the event the Company gives any such notice
contemplated by Section 4.1, the period of time for which the Initial Registration
Statement must remain effective pursuant to this Agreement shall be extended by the number of days
during the time period from and including the date of giving of such notice to and including the
date when each Selling Holder of Registrable Securities covered by such Initial Registration
Statement receives (i) the supplemented or amended Prospectus or Issuer Free Writing Prospectus or
(ii) written notice from the Company that use of the applicable Prospectus or Issuer Free Writing
Prospectus may resume.
(c) If so requested by the Company, each Holder shall deliver to the Company all copies in
such Holder’s possession, other than permanent file copies then in such Holder’s possession or as
may be required to be retained in accordance with applicable law, of the Prospectus covering such
Registrable Securities that was current at the time of receipt of notice from the Company of any
suspension contemplated by this Section 5.3.
5.4 Registration Expenses
(a) All fees and expenses incurred by the Company in complying with Articles III
Section 5.1 (“Registration Expenses”) shall be borne by the Company. These fees
and expenses shall include without limitation: (i) all registration, filing and qualification fees,
including fees incurred with the NASD, (ii) printing, duplicating and delivery expenses, (iii) fees
and disbursements of counsel for the Company, (iv) fees and expenses of complying with state
securities or “blue sky” laws (including the reasonable, documented fees and expenses of
the counsel specified in Section 5.4(b) in connection therewith), (v) fees and
disbursements of all independent certified public accountants referred to in Section
5.1(h)(ii) (including the expenses of any special audit and “comfort” letters required
by or incident to such performance) and (vi) fees and expenses in connection with listing the
Registrable Securities on the NYSE or quoting the Registrable Securities on the NASDAQ or any other
exchange or automated trading system in accordance with the other terms of this Agreement.
(b) The Company shall also reimburse or pay, as the case may be, the reasonable fees and
reasonable out-of-pocket expenses of one law firm retained by the Holders selected by DBSI, within
30 days of presentation of an invoice approved by DBSI; provided, however, that in
no event shall the Company be responsible for fees and expenses of any Holder’s counsel to the
extents such fees and expenses are incurred with respect to such Holder’s role as an underwriter in
connection with a registration pursuant to Article III.
(c) Notwithstanding the foregoing, the Company’s liability for all Transaction Expenses under
the EPCA, together with all Registration Expenses pursuant to clause (a) above and counsel fees
pursuant to clause (b) above incurred in connection with the Initial Registration Statement shall
not exceed $1,500,000.
(d) Notwithstanding anything contained herein to the contrary, all underwriting fees,
discounts, selling commissions and stock transfer taxes applicable to the sale of Registrable
Securities shall be borne by the Holder owning such Registrable Securities.
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ARTICLE VI
Indemnification
6.1 Indemnification by the Company. The Company agrees to indemnify and hold harmless
each Holder owning Registrable Securities registered pursuant to this Agreement, such Holder’s
Affiliates, and their respective officers, directors, employees and agents, and each Person, if
any, who controls any such Holder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act (collectively referred to for purposes of this Article VI as
a “Holder”), from and against any and all losses, claims, damages and liabilities (including
without limitation, subject to Section 6.3, the reasonable legal fees and other reasonable
out-of-pocket expenses incurred in investigating, responding to or defending against any claim,
challenge, litigation, investigation or proceeding, including without limitation, all out-of-pocket
expense of appearing as a witness in any claim, challenge, litigation, investigation or proceeding)
caused by any untrue statement or alleged untrue statement of a material fact contained in the
Initial Registration Statement pursuant to which any Registrable Securities were registered under
the Securities Act, Prospectus or preliminary prospectus or Issuer Free Writing Prospectus, or any
amendment thereof or supplement thereto, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary, in the case of any Prospectus
or Issuer Free Writing Prospectus, in light of the circumstances under which they were made, to
make the statements therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with information relating to any Holder furnished to the
Company in writing by such Holder expressly for use therein; provided, however,
that the Company shall not be liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged omission made in such
Initial Registration Statement, Prospectus, amendment, supplement or Free Writing Prospectus in
reliance upon and in conformity with written information furnished to the Company by such
participating Holder or any other Person who participates as an underwriter in the offering or sale
of such securities, in either case specifically stating that it is for use in the preparation
thereof. Such indemnity shall remain in full force and effect regardless of any investigation made
by or on behalf of any participating Holder or any such underwriter or controlling Person and shall
survive the transfer of such securities by the Holder.
6.2 Indemnification by Holders . Each Holder agrees, severally and not jointly, to
indemnify and hold harmless, the Company,
the directors, and officers of the Company and each Person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity contained in Section 6.1 from the Company to the Holders, as
incurred, but only with respect to information relating to such Holder furnished to the Company in
writing by such Holder expressly for use in the Initial Registration Statement, Prospectus or
preliminary prospectus or Issuer Free Writing Prospectus, or any amendment or supplement thereto.
Notwithstanding the provisions of this Section 6.2 or Section 6.4 below, in no
event shall any Holder be required to indemnify any person pursuant to this Article VI or
to contribute pursuant to Section 6.4 below in any amount in excess of the amount by which
the amount received by such Holder with respect to its sale of Registrable Securities pursuant to
the Initial Registration
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Statement exceeds the amount of any damages that such Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission made in connection with such sale.
6.3 Conduct of Indemnification Proceedings. If any claim, challenge, litigation,
investigation or proceeding (including any governmental or regulatory investigation) shall be
brought or asserted against any Person in respect of which indemnity may be sought pursuant to
either of Section 6.1 or Section 6.2, such Person (the “Indemnified Person”) shall
promptly notify the Person against whom such indemnity may be sought (the “Indemnifying Person”) in
writing; provided that (i) the omission to so notify the Indemnifying Person shall not
relieve it from any liability that it may have hereunder except to the extent it has been
prejudiced by such failure and (ii) the omission to so notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person otherwise than on account
of this Article VI. In case any such claim, challenge, litigation, investigation or
proceeding is brought against any Indemnified Person and it notifies the Indemnifying Person of the
commencement thereof, the Indemnifying Person shall be entitled to participate therein and, to the
extent that it may elect by written notice delivered to such Indemnified Person, to assume the
defense thereof and retain counsel reasonably satisfactory to the Indemnified Person to represent
the Indemnified Person and any others the Indemnifying Person may designate in such proceeding and
shall pay the reasonable fees and expenses of such counsel related to such proceeding. In any such
proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed in writing to the
contrary, (ii) the Indemnifying Person shall have failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person as contemplated by the preceding sentence or
(iii) the named parties in any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential conflicts of interests between them. It
is understood that the Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for the Holders and such
control Persons of the Holders shall be designated in writing by DBSI and any such separate firm
for the Company, the directors and officers of the Company and such control Persons of the
Company shall be designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any pending or threatened proceeding effected without its prior
written consent (which consent shall not be unreasonably withheld), but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify in accordance with, and subject to the limitations of, Section 6.1 and
Section 6.2 above, as the case may be, any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person shall, without the
prior written consent of the Indemnified Persons (which consent shall not be unreasonably
withheld), effect any settlement of any pending proceeding in respect of which any Indemnified
Person is a party or of any threatened proceeding in respect of which any Indemnified Person could
have been a party and indemnity could have been sought hereunder by such Indemnified Person, unless
such settlement (i) includes an unconditional release of such Indemnified Person from all liability
on claims that are the subject matter of such proceeding and (ii) does not include any statement as
to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
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6.4 Contribution, etc.
(a) If the indemnification provided for in this Article VI is unavailable to an
Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying
such Indemnified Person thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative fault of the Company on the one hand and of
such Holder on the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and such Holder on the other shall be determined
by reference to, among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company or by such Holder and the parties’ relevant intent, knowledge, information
and opportunity to correct or prevent such statement or omission.
(b) The Company and the Holders agree that it would not be just and equitable if contribution
pursuant to this Article VI were determined by pro rata allocation (even if the Holders
were treated as one entity for such purpose) or any other method of allocation that does not take
account of the equitable considerations referred to in this Section 6.4. The amount paid
or payable by an Indemnified Person as a result of losses, claims, damages and liabilities referred
to in this Section 6.4 shall be deemed to include, subject to the limitations set forth in
Sections 6.1, 6.2 and 6.3 above, any reasonable legal or other reasonable
out-of-pocket expenses incurred by such Indemnified Person not otherwise reimbursed in connection
with investigating or defending any such action or claim. Notwithstanding the provisions of this
Article VI, in no event shall any Holder be required to contribute any amount in excess of
the amount by which the amount received by such Holder with respect to its sale of Registrable
Securities pursuant to the Initial Registration Statement exceeds the amount of any damages that
such Holder 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) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
(c) The remedies provided for in this Article VI are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any Indemnified Person at law or in
equity.
(d) The indemnity and contribution agreements contained in this Article VI shall
remain operative and in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any Holder or any Person controlling any Holder or
by or on behalf of the Company, the officers or directors of each of the Company or any other
Person controlling the Company and (iii) the sale by a Holder of Registrable Securities covered by
the Initial Registration Statement.
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ARTICLE VII
Free Writing Prospectuses
Except as contemplated hereby, each Holder represents and agrees that it (i) shall not make
any offer relating to the Registrable Securities that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a Free Writing Prospectus, and (ii) has not
distributed and will not distribute any written materials in connection with the offer or sale of
Common Stock, in each case without the prior written consent of the Company and, in connection with
any Underwritten Offering, the underwriters. Any such Free Writing Prospectus consented to by the
Company and the underwriters, as the case may be, is hereinafter referred to as a “Permitted Free
Writing Prospectus.” The Company represents and agrees that it has treated and will treat, as the
case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, including
in respect of timely filing with the SEC, legending and record keeping. The Company represents and
agrees that it shall not make any offer relating to the Registrable Securities that would
constitute an Issuer Free Writing Prospectus or that would otherwise constitute a Free Writing
Prospectus in connection with the offer or sale of Registrable Securities without the prior written
consent of DBSI and SP and, in connection with any Underwritten Offering, the underwriters.
ARTICLE VIII
Rule 144
With a view to making available the benefits of certain rules and regulations of the SEC which
may permit the sale of Registrable Securities to the public without registration, the Company
agrees to (a) use its reasonable best efforts to file with the SEC in a timely manner all reports
and other documents required of the Company under the Securities Act and the Exchange Act; (b) upon
written request of any Holder of Registrable Securities, furnish to such Holder promptly a written
statement by the Company as to its compliance with the reporting requirements of Rule 144 and of
the Securities Act and the Exchange Act, and such other reports and documents as any Holder
reasonably may request in availing itself of any rule or regulation of the SEC allowing such Holder
to sell any Registrable Securities without registration; and (c)
take such other actions as may be reasonably required by the Company’s transfer agent to
consummate any distribution of Registrable Securities that may be permitted in accordance with the
terms and conditions of Rule 144.
ARTICLE IX
Private Placement
The Company agrees that nothing in this Agreement shall prohibit the Holders, at any time and
from time to time, from selling or otherwise transferring Registrable Securities pursuant to a
private placement or other transaction which is not registered pursuant to the Securities Act.
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ARTICLE X
Miscellaneous
10.1 Notices. All notices and other communications in connection with this Agreement
shall be in writing and shall be deemed given by (and shall be deemed to have been duly given) as
follows: (i) at the time delivered by hand, if delivered personally; (ii) when sent via facsimile
(with confirmation); (iii) five Business Days after being deposited in the mail, if sent postage
prepaid, by registered or certified mail (return receipt requested); or (iv) on the next Business
Day, if timely delivered to an express courier guaranteeing overnight delivery (with confirmation).
Notices shall be directed to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice):
| (a) | If to: | |||||
| Xxxxx Lemmerz International, Inc. | ||||||
| 00000 Xxxxxxxxxx Xxxxx | ||||||
| Xxxxxxxxxx, XX 00000 | ||||||
| Facsimile: (000) 000-0000 | ||||||
| Attention: Xxxxx X. Xxxx and Xxxxxxx Xxxxxx | ||||||
| with a copy to: | ||||||
| Skadden, Arps, Slate, Xxxxxxx & Xxxx | ||||||
| LLP | ||||||
| Xxx Xxxxxx Xxxxxx | ||||||
| X.X. Xxx 000 | ||||||
| Xxxxxxxxxx, XX 00000 | ||||||
| Facsimile: (000) 000-0000 | ||||||
| Attention: Xxxxxx X. Xxxxxx | ||||||
| (b) | If to: | |||||
| Deutsche Bank Securities Inc. | ||||||
| 00 Xxxx Xxxxxx, 00xx Xxxxx | ||||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||||
| Facsimile: (000) 000-0000 | ||||||
| Attention: Xxx Xxxxx and Xxxxxxx X. Xxxxxxxx | ||||||
| with a copy to: | ||||||
| White & Case LLP | ||||||
| 0000 Xxxxxx xx xxx Xxxxxxxx | ||||||
| Xxx Xxxx, Xxx Xxxx 00000-0000 | ||||||
| Facsimile: (000) 000-0000 | ||||||
| Attention: Xxxxxx Xxxx and Xxxxx Xxxxxxx |
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| (c) | If to: | |||||
| SPCP Group, LLC | ||||||
| Two Xxxxxxxxx Xxxxx | ||||||
| Xxxxx Xxxxx | ||||||
| Xxxxxxxxx, XX 00000-0000 | ||||||
| Facsimile: (000) 000-0000 and (000) 000-0000 | ||||||
| Attention: Xxxx Xxxxxxxx and Xxxx Xxxxxx, Esq. | ||||||
| with a copy to: | ||||||
| Stroock & Stroock & Xxxxx LLP | ||||||
| 000 Xxxxxx Xxxx | ||||||
| Xxx Xxxx, XX 00000 | ||||||
| Facsimile: (000) 000-0000 | ||||||
| Attention: Xxxxx Xxxxxxxx |
(d) If to any Investor (other than DBSI and SP) to the address and facsimile number set forth
on the signature pages hereto, or the signature page of any joinder agreement executed and
delivered pursuant to Section 10.2.
10.2 Additional Investors. Each Person who is a party to any Additional Investor
Agreement executed prior to the consummation of the transactions contemplated by the EPCA, shall be
deemed to be an Investor upon execution and delivery of a joinder agreement in the form of
Exhibit B (the “Joinder Agreement”). Only Persons (other than the initial
signatories hereto) that execute a Joinder Agreement shall be deemed to be Investors. Except to
the extent limited in any other joinder agreement, each Person that so becomes an Investor after
the date hereof shall be entitled to all rights and privileges of an Investor as if such Investor
had been an original signatory to this Agreement.
10.3 Other Registration Rights. [INTENTIONALLY LEFT BLANK]
10.4 Severability. If any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity and enforceability
of the remaining provisions of this Agreement, unless the result thereof would be unreasonable in
which case the parties hereto shall negotiate in good faith as to appropriate amendments hereto.
10.5 Assignment. This Agreement shall be binding upon, inure to the benefit of and be
enforceable by each of the parties and their respective successors and assigns; provided,
however, that neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned or delegated by a Holder to any third party who purchases Registrable
Securities from the Holder, provided, however, that this Agreement and the rights,
interests and obligations hereunder may be assigned, transferred or delegated by an Investor to any
Affiliate of such Investor (provided, further, that any such transferee or assignee
assumes the obligations of such Investor hereunder and agrees in writing to be bound by the terms
of this Agreement in the same manner as the Investor pursuant to a properly completed agreement
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substantially in the form of Exhibit C). Notwithstanding the foregoing, DB and SP may each
assign the rights, interests and obligations under this Agreement to one third party (who may be a
different third party with respect to a sale by DB and a sale by SP) who purchases no less than 10
million Qualified Registrable Securities from either of such Persons provided that (i) such
transferee of the Qualified Registrable Securities that is not a party to this Agreement shall have
executed and delivered to the Secretary of the Company a properly completed agreement substantially
in the form of Exhibit C), and (ii) the Holder selling the Qualified Registrable Securities
shall have delivered to the Secretary of the Company written notice of such transfer setting forth
the name of such Holder, the name and address of the transferee and the number of Registrable
Securities that shall have been so transferred. This Agreement (including the documents and
instruments referred to in this Agreement) is not intended to and does not confer upon any Person
any rights or remedies under this Agreement other than the parties hereto and any Indemnified
Person, each of which is an intended third-party beneficiary hereof.
10.6 Entire Agreement. This Agreement (including the documents and instruments
referred to in this Agreement) constitutes the entire agreement of the parties and supersedes all
prior agreements and understandings, whether written or oral, between the parties with respect to
the subject matter of this Agreement (including the Amended and Restated Registration Rights
Agreement among the parties dated as of April 16, 2007). Notwithstanding the foregoing, the
parties hereto acknowledge that any confidentiality agreements heretofore executed among the
parties shall continue in full force and effect.
10.7 Waivers and Amendments. This Agreement may be amended, modified, superseded, cancelled, renewed or extended, and
the terms and conditions of this Agreement may be waived, only by a written instrument, (A) signed
by (i) the Company, and (ii) holders of a majority of the Registrable Securities; provided
that without the consent of DBSI and SP, no provision of this Agreement relating to the rights of
DBSI and SP, respectively, with respect to registration of its Registrable Securities hereunder,
shall be modified or amended or (B) in the case of a waiver, by the party waiving compliance. No
delay on the part of any party in exercising any right, power or privilege pursuant to this
Agreement shall operate as a waiver thereof, nor shall any waiver on the part of any party of any
right, power or privilege pursuant to this Agreement, nor shall any single or partial exercise of
any right, power or privilege pursuant to this Agreement, preclude any other or further exercise
thereof or the exercise of any other right, power or privilege pursuant to this Agreement. The
rights and remedies provided pursuant to this Agreement are cumulative and are not exclusive of any
rights or remedies which any party otherwise may have at law or in equity.
10.8 Counterparts. This Agreement may be executed in any number of counterparts, all
of which shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each of the parties and delivered to the other party (including
via facsimile or other electronic transmission), it being understood that each party need not sign
the same counterpart.
10.9 Governing Law; Venue. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE. EACH PARTY TO THIS AGREEMENT
IRREVOCABLY SUBMITS TO THE JURISDICTION OF, AND VENUE IN, THE DISTRICT COURTS OF THE UNITED STATES
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SITTING IN THE STATE OF DELAWARE OR THE COURTS OF THE STATE OF DELAWARE AND WAIVES ANY OBJECTION
BASED ON FORUM NON CONVENIENS.
10.10 Headings. The headings in this Agreement are for reference purposes only and
shall not in any way affect the meaning or interpretation of this Agreement.
10.11 Specific Performance. The parties acknowledge and agree that any breach of the
terms of this Agreement would give rise to irreparable harm for which money damages would not be an
adequate remedy, and, accordingly, the parties agree that, in addition to any other remedies, each
will be entitled to enforce the terms of this Agreement by a decree of specific performance without
the necessity of proving the inadequacy of money damages as a remedy and without the necessity of
posting bond.
10.12 Termination. This Agreement may be terminated at any time by a written instrument signed by the parties
hereto and shall also terminate automatically and be of no further force and effect in the event
that the EPCA is terminated in accordance with its terms. Unless sooner terminated in accordance
with the preceding sentence, this Agreement (other than the first proviso in Section
5.1(i), Section 5.4, Article VI and Article IX hereof) shall terminate
(i) if at any time after the date hereof, there are no Qualified Registrable Securities outstanding
and (ii) with respect to any particular Holder, at such time when all of the Qualified Registrable
Securities held by that Holder can be sold during a three-months period under Rule 144. In
connection with any sales of Common Stock pursuant hereto, each Holder shall be deemed to have sold
Qualified Registrable Securities prior to any sales of Registrable Securities.
10.13 No Conflicting Rights. The Company shall not, on or after the date hereof,
grant any registration or similar rights to any Person or amend any existing registration or
similar rights previously granted by the Company, if such grant or amendment would conflict with or
impair in any material respect the rights granted hereby.
[Signature Page Follows]
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IN WITNESS WHEREOF, each of the parties has executed this Agreement as of the date first
written above.
| XXXXX LEMMERZ INTERNATIONAL, INC. | ||||||
| By: | ||||||
| Title: Vice President, Finance and Chief Financial Officer | ||||||
| INVESTORS | ||||||
| DEUTSCHE BANK SECURITIES INC. | ||||||
| By: | ||||||
| Title: | ||||||
| By: | ||||||
| Title: | ||||||
| SPCP GROUP, LLC | ||||||
| By: | ||||||
| Title: Authorized Person | ||||||
| Each Investor party to any Additional Investor | ||||||
| Agreement who shall sign a Joinder Agreement | ||||||
| pursuant to Section 10.2 hereof. | ||||||
