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Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Registration Rights
Agreement"), dated as of July 8, 1991 among THE HORN & HARDART COMPANY, a Nevada
corporation ("H&H"), NORTH AMERICAN RESOURCES LIMITED, a British Virgin Islands
Corporation ("NAR"), and Intercontinental Mining & Resources Limited, a Delaware
corporation and indirect wholly-owned subsidiary of NAR ("IMR").
R E C I T A L S :
A. H&H, The Hanover Companies, a Nevada corporation and a
wholly-owned subsidiary of H&H ("Hanover"), and NAR are parties to a Stock
Purchase Agreement, dated as of July 8, 1991 (as modified, amended and
supplemented and in effect from time to time, the "Stock Purchase Agreement"),
providing, inter alia, subject to the terms and conditions thereof, (i) for the
issuance and sale by Hanover to NAR of 40,000 shares of its 8% Cumulative
Preferred Stock, par value $.0l per share (the "Hanover Preferred Shares") and
(ii) the issuance and sale by H&H to NAR of 13,333,334 shares of its Class B
Common Stock, par value $.0l per share (the "Company Class B Common Stock").
B. H&H is the registered and beneficial owner of all the issued and
outstanding shares of common stock, par value $1.00 per share, of Hanover (the
"Hanover Common Stock").
C. H&H and NAR are expected to be parties to an Exchange and Option
Agreement to be dated as of the closing date under the Stock Purchase Agreement
(the "Exchange and Option Agreement"), providing, subject to the terms and
conditions thereof, for NAR's option to purchase 13,333,334 shares (as adjusted
in accordance therewith) of Common Stock, par value $.66 2/3 per share, of H&H
(the "Common Stock") by exchanging the Hanover Preferred Shares and Company
Class B Common Stock owned by it.
D. IMR and several direct or indirect wholly-owned subsidiaries of
H&H are parties to a $30,000,000 secured Revolving Credit and Letter of Credit
Facility of even date herewith (the "Working Capital Facility").
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E. It is a condition precedent to the execution and delivery of the
Working Capital Facility and to the issue and sale of the Hanover Preferred
Shares and the Company Class B Common Stock and the transactions contemplated by
the Stock Purchase Agreement and the closing thereunder that this Registration
Rights Agreement be executed and delivered by H&H, IMR and NAR.
F. Each of H&H, IMR and NAR desire to enter into this Registration
Rights Agreement to satisfy the conditions described in the preceding paragraphs
and for the further purposes herein set forth.
A G R E E M E N T :
The parties agree as follows:
Section 1. Defined Terms; Effectiveness of Registration Rights.
1.1 Defined Terms. Capitalized terms used and not defined herein and
defined in the Stock Purchase Agreement shall have the meanings therein
indicated. In addition to such terms defined therein and such terms as are
otherwise defined herein, the following terms shall have the following meanings;
"Inspectors" has the meaning attributed thereto in Section 5.
"Option" has the meaning attributed thereto in the Exchange and
Option Agreement.
"Other Securities" has the meaning attributed thereto in 3.1.
"Records" has the meaning attributed thereto in Section 5.
"Registrable Securities" means (i) shares of Common Stock of H&H
issued to NAR pursuant to the terms of the Exchange and Option Agreement, (ii)
shares of Common Stock of H&H acquired upon the exercise of warrants or other
securities issued to NAR or its wholly-owned subsidiary in accordance with
Section 4.17 of the Stock Purchase Agreement, (iii) shares of Common Stock of
H&H acquired upon the exercise of warrants issued and granted to IMR or other
direct or indirect wholly-owned subsidiaries of NAR in connection with the
Working Capital Facility, (iv) warrants or other securities issued to NAR, IMR
or any direct or indirect wholly-owned subsidiaries of NAR pursuant to the
Working Capital Facility or pursuant to section 4.17 of the
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Stock Purchase Agreement, and (v) any securities of H&H distributed with respect
to shares of its Common Stock.
"Registration Expenses" means all expenses incident to H&H's
performance of or compliance with the registration and other requirements set
forth in this Registration Rights Agreement including, without limitation, the
following: (i) the fees, disbursements and expenses of all, counsel to H&H and
all accountants in connection with the registration statement, any preliminary
prospectus or final prospectus, any other offering documents and amendments and
supplements thereto and the mailing and delivery of copies thereof to
underwriters and dealers; (ii) all expenses in connection with the preparation,
printing and filing of the registration statement, any preliminary prospectus or
final prospectus, any other offering document and amendments and supplements
thereto and the mailing and delivery of copies thereof to underwriters and
dealers; (iii) the cost of printing or producing any agreement(s) among
underwriters, underwriting agreement(s) and blue sky or legal investment
memoranda, any selling agreements and any other documents in connection with the
offering, sale or delivery of the Registrable Securities to be disposed of; (iv)
all expenses in connection with the qualification of the Registrable Securities
to be disposed of for offering and sale under state securities laws, including
the fees and disbursements of counsel for the underwriters in connection with
such qualification and in connection with any blue sky and legal investment
surveys; (v) the filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Registrable Securities to be disposed of; (vi) the cost and charges of any
transfer agent or registrar in connection with the registration of exchange or
transfer of the Registrable Securities to be disposed of; and (vii) all stock
exchange listing fees.
"Total Number of Includible Securities" has the meaning attributed
thereto in Section 3.1(b).
1.2 Effectiveness of Registration Rights. The registration rights
pursuant to Sections 2 and 3 hereof shall become effective on the date hereof
and continue so long as IMR shall hold warrants to purchase H&H Common Shares or
Common Shares and so long as NAR has the right to receive Registrable Securities
pursuant to the Exchange and Option Agreement and after NAR has exercised the
Option, so long as Registrable Securities are held by NAR, IMR or its
wholly-owned subsidiaries or a permitted assign.
1.3 Registration Not Required. H&H shall not be obligated to effect
any registration pursuant to Section 2.1 or Section 3.1 hereof if, in the
written opinion of counsel
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to H&H who shall be reasonably satisfactory to NAR and which opinion shall be
concurred in by counsel to NAR, the intended method or methods of disposition of
any Registrable Securities by NAR or IMR may be effected without registration
under the Securities Act and without restriction as to subsequent trading.
Section 2. Registration on Request.
2.1 Notice. Upon written notice from either NAR or IMR or upon a
joint written request from NAR and IMR requesting that H&H effect the
registration under the Securities Act of all or a portion of the Registrable
Securities beneficially owned by it, which notice shall specify the intended
method or methods of disposition of such Registrable Securities, H&H shall use
its best efforts to effect as promptly as practicable and without restriction as
to subsequent trading the registration, under the Securities Act, of such
Registrable Securities for disposition in accordance with the intended method or
methods of disposition stated in such request, provided that:
(a) if, in the reasonable judgment of H&H, a registration at the
time and on the terms requested would adversely affect any public
financing by H&H that had been firmly planned by H&H prior to the notice
by NAR and/or IMR, as the case may be, requesting registration, H&H shall
not be required to commence using its best efforts to effect a
registration pursuant to this Section 2 until 180 days after completion of
such financing or 90 days after the abandonment of such financing;
(b) H&H shall not be required to file a registration statement if,
as a result, H&H would be required to include in such registration
statement (i) audited financial statements as of any date other than a
fiscal year end or any other date as of which H&H shall have audited
financial statements or (ii) pro forma financial statements pursuant to
Regulation S-X under the Securities Act if such pro forma statements
cannot be reasonably prepared in a timely fashion, until such audited
financial statements or such pro forma financial statements have been
prepared; provided that H&H shall use its reasonable efforts to prepare on
a timely basis any audited financial statements or pro forma financial
statements required to be included;
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(c) if H&H determines in the good faith judgment of H&H's general
counsel that the filing of a registration statement would require the
disclosure of material information which H&H has a good faith business
purpose for preserving as confidential or H&H is unable to comply with
Commission requirements, H&H shall not be required to commence using its
best efforts to effect a registration pursuant to this Section 2 until the
earlier of (i) the date upon which such material information is disclosed
to the public (it being understood that nothing herein shall require such
disclosure) or ceases to be material or (ii) 60 days after H&H makes such
good faith determination;
(d) H&H shall not, without the consent of NAR or IMR, include any
securities for sale for its own account or the account of others in any
registration statement filed pursuant to section 2; and
(e) NAR and IMR shall together have the right to exercise
registration rights pursuant to this Section 2.1 one time.
If in any case H&H shall under any of foregoing clauses (a) through (e) postpone
the filing of a registration statement requested by NAR or IMR, NAR or IMR, as
the case may be, shall have the right for 30 days after receipt of the notice of
postponement to withdraw the request for registration by giving written notice
to H&H, and in the event of such withdrawal such request shall not be counted
under the foregoing clause (e) to this Section 2.1. In addition, in no event
shall a registration request be counted if all the Registrable Securities with
respect to which a request is made are not registered pursuant to an effective
registration statement.
2.2 Registration Expenses. H&H shall pay or cause to be paid all
Registration Expenses in connection with the exercises of registration rights
pursuant to this Section 2; provided that with respect to any such registration
NAR or IMR, as the case may be, shall bear any transfer taxes applicable to its
Registrable Securities registered thereunder, all commissions, discounts or
other compensation payable to any underwriters (including fees and expenses of
underwriters' counsel other than those referred to in clause (iv) of the
definition of Registration Expenses) in respect of such Registrable Securities
and the fees and expenses of its own counsel; and provided further that in no
event shall NAR or IMR, as the case may be, be required to pay any internal
costs of H&H.
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Section 3. Incidental Registration.
3.1 Notice and Registration. If H&H proposes to register any of its
voting securities ("Other Securities") for public sale under the Securities Act,
on a form and in a manner which would permit registration of Registrable
Securities for sale to the public under the Securities Act, it will give prompt
written notice to NAR and IMR of its intention to do so, and upon the written
request of NAR or IMR or upon the joint written request of NAR and IMR, as the
case may be, delivered to H&H within 10 business days after the giving of any
such notice (which request shall specify the Registrable Securities intended to
be disposed of by NAR, IMR or both, as the case may be, and the intended method
of disposition thereof) H&H will use its best efforts to effect, in connection
with the registration of the Other Securities, the registration under the
Securities Act of all Registrable Securities which H&H has been so requested to
register by NAR and/or IMR, as the case may be, to the extent required to permit
the disposition (in accordance with the intended method or methods thereof as
aforesaid) of the Registrable Securities so to be registered, provided that:
(a) if, at any time after giving such written notice of its
intention to register any Other Securities and prior to the effective date
of the registration statement filed in connection with such registration,
H&H shall determine for any reason not to register the Other Securities,
H&H may, at its election, give written notice of such determination to NAR
and/or IMR, as appropriate, and thereupon H&H shall be relieved of its
obligations to register such Registrable Securities in connection with the
registration of such Other Securities (but not from its obligation to pay
Registration Expenses to the extent incurred in connection therewith as
provided in Section 3.2), without prejudice, however, to the rights, if
any, of NAR and/or IMR immediately to request that such registration be
effected as a registration under Section 2;
(b) H&H will not be required to effect any registration of
Registrable Securities under this Section 3 if, and to the extent that,
the underwriters (or any managing underwriter) shall advise H&H in writing
that, in their reasonable opinion, inclusion of such number of shares of
Registrable Securities will adversely affect the price or distribution of
the securities to be offered solely for the account of H&H. Such
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advice shall include a statement as to the underwriters' (or any managing
underwriter's) opinion as to the number of shares which may be included
without adversely affecting the price or distribution of the securities
solely for the account of H&H (such total number of shares which such
advice states may be so included being the "Total Number of Includible
Securities"). H&H shall promptly furnish NAR and/or IMR, as appropriate,
with a copy of such written advice. In the event that the number of shares
requested to be included by NAR and/or IMR together with the number of
other shares requested to be included by any selling security holders
requesting inclusion of such security holders' securities pursuant to
registration rights granted by H&H exceeds the Total Number of Includible
Securities, the aggregate number of shares of Registrable Securities held
by NAR and/or IMR entitled to be included in the public sale shall be the
product of (A) a fraction, the numerator of which is the total number of
such shares of Registrable Securities held by NAR and/or IMR requested to
be included in such public sale and the denominator of which is the total
number of NAR's and/or IMR's shares of Registrable Securities requested
to be included in such public sale plus the number of other shares
requested to be included by other securityholders pursuant to registration
rights granted by H&H and (B) the Total Number of Includible Securities.
(c) H&H shall not be required to effect any registration of
Registrable Securities under this section 3 incidental to the registration
of any at its securities in connection with mergers, acquisitions,
exchange offers, dividend reinvestment plans or stock option or other
employee benefit plans.
No registration of Registrable Securities effected under this Section 3 shall
relieve H&H of its obligation, if any, to affect the registration of Registrable
Securities pursuant to section 2.
3.2 Registration Expenses. H&H will pay all Registration Expenses in
connection with any registration pursuant to this Section 3; provided that with
respect to any such registration NAR and/or IMR, as the case may be, shall bear
all transfer taxes applicable to its Registrable Securities registered
thereunder, its pro rata share of all commissions, discounts or other
compensation payable to any underwriters (including fees and expenses of
underwriters'
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counsel other than those referred to in clause (iv) of the definition of
Registration Expenses) in respect of such Registrable Securities and the fees
and expenses of its own counsel, the fees associated with the filing under state
securities laws of the Registrable Securities in states and in amounts in
respect of which H&H would not otherwise have made such filings and any
Commission filing fees related solely to the Registrable Securities NAR or IMR,
as the case may be, has requested be registered; and provided, further, that in
no event shall NAR or IMR be required to pay any internal costs of H&H.
Section 4. Registration Procedures.
4.1 Registration and Qualification.
(a) If and whenever H&H is required to use its best efforts to
effect the registration of any Registrable Securities under the Securities Act
as provided in Sections 2 and 3, H&H will as promptly as is practicable:
(i) prepare, file and use its best efforts to cause to become
effective a registration statement under the Securities Act regarding the
Registrable Securities to be offered;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Securities until
the earlier of such time as all of such Registrable Securities have been
disposed of in accordance with the intended methods of disposition by NAR
or IMR, as set forth in such registration statement or the expiration of
six months after such registration statement becomes effective;
(iii) furnish to NAR and IMR and to any underwriter of such
Reqistrable Securities such number of conformed copies of such
registration statement and of each such amendment and supplement thereto
(in the case of NAR and IMR or any managing underwriter, including all
exhibits), such number of copies of the prospectus included in such
registration statement (including each preliminary prospectus and any
summary prospectus) or filed under the Securities Act, in conformity with
the requirements of the Securities Act, such documents as may be
incorporated by reference in
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such registration statement or prospectus, and such other documents, as
NAR, IMR or such underwriter may reasonably request;
(iv) use its best efforts to register or qualify all Registrable
Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as NAR, IMR or any
underwriter of such Registrable Securities shall reasonably request, and
do any and all other acts and things which may be necessary or advisable
to enable NAR, IMR or any underwriter to consummate the disposition in
such jurisdictions of its Registrable Securities covered by such
registration statement, except that H&H shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in
any jurisdiction wherein it is not so qualified, or to subject itself to
taxation in any such jurisdiction, or to consent to general service of
process in any such jurisdiction;
(v) in the case of any underwritten offering, furnish to NAR and
IMR, as appropriate, and the underwriters, addressed to them, (A) an
opinion of counsel for H&H, dated the date of the closing under the
underwriting agreement relating to any underwritten offering, and (B) a
comfort letter signed by the independent public accountants who have
certified H&H's financial statements included in such registration
statement, covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the
case of such accountants' letter, with respect to events subsequent to the
date of such financial statements, as are customarily covered in opinions
of issuer's counsel and in accountants' letters, respectively, delivered
to underwriters in underwritten public offerings of securities and such
other matters as NAR or IMR may reasonably request;
(vi) immediately notify NAR and IMR at any time when a prospectus
relating to a registration pursuant to Section 2 or 3 is or was required
to be delivered under the Securities Act, of the happening of any event as
a result of which the prospectus included in such registration statement,
as then in effect, includes or included an untrue statement of a material
fact or omits or omitted to state any material fact required to be stated
therein or necessary, in the light of the
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circumstances then existing, to make the statements therein not
misleading, and at the request of NAR or IMR prepare and furnish to NAR or
IMR a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary, in light of the
circumstances then existing, to make the statements therein not
misleading; and
(vii) use reasonable efforts to do any and all other acts NAR or IMR
may reasonably request and which are customary for a registration of
equity securities.
H&H may require NAR or IMR to furnish such information regarding NAR or IMR and
the distribution of such securities as H&H may from time to time reasonably
request in writing and as shall be required by law or by the Commission in
connection with any registration.
(b) Each of NAR and IMR agree that, upon receipt of any notice from
H&H of the happening of any event of the kind described in Section 4.1(a) (vi)
hereof, NAR or IMR, as the case may be, shall use its best efforts to
discontinue forthwith disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until NAR's or IMR's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 4.1(a) (vi) hereof.
4.2 Listing of Common Stock. Upon the request of NAR or IMR in
connection with any public offering of the Common Stock, H&H shall use its best
efforts to effect, as promptly as is practicable, the listing of the Common
Stock on the Amex and all other national securities exchanges on which H&H's
Common Stock shall then be listed.
4.3 Underwriting.
(a) If requested by the managing underwriter for any underwritten
offering of Registrable Securities pursuant to a registration requested
hereunder, H&H will enter into an underwriting agreement with the underwriters
for such offering, such agreement to contain such representations and warranties
by H&H and such other terms and provisions as are customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution to the effect pro-
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vided in Section 6 hereof and the provision of opinions of counsel and
accountants letters to the effect provided in Section 4.1(a) (v) hereof. NAR
and/or IMR, as appropriate, shall be a party to any such under-writing agreement
and the representations and warranties by, and the other agreements on the part
of, H&H to and for the benefit of such underwriters, shall also be made to and
for the benefit of NAR and/or IMR.
(b) In the event that any registration pursuant to Section 3 shall
involve, in whole or in part, an underwritten offering, H&H may require the
Registrable Securities requested to be registered pursuant to Section 3 by NAR
or IMR to be included in such underwriting on the same terms and conditions as
shall be applicable to the Other Securities being sold through underwriters
under such registration. In any such case, NAR and/or IMR shall be party to any
such underwriting agreement. Such agreement shall contain such representations,
warranties and covenants by NAR or IMR, as appropriate, and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, indemnities and
contribution to the effect provided in Section 6 hereof. The representations and
warranties in such underwriting agreement by, and the other agreements on the
part of, H&H to and for the benefit of such underwriters, shall also be made to
and for the benefit of NAR and IMR, as appropriate.
Section 5. Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement registering
Registrable Securities under the Securities Act, H&H will give NAR, IMR and the
underwriters, if any, and their respective counsel and accountants
(collectively, the "Inspectors"), such reasonable and customary access to its
books and records (collectively, the "Records") and such opportunities to
discuss the business of H&H with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of NAR, IMR and such underwriters or their respective counsel, to
conduct a reasonable investigation within the meaning of the Securities Act.
Records which H&H reasonably determines to be confidential and which it notifies
the Inspectors in writing are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary or appropriate
to avoid or correct a misstatement or omission in the registration statement,
(ii) the portion of the Records to be disclosed has otherwise become publicly
known, (iii) the information in such Records is to be used in connection with
any litigation or governmental investigation or hearing relating to any
registration statement or (iv) the release of such Records
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is ordered pursuant to a subpoena or other order. NAR and IMR each agree that it
will, upon learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to H&H.
Section 6. Indemnification and Contribution.
(a) Indemnification by H&H. H&H agrees to indemnify and hold
harmless each Person who participates as an underwriter, NAR, IMR, each of their
respective officers and directors and each Person, if any, who controls any such
underwriter, NAR or IMR within the meaning of Section 15 of the Securities Act
as follows:
(i) against any and all loss, claim, damage and expense whatsoever,
as incurred, arising out of or caused by any untrue statement or alleged
untrue statement of a material fact contained in any registration
statement (or any amendment thereto) pursuant to which Registrable
Securities were registered under the Securities Act, including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material tact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any prospectus (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
Governmental Body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is effected with the
written consent of H&H ; and
(iii) against any and all expense whatsoever, as incurred (including
fees and disbursements of counsel chosen by NAR or any underwriter),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any Governmental Body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or
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omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under clause (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of or caused by
any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to H&H by NAR
and/or IMR, as the case may be, or any underwriter expressly for use in a
registration statement (or any amendment thereto) or any prospectus (or any
amendment or supplement thereto); and further provided that this indemnity
agreement does not apply to any loss, liability, claim, damage or expense
arising out of or caused by NAR's or IMR's continued circulation, subsequent to
NAR's or IMR's, as the case nay be, receipt of the notice described in Section
4.1(a) (vi) hereof, of a prospectus including the untrue statement of a material
fact or omission of a material fact as to which such notice was provided.
(b) Indemnification by NAR or IMR. NAR and IMR agree to indemnify
and hold harmless H&H and any underwriter, and each of their respective
directors and officers (including each officer of H&H who signed the
registration statement), and each Person, if any, who controls H&H or any
underwriter within the meaning of Section 15 of the Securities Act, against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in Section 6(a) hereof, as incurred, with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
registration statement (or any amendment thereto) or any prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to H&H by NAR or IMR expressly for use in the
registration statement (or any amendment thereto) or such prospectus (or any
amendment or supplement thereto).
(c) Indemnification by Underwriter. Anything in section 6(a) to the
contrary notwithstanding, H&H's obligation to indemnify any underwriter pursuant
to Section 6(a) in an underwritten offering (or any Person controlling such
underwriter within the meaning of Section 15 of the Securities Act) shall be
conditioned upon the underwriting agreement with such underwriter containing an
agreement by such underwriter to indemnify and hold harmless H&H, NAR and IMR,
and each of their respective directors and officers (including each officer of
H&H who signed the registration statement) and each Person, if any, who controls
H&H, NAR and IMR, within the meaning of Section 15 of the securities Act,
against any and all loss, liability claim, damage and
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expense described in the indemnity contained in Section 6(a) hereof, as
incurred, with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the registration statement (or any amendment
thereto) or any prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to H&H by such
underwriter expressly for use in the registration statement (or any amendment
thereto) or such prospectus (or any amendment or supplement thereto).
(d) Conduct of Indemnification Proceedings. Each indemnified party
shall give prompt notice to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure so
to notify an indemnifying party shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. An indemnifying
party may, at its own expense, participate in and direct the defense of such
action. In no event shall the indemnifying parties be liable for the fees and
expenses of more than one counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
(e) Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section 6 is for any reason held to be unenforceable although applicable in
accordance with its terms, H&H NAR, IMR and any underwriter shall contribute to
the aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by H&H, NAR, IMR and any
underwriter, in such proportions that the underwriters are responsible for that
portion represented by the percentage that the underwriting discount appearing
on the cover page of the prospectus bears to the public offering price appearing
thereon and H&H, NAR and IMR, as the case may be, are responsible for the
balance; provided, however, that 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. As between H&H on the one hand and NAR and/or IMR
on the other hand, such parties shall contribute to the aggregate losses,
liabilities claims, damages and expenses of the nature contemplated by such
indemnity agreement in such proportion as shall be appropriate to reflect (i)
the relative benefits received by H&H, on the one hand, and NAR and/or IMR on
the other hand, from the offering of the Registrable Securities and any other
securities included in such offering, and (ii) the relative fault of H&H, on the
one hand, and NAR and/or IMR on the other, with respect to the statements or
omissions
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which resulted in such loss, liability, claim, damage or expense, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by H&H, on the one hand, and NAR and/or IMP on the
other, with respect to such offering shall be deemed to be in the same
proportion as the sum of the total purchase price paid to H&H by NAR and/or IMP,
as the case may be, in respect of the Registrable Securities plus the total net
proceeds from the offering of any securities included in such offering (before
deducting expenses) received by H&H bears to the amount by which the total net
proceeds from the offering of Registrable Securities (before deducting expenses)
received by NAR and/or IMR, as the case may be, with respect to such offering
exceeds the purchase price paid to H&H in respect of the Registrable Securities,
and in each case the net proceeds received from such offering shall be
determined as set forth on the table to the cover page of the prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by H&H, NAR or
IMR, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
H&H, NAR and IMR agree that it would not be just and equitable if contribution
pursuant to this Section 6 were to be determined by pro rata allocation or by
any other method of allocation which does not take into account the equitable
considerations referred to herein. For purposes of this Section 6, each Person,
if any, who controls NAR or IMR or an underwriter within the meaning of Section
15 of the Securities Act shall have the same rights to contribution as NAR, IMR
or such underwriter, and each director of H&H, each officer of H&H who signed
the registration statement, and each Person, if any, who controls H&H within the
meaning of Section 15 of the securities Act shall have the same rights to
contribution as H&H.
Section 7. Permitted Assignment. NAR or IMR may assign rights
hereunder in connection with any sale of Registrable Securities provided that
such assignee shall have agreed in writing, satisfactory in form and substance
to H&H and its counsel, to be bound hereby. Rights hereunder assigned by NAR or
IMR to any other Person shall not be further assignable by such other Person
other than to a successor to all or substantially all of such other Person's
business which successor shall have agreed in writing to be bound hereby. From
and after any such assignment pursuant to this Section 7, reference herein to
NAR or IMR, as the case may be, shall include such permitted assignee or
assignees and nothing contained in this Section
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shall increase the number of registrations required to be made by H&H hereunder.
Section 5. Miscellaneous.
8.1 Severability. If any term, provision, covenant, restriction,
part or portion of this Registration Rights Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, or is otherwise
legally impossible to perform, the remainder of the terms, provisions,
covenants, restrictions, parts and portions of this Registration Rights
Agreement shall remain in full force and effect.
8.2 Specific Enforcement. H&H, NAR and IMR acknowledge and agree
that irreparable damage would occur in the event that any of the provisions of
this Registration Rights Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent or cure
breaches of the provisions of this Registration Rights Agreement, this being in
addition to any other remedy to which they may be entitled by law or equity.
8.3 Entire Agreement. This Registration Rights Agreement contains
the entire understanding of the parties with respect to the matters covered
hereby and this Registration Rights Agreement may be amended only by an
agreement in writing executed by the parties hereto.
8.4 Counterparts. This Registration Rights Agreement may be executed
by the parties hereto in counterparts each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
8.5 Notices. Any notice pursuant to this Registration Rights
Agreement to be given by either party shall be sufficiently given for purposes
of this Registration Rights Agreement if sent by first-class mail, postage
prepaid, delivered by hand or overnight courier or sent by facsimile, addressed
as follows:
(i) if to the Company, addressed to:
The Horn & Hardart Company
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Exec. V.P. - Corporate Affairs
General Counsel, and Secretary
Facsimile number: 000-000-0000
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with a copy to:
Xxxxxx Xxxxxxxx, Esq
Shereff, Friedman, Xxxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile Number: 000-000-0000
(ii) if to the Buyer, addressed to:
North American Resources Limited
c/o Quadrant Management Company
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx X. Xxxxxx
Facsimile Number: 000-000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Breed, Xxxxxx & Xxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile Number: 000-000-0000
(iii) if to IMP, addressed to:
Intercontinental Mining & Resources Limited
c/o Quadrant Management Company
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Financial Officer
Facsimile Number: 000-000-0000
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Breed, Xxxxxx & Xxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile Number: 000-000-0000
or at such other address as shall be furnished in writing to the other party.
8.6 Waivers. Each party may waive in whole or in party any benefit
or right provided to it under this Registration Rights Agreement. No waiver by
any party of any default with respect to any provision, condition, requirement,
or of any benefit or right hereof shall be deemed to be a waiver of any other
provision, condition, requirement, benefit or right hereof; nor shall any delay
or omission of either party to exercise any right hereunder in
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any manner impair the exercise of any such right accruing to it thereafter.
8.7 Submission to Jurisdiction; Consent to Service of Process. Any
action with respect to any claim arising out of or relating to this Registration
Rights Agreement including any claim for specific performance arising under
section 8.2 hereof shall be brought in the State, City and County of New York,
and in furtherance thereof (a) each of H&H, NAR and IMR irrevocably consents and
submits to the exclusive jurisdiction of the Supreme Court of the State of New
York for the County of New York and the United States District Court for the
Southern District of New York and (b) each of H&H, NAR and IMR irrevocably
waives any objection which it may have at any time to the laying of venue of any
suit, action or proceeding arising out of or relating to this Registration
Rights Agreement brought in any such court, irrevocably waives any claim that
any such suit, action or proceeding brought in any such court has been brought
in an inconvenient forum and further irrevocably waives the right to object,
with respect to such suit, action or proceeding brought in any such court, that
such court does not have jurisdiction over such party. Each of H&H, NAR and IMR
consents that service of process upon it in any such suit, action or proceeding
may be made in the manner set forth in section 8.5 hereof.
8.8 Headings. The headings herein are for convenience only, do not
constitute a part of this Registration Rights Agreement and shall not be deemed
to limit or affect any of the provisions hereof.
8.9 Successors and Assigns. This Registration Rights Agreement shall
be binding upon and inure to the benefit of H&H, NAR, IMR, and their successors
and legal representatives. No other Person is intended to have any rights by
reason of, or to enforce, any provision of this Registration Rights Agreement.
Neither H&H, NAR nor IMR may assign this Registration Rights Agreement or any
rights hereunder except to the extent contemplated by Section 7 hereof.
8.10 Governing Law. This Registration Rights Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of New York applicable to contracts made and to be performed entirely within
such state.
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IN WITNESS WHEREOF, H&H, NAR and IMR have caused this Registration
Rights Agreement to be duly executed by their respective authorized officers as
of the date set forth at the head of this Registration Rights Agreement.
THE HORN & HARDART COMPANY
By: /s/ Xxxx Rosentald
-----------------------------------
Name: Xxxx Rosentald
Title: President & CEO
NORTH AMERICAN RESOURCES LIMITED
By: /s/ Xxxx X. Quasing
-----------------------------------
Name: Xxxx X. Quasing
Title: Attorney-in-fact
INTERCONTINENTAL MINING &
RESOURCES, LIMITED
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: V.P.
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