Exhibit 4.1
NEWCO CORPORATION
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is entered into as of [_____] 1997, by
and between Newco Group, Inc., a Delaware corporation (the "COMPANY"), and
Warburg, Xxxxxx Investors, L.P. ("Warburg"), Xxxxxx X. Xxxxxx ("Xxxxxx"),
Xxxxxxx X. XxxXxxxx ("MacAlmon"), Xxxx X. Blend, III ("Blend") and Xxxx X.
Xxxxxx ("Xxxxxx") (Warburg, Felton, MacAlmon, Blend and Xxxxxx together, the
"STOCKHOLDERS").
RECITALS
WHEREAS, the Stockholders acquired shares of Common Stock of the Company
pursuant to an Agreement and Plan of Merger and Reorganization by and among the
Company, The Indus Group, Inc., a California corporation ("INDUS") and TSW
International, Inc., a Georgia corporation ("TSW") dated June 5, 1997 (the
"MERGER AGREEMENT") in connection with the merger of the Company's two
subsidiaries with and into INDUS and TSW, respectively (collectively, the
"MERGERS"). Pursuant to Section 5.16 of the Merger Agreement, the Company agreed
to provide the Stockholders certain registration rights as provided herein; and
WHEREAS, as an inducement for TSW to enter into the Merger Agreement, the
Company desires to grant the registration rights to the Stockholders as
contained herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the Company and each of the Stockholders agree as
follows:
SECTION 1
REGISTRATION RIGHTS
1.1 DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
(a) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any similar Federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(b) "EXPIRATION DATE" shall mean the date the Company has published
(in accordance with applicable pooling of interest accounting rules) the
combined financial results of the Company, INDUS and TSW for a period of at
least thirty (30) days of combined operations of the Company, INDUS and TSW.
(c) "HOLDER" shall mean any holder of outstanding Registerable
Securities which have not been sold to the public or anyone who holds
outstanding Registerable Securities to whom the registration rights conferred by
this Agreement have been transferred in compliance with Section 1.11 hereof.
(d) "INITIATING HOLDERS" shall mean Warburg or Xxxxxx, or their
respective transferees pursuant to Section 1.11 hereof, so long as any such
person is a Holder of Registerable Securities.
(e) "REGISTER," "REGISTERED" and "REGISTRATION" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement, and compliance with applicable
state securities laws of such states in which Holders notify the Company of
their intention to offer Registerable Securities.
(f) "REGISTERABLE SECURITIES" shall mean all of the following to the
extent the same have not been sold to the public (i) any and all shares of
Common Stock of the Company issued to the Stockholders pursuant to the Merger
Agreement or upon the exercise of warrants to purchase Common Stock of the
Company granted to the holder thereof in the Mergers in respect of warrants to
purchase shares of capital stock of TSW held by the holder thereof prior to the
Mergers, (ii) stock issued in respect of stock referred to in (i) above in any
reorganization, or (iii) stock issued in respect of the stock referred to in (i)
and (ii) as a result of a stock split, stock dividend, recapitalization or
combination.
(g) "REGISTRATION EXPENSES" shall mean all expenses incurred in
connection with a registration hereunder, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses and the expense of any
special audits incident to or required by any such registration (but excluding
the compensation of regular employees of the Company, which shall be paid in any
event by the Company).
(h) "SEC" shall mean the Securities and Exchange Commission, or any
other Federal agency at the time administering the Securities Act.
(i) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar Federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(j) "SELLING EXPENSES" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registerable Securities and all
fees and disbursements of counsel for the Holders.
1.2 RESTRICTIVE LEGEND.
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(a) Each certificate representing Registerable Securities held by any
Holder who is a party to an TSW Affiliate Agreement (as defined in Section 4.5
of the Merger Agreement) or an INDUS Affiliate Agreement (as defined in Section
5.5 of the Merger Agreement) shall be stamped or otherwise imprinted with a
legend as provided in the TSW Affiliate Agreement.
(b) The Company agrees to remove promptly stop transfer instructions
and the legend provided in Section 1.2(a) above when (i) such proposed sale,
transfer or other distribution is permitted pursuant to Rule 145(d) under the
Securities Act; (ii) counsel representing the Holder, which counsel is
reasonably satisfactory to the Company, shall have advised the Company in a
written opinion letter satisfactory to the Company and Company's legal counsel,
and upon which the Company and its legal counsel may rely, that no registration
under the Securities Act would be required in connection with the proposed sale,
transfer or other disposition; (iii) a registration statement under the
Securities Act covering the Registerable Securities proposed to be sold,
transferred or otherwise disposed of, describing the manner and terms of the
proposed sale, transfer or other dispositions, and containing a current
prospectus, shall have been filed with the SEC and made effective under the
Securities Act; (iv) an authorized representative of the SEC shall have rendered
written advice to Holder (sought by Holder or counsel to Holder, with a copy
thereof and all other related communications delivered to the Company) to the
effect that the SEC would take no action, or that the staff of the SEC would not
recommend that the SEC take any action, with respect to the proposed disposition
if consummated; or (v) when the Holder of Registerable Securities is no longer
subject to the restrictions in Rule 145 under Rule 145(d)(2) or (3).
(c) Each Holder consents to the Company making a notation on its
records and giving instructions to any transfer agent of the Registerable
Securities in order to implement the restrictions on transfer established in
this Agreement.
1.3 REQUESTED REGISTRATION.
(a) At any time after the Expiration Date, in case the Company shall
receive a written request from an Initiating Holder or Initiating Holders that
the Company effect a registration with respect to Registerable Securities, the
Company shall:
(i) promptly give written notice of the proposed registration to
all other Holders; and
(ii) as soon as practicable use its best efforts to register
(including, without limitation, the execution of an undertaking to file post-
effective amendments, appropriate qualifications under applicable blue sky or
other state securities laws, and appropriate compliance with federal government
requirements) the sale and distribution of the Registerable Securities as
specified in such request, together with all or such portion of the Registerable
Securities of any other Holder or Holders as are specified in a written request
given within ten (10) days after receipt of such written notice from the
Company; provided, however, that the Company shall not be obligated to file a
registration statement pursuant to this Section:
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(A) within two hundred seventy (270) days after the
effectiveness of the registration statement relating to a registration effected
pursuant to this Section 1.3(a) or Section 1.4(a);
(B) in any particular state in which the Company would be
required to execute a general consent to service of process in effecting such
registration;
(C) in any registration having an aggregate sales price
(before deduction of underwriting discounts and commissions) of less than
$5,000,000; or
(D) after the Company has effected four such registrations
pursuant to this Section 1.3(a) and such registrations have been declared or
ordered effective; provided, however, that any registration request which is
subsequently withdrawn shall not be deemed to be a registration under this
subsection (D) if the Holders requesting such registration shall have reimbursed
the Company for all Registration Expenses related to such withdrawn registration
and provided further, that Initiating Holder shall be entitled to request no
more than two registrations pursuant to this Section 1.3(a). Notwithstanding the
foregoing, if at the time of such withdrawal, the Holders have learned of a
material adverse change in the condition, business, or prospects of the Company
from that known to the Holders at the time of their request, then the Holders
shall not be required to pay any of such expenses and such registration shall
not be counted as a registration pursuant to this Section 1.3(a)(ii)(D).
Subject to the foregoing clauses (A) through (D), the Company shall file a
registration statement covering the Registerable Securities so requested to be
registered as soon as is practicable after receipt of the request or requests of
the Holders; provided, however, that (i) if the Company shall furnish to such
Holders a certificate signed by the President of the Company stating that in the
good faith judgment of the Board of Directors it would be detrimental to the
Company and its shareholders for such registration statement to be filed within
such period, then the Company may defer the filing of such registration
statement for a period of not more than sixty (60) days, provided that the
Company may not exercise such sixty (60) day hold off more than once during any
two hundred seventy (270) day period, or (ii) if at the time of such request the
Company determines it desires to register shares for the account of the Company,
then the Company can so notify the Holders who shall then have rights to
participate in such registration statement as provided in Section 1.4.
(b) If the Holders intend to distribute the Registerable Securities
covered by their request by means of an underwriting, they shall so advise the
Company as a part of their request made pursuant to Section 1.3. In such event,
the Company shall include such information in the written notice referred to in
Section 1.3(a)(i), and the Holders shall select an underwriter or underwriters
reasonably acceptable to the Company. The right of any Holder to registration
pursuant to Section 1.3 shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registerable Securities
in the underwriting to the extent provided herein. The Company shall (together
with all Holders distributing their Registerable Securities through such
underwriting) enter into an underwriting agreement in customary form with the
underwriter or under writers selected for such underwriting. Notwithstanding
any other provision of this Section 1.3, if the
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managing underwriter advises the participating Holders in writing that marketing
factors, so as to not materially adversely impact the market price of the
Company's Common Stock, require a limitation of the number of shares to be
underwritten (an "UNDERWRITER'S CUTBACK"), the Company shall so advise all
participating Holders, and the number of shares of Registerable Securities that
may be included in the registration and underwriting shall be allocated among
all participating Holders thereof in proportion, as nearly as practicable, to
the respective amounts of Registerable Securities held by such Holders. If any
Holder disapproves of the terms of the underwriting, he may elect to withdraw
therefrom by written notice to the Company and the managing underwriter. If, by
the withdrawal of such Registerable Securities a greater number of Registerable
Securities held by other Holders may be included in such registration (up to the
limit imposed by the underwriters) the Company shall offer to all Holders who
have included Registerable Securities in the registration the right to include
additional Registerable Securities in the same proportion used in determining
the limitation as set forth above. Any Registerable Securities which are
excluded from the underwriting by reason of the underwriter's marketing
limitation or withdrawn from such underwriting shall be withdrawn from such
registration.
1.4 PIGGYBACK REGISTRATION.
(a) If at any time or from time to time, the Company shall determine
to register any of its securities, for its own account or the account of any of
its shareholders, other than a registration relating solely to employee benefit
plans, a registration statement related to the offering of debt securities of
the Company, a registration relating solely to a Securities Act Rule 145 trans
action, a registration relating to any acquisition by the Company or a
registration on any form (other than Form X-0, X-0 or S-3, or their successor
forms) which does not include substantially the same information as would be
required to be included in a registration statement covering the sale of
Registerable Securities, the Company will:
(i) give to each Holder written notice thereof as soon as
practicable prior to filing the registration statement; and
(ii) include in such registration and in any underwriting
involved therein, all the Registerable Securities specified in a written request
or requests, made within ten (10) days after receipt of such written notice from
the Company, by any Holder or Holders, except as set forth in Subsection (b)
below.
(b) If the registration is for a registered public offering involving
an underwriting, the Company shall so advise the Holders as a part of the
written notice given pursuant to Subsection 1.4(a)(i). In such event the right
of any Holder to registration pursuant to Section 1.4 shall be conditioned
upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registerable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their securities through such
underwriting shall (together with the Company) enter into an underwriting
agreement in customary form with the underwriter or underwriters selected for
such underwriting by the Company. Notwithstanding any other provision of this
Section 1.4, if the managing underwriter determines that marketing factors so as
to not materially adversely impact the market price of the Company's Common
Stock require a limitation of the number of shares to be
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underwritten, the managing underwriter may limit the number of Registerable
Securities to be included in the registration and underwriting on behalf of the
Holders on a pro rata basis to not less than thirty-five percent (35%) of total
number of shares to be included in the registration. In such event, the Company
shall so advise all Holders of Registerable Securities which would otherwise be
registered and underwritten pursuant hereto, and the number of shares of
Registerable Securities that may be included in the registration and
underwriting shall be allocated among the Holders in proportion, as nearly as
practicable, to the respective amounts of Registerable Securities held by each
of the Holders seeking to register shares under this Section 1.4. If any Holder
disapproves of the terms of any such underwriting, he may elect to withdraw
therefrom by written notice to the Company and the managing underwriter. If, by
the withdrawal of such Registerable Securities a greater number of Registerable
Securities held by other Holders may be included in such registration (up to the
limit imposed by the underwriters), the Company shall offer to all Holders who
have included Registerable Securities in the registration the right to include
additional Registerable Securities in the same proportion used in determining
the limitation as set forth above. Any Registerable Securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration.
1.5 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Section 1.3 or 1.4 shall be borne by the Company, and all Selling Expenses shall
be borne by the Holders of the securities so registered pro rata on the basis of
the number of their shares so registered; provided, however, that the Company
shall not be required to pay any Registration Expenses if, as a result of the
withdrawal of a request for registration by any of the Holders, as applicable,
the registration statement does not become effective, in which case each of the
Holders withdrawing from the requested registration shall bear such Registration
Expenses pro rata; and, provided, further, that such registration shall not be
counted as a registration pursuant to Section 1.3(a)(ii)(D). Notwithstanding
the foregoing, if at the time of such withdrawal, the Holders have learned of a
material adverse change in the condition, business, or prospects of the Company
from that known to the Holders at the time of their request, then the Holders
shall not be required to pay any of such expenses and such registration shall
not be counted as a registration pursuant to Section 1.3(a)(ii)(D).
1.6 OBLIGATIONS OF THE COMPANY. Whenever required to effect the
registration of any Registerable Securities under this Agreement, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registerable Securities and use its reasonable best efforts to
cause such registration statement to become effective, and keep such
registration statement effective until the distribution is completed, but not
longer than ninety (90) days after the effective date thereof (excluding any
days in which the Company requires the Holders to cease sales of shares as
provided below); provided, however, that (A) the Company may by written notice
require that the Holders immediately cease sales of shares (for a period not to
exceed sixty (60) days) pursuant to such registration statement at any time that
(i) the Company becomes engaged in business activity or negotiation which is not
disclosed in the registration statement (or the prospectus included therein)
which the Company reasonably believes
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must be disclosed therein under applicable law and which the Company desires to
keep confidential for business purposes, (ii) the Company determines that a
particular disclosure so determined to be required to be disclosed therein would
be premature or would adversely affect the Company or its business or prospects,
or (iii) the registration statement can no longer be used under the existing
rules and regulations promulgated under the Securities Act, and (B) if such
registration statement is not kept effective for such period, such registration
shall not be counted as a registration pursuant to Section 1.3(a)(ii)(D). The
Company shall not be required to disclose to the Holders which of the reasons
specified in clauses (i), (ii) or (iii) above are the basis for requiring a
suspension of sales hereunder.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of the Registerable Securities owned by them that
are included in such registration.
(d) Use its reasonable best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
(e) Enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter(s) of such
offering. Each Holder participating in such underwriting shall also enter into
and perform its obligations under such an agreement.
(f) Notify each Holder of Registerable Securities covered by such
registration statement at any time when a prospectus relating thereto is
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 an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) Furnish to the underwriters for sale of Registerable Securities on
the date that such Registerable Securities are delivered to the underwriters (i)
an opinion, dated as of such date, of the counsel representing the Company for
the purposes of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering addressed to the
underwriters, and (ii) a "comfort" letter dated as of such date, from the
independent certified public accountants of
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the Company, in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public offering
addressed to the underwriters.
1.7 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Sections 1.3 or 1.4
that the selling Holders shall furnish to the Company such information regarding
themselves, the Registerable Securities held by them, and the intended method of
disposition of such securities as shall be required to timely effect the
registration of Registerable Securities.
1.8 DELAY OF REGISTRATION. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
1.9 INDEMNIFICATION. In the event any Registerable Securities are
included in a registration statement under Sections 1.3 or 1.4:
(a) By the Company. To the extent permitted by law, the Company will
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indemnify and hold harmless each Holder, the partners, officers and directors of
each Holder, any underwriter (as defined in the Securities Act) for such Holder
and each person, if any, who controls such Holder or underwriter within the
meaning of the Securities Act or the Exchange Act against any losses, claims,
damages or liabilities (joint or several) to which they may become subject under
the Securities Act, the Exchange Act or other federal or state securities law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "VIOLATION"):
(i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto;
(ii) the omission or alleged omission to state therein a material
fact required to be stated therein, or necessary to make the statements therein,
in light of the circumstances in which made, not misleading, or
(iii) any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any federal or state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
federal or state securities law in connection with the offering covered by such
registration statement;
and the Company will reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them, as incurred, in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection 1.9(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the
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Company be liable in any such case for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by such Holder, partner,
officer, director, underwriter or controlling person of such Holder.
(b) By Selling Holders. To the extent permitted by law, each selling
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Holder will indemnify and hold harmless the Company, each of its directors, each
of its officers who have signed the registration statement, each person, if any,
who controls the Company within the meaning of the Securities Act, any
underwriter (as defined in the Securities Act) and any other Holder selling
securities under such registration statement or any of such other Holder's
partners, directors or officers or any person who controls such underwriter or
other Holder within the meaning of the Securities Act or the Exchange Act,
against any losses, claims, damages or liabilities (joint or several) to which
the Company or any such director, officer, controlling person, underwriter or
other such Holder, partner or director, officer or controlling person of such
underwriter or other Holder may become subject under the Securities Act, the
Exchange Act or other federal or state securities law, insofar as such losses,
claims, damages or liabilities (or actions in respect thereto) arise out of or
are based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration; and each such Holder will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer,
controlling person, underwriter or other Holder, partner, officer, director or
controlling person of such other Holder or underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this subsection
1.9(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the written
consent of the Holder, which consent shall not be unreasonably withheld; and,
provided, further, that the total amounts payable in indemnity by a Holder under
this subsection 1.9(b) in respect of any Violation shall not exceed the proceeds
(net of underwriting discounts and commissions) received by such Holder in the
registered offering out of which such Violation arises.
(c) Notice. Promptly after receipt by an indemnified party under
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Section 1.9 of notice of the commencement of any action (including, without
limitation, any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under Section 1.9,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential conflict of interests between such indemnified party and any other
party represented by such counsel in such proceeding; and, provided, further,
that the indemnifying party shall not be required to pay for more than one
separate counsel for all indemnified parties. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if materially prejudicial to its
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ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under Section 1.9, but the omission so to
deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under Section
1.9.
(d) Contribution. In order to provide for just and equitable
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contribution to joint liability under the Securities Act, the Exchange Act or
any federal or state securities laws in any case in which either (i) any Holder
exercising rights under this Agreement, or any controlling person of any such
Holder, makes a claim for indemnification pursuant to Section 1.9 but it is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that Section 1.9 provides for indemnification in such
case, or (ii) contribution under the Securities Act, the Exchange Act or any
federal or state securities laws may be required on the part of any such selling
Holder or any such controlling person in circumstances for which indemnification
is provided under Section 1.9, then, and in each such case, the Company and such
Holder will contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in such proportion
as is appropriate to reflect the relative fault of the indemnifying party or
parties on the one hand and the indemnified party 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 shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
indemnifying party or parties on the one hand or the indemnified party on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission; provided,
however, that, in any such case, (A) no such Holder will be required to
contribute any amount in excess of the proceeds (net of underwriting discounts
and commissions) received by such Holder from all such Registerable Securities
offered and sold by such Holder pursuant to such registration statement; and (B)
no person or entity guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to contribution from
any person or entity who was not guilty of such fraudulent misrepresentation.
(e) Survival. The obligations of the Company and Holders under
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Section 1.9 shall survive the completion of any offering of Registerable
Securities in a registration statement.
1.10 "MARKET STAND-OFF" AGREEMENT. Each Holder who sells Registerable
Securities pursuant to a registration under Section 1.3 or 1.4 hereof hereby
agrees that it shall not, to the extent requested by the Company or the managing
underwriter, sell or otherwise transfer or dispose of any Registerable
Securities or other shares of stock of the Company then owned by such Holder
(other than to donees, affiliates or partners of the Holder who agree to be
similarly bound) for the period from the filing of the registration statement
until up to sixty (60) days following the date of the final prospectus in
connection with the registration statement. In order to enforce the foregoing
covenant, the Company shall have the right to place restrictive legends on the
certificates representing the shares subject to this Section 1.10 and to impose
stop transfer instructions with respect to the Registerable
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Securities of such Holders until the end of such period. The provisions of this
Section 1.10 shall be binding upon any transferee of any Registerable
Securities.
1.11 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company to
register securities granted Holders under Sections 1.3 and 1.4 may be assigned
to any constituent partner of a Holder, where such Holder is a partnership, or
to any parent or subsidiary corporation or any officer, director or principal
shareholder thereof, where such Holder is a corporation, provided that (i) such
transfer may otherwise be effected in accordance with the applicable securities
laws, and (ii) the Company is given written notice of such assignment prior to
such assignment.
1.12 TERMINATION OF RIGHTS. The rights granted pursuant to this Agreement
(a) shall terminate as to any Holder when the aggregate number of Registerable
Securities which such Holder holds (together with other Holders whose sales may
be aggregated) could all be sold in a three (3) month period in a public sale in
compliance with Rule 144 under the Securities Act using the 1% volume limitation
contained in Rule 144(e)(1)(i), and (b) shall not be exercisable by any Holder
if at the time of the request for or notice of registration under Section 1.3
and 1.4 such Holder could sell (together with other Holders whose sales may be
aggregated) in a three (3) month period all Registerable Securities then held by
such Holder in compliance with Rule 144 using the Company's average weekly
trading volume calculation at such time.
1.13 RULE 144 REPORTING. With a view to make available the benefits of
Rule 144 the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) 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; and
(c) furnish to the Holder forthwith upon request a written statement
by the Company as to its compliance with the reporting requirements of Rule 144,
and provide a copy of the most recent annual or quarterly report of the Company,
and such other reports and documents of the Company as a Holder may reasonably
request in availing itself of Rule 144.
SECTION 2
MISCELLANEOUS
2.1 WAIVERS AND AMENDMENTS. The rights and obligations of the Company and
the rights and obligations of a Holder under this Agreement may be waived
(either generally or in a particular instance, either retroactively or
prospectively, and either for a specified period of time or indefinitely) or
amended, only with the written consent of such Holder.
-11-
2.2 GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Delaware, without giving effect to the principles
of conflicts of laws thereof.
2.3 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
2.4 ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
2.5 NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by first class, postage
prepaid, addressed as follows:
(a) if to a Holder, at such Holder's address set forth in Schedule A
hereto, or at such other address as such Holder shall have furnished to the
Company in writing, with copies to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
Telecopier: (000) 000-0000
and
Xxxxxxxx Xxxxxxx LLP
NationsBank Plaza
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopier (000) 000-0000
or (b) if to the Company:
Newco Group, Inc.
00 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
with a copy to:
-00-
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Xx., Esq.
Telecopier: (000) 000-0000
2.6 SEVERABILITY. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
2.7 TITLES AND SUBTITLES. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
2.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
constitute one instrument.
2.9 PARTNERSHIP. The Company recognizes that Warburg is a limited
partnership and agrees that Warburg's general and limited partners shall in no
event be liable for any obligation or liabilities of Warburg under this
Agreement.
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The foregoing Registration Rights Agreement is hereby executed as of the
date first above written.
"COMPANY"
NEWCO GROUP, INC.
A DELAWARE CORPORATION
---------------------------------
Signature of Authorized Signatory
---------------------------------
Print Name and Title
"STOCKHOLDERS"
WARBURG, XXXXXX INVESTORS, L.P.
By: Warburg, Xxxxxx & Co.
General Partner
By:
------------------------------
Partner
XXXXXX X. XXXXXX
---------------------------------
Signature
XXXXXXX X. XXXXXXXX
---------------------------------
Signature
