REGISTRATION RIGHTS AGREEMENT
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT (this “Agreement”) among each purchaser of 4.0% Series B
Convertible Preferred Stock that is a Qualified Investor (as defined in the hereinafter defined
Chapter 11 Plan) (collectively, the “Investors”) and the corporation (the
“Company”) that will be a successor to Xxxx Corporation, a Virginia corporation
(“Xxxx”), under the chapter 11 plan of reorganization of Xxxx and its debtor subsidiaries
and affiliates that commenced jointly administered cases under chapter 11 of Title 11 of the United
States Code (the “Chapter 11 Plan”).
R E C I T A L S
WHEREAS, the Investors have, pursuant to the terms of various Subscription Agreements by and
among the Company and the Investors (collectively, the “Subscription Agreements”), agreed
to purchase shares of 4.0% Series B Convertible Preferred Stock, par value $0.01 per share, of the
Company (the “Series B Preferred Stock”); and
WHEREAS, the shares of Series B Preferred Stock are convertible into shares of common stock,
par value $0.01 per share, of the Company (the “Common Stock”); and
WHEREAS, the Company has agreed, as a condition precedent to the Investors’ obligations under
the Subscription Agreements, to grant the Investors certain registration rights; and
WHEREAS, the Company and the Investors desire to define the registration rights of the
Investor on the terms and subject to the conditions herein set forth.
NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable
consideration, the parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms have the respective meanings set forth below:
Allocation Priority: shall have the meaning set forth in Section 2(b)(ii);
Agreement: shall mean this Agreement among the Investors and the Company;
Commission: shall mean the Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act;
Exchange Act: shall mean the Securities Exchange Act of 1934, as amended (or any
successor act), and the rules and regulations promulgated thereunder;
Holder: shall mean any holder of Registrable Securities;
Initiating Holder: shall mean any Holder or Holders who in the aggregate are Holders
of more than 50% of the then outstanding Registrable Securities;
Maximum Number of Shares: shall have the meaning set forth in Section 2(b)(ii);
Person: shall mean an individual, partnership, joint-stock company, corporation,
trust or unincorporated organization, and a government or agency or political subdivision thereof;
Pro Rata: shall have the meaning set forth in Section 2(b)(ii);
Register, Registered and Registration: shall mean a registration
effected by preparing and filing a registration statement in compliance with the Securities Act
(and any post-effective amendments filed or required to be filed) and the declaration or ordering
of effectiveness of such registration statement;
Registrable Securities: shall mean any (A) Series B Preferred Stock held by the
Investors, (B) shares of Common Stock issuable upon conversion of the shares of Series B Preferred
Stock held by the Investors, (C) other shares of Common Stock acquired by the Investors after the
date hereof unless acquired in breach of any agreement between the Holder and the Company and (D)
additional securities of the Company issued as a dividend or other distribution with respect to, or
in exchange for or in replacement of any securities of the Company held by the Investors, including
but not limited to, those listed in clauses (A), (B) and (C);
Registration Expenses: shall mean all reasonable expenses incurred by the Company in
compliance with Section 2(a), (b) and (c) hereof, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel for the Company, reasonable
fees and expenses of one counsel for all the Holders, blue sky fees and expenses and the reasonable
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);
security, securities: shall have the meaning set forth in Section 2(1) of the
Securities Act;
Securities Act: shall mean the Securities Act of 1933, as amended (or any successor
act), and the rules and regulations promulgated thereunder; and
Selling Expenses: shall mean all underwriting discounts and selling commissions
applicable to the sale of Registrable Securities and all fees and disbursements of counsel for each
of the Holders other than reasonable fees and expenses of one counsel for all the Holders.
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SECTION 2. REGISTRATION RIGHTS
(a) Demand Registration.
(i) Request for Registration. If the Company shall receive from an Initiating
Holder, at any time, a written request that the Company effect any registration with respect
to all or a part of the Registrable Securities, the Company will:
(1) promptly give written notice of the proposed registration, qualification or
compliance to all other Holders; and
(2) as soon as practicable, use its reasonable best efforts to effect such registration
(including, without limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualification under applicable blue sky or other state securities
laws and appropriate compliance with applicable regulations issued under the Securities Act)
as may be so requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any Holder or Holders joining in such
request as are specified in a written request received by the Company within ten (10)
business days after written notice from the Company is given under Section 2(a)(i)(1) above;
provided, that the Company shall not be obligated to effect, or take any action to
effect, any such registration pursuant to this Section 2(a):
(A) In any particular jurisdiction in which the Company would be required to
execute a general consent to service of process in effecting such
registration, qualification or compliance, unless the Company is already
subject to service in such jurisdiction and except as may be required by the
Securities Act or applicable rules or regulations thereunder;
(B) After the Company has effected one (1) such registration pursuant to
this Section 2(a) and such registration has been declared or ordered
effective and the sales of such Registrable Securities shall have closed;
provided, however, that a registration shall not be deemed
to constitute a registration pursuant to this Section 2(a) in the event that
less than ninety percent (90%) of the Registrable Securities held by Holders
participating in the registration are permitted to participate in such
registration;
(C) If the Registrable Securities requested by all Holders to be registered
pursuant to such request do not have an anticipated aggregate public
offering price (before any underwriting discounts and commissions) of not
less than an amount equal to 10% of the aggregate purchase price of the
Series B Preferred Stock purchased by Investors pursuant to the Subscription
Agreements;
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(D) During the period starting with the date thirty (30) days prior to the
Company’s good faith estimate of the date of filing of, and ending on the
date three (3) months immediately following the effective date of, any
registration statement pertaining to securities of the Company (other than a
registration of securities in a Rule 145 transaction under the Securities
Act, with respect to an employee benefit plan or with respect to the
Company’s first registered public offering of its stock); provided,
that the Company is actively employing in good faith all reasonable efforts
to cause such registration statement to become effective; provided,
however, that the Company may only delay an offering pursuant to
this Section 2(a)(i)(2)(D) for a period of not more than thirty (30) days,
if a filing of any other registration statement is not made within that
period and the Company may only exercise this right once in any twelve
(12)-month period; or
(E) If the Company shall furnish to the Initiating Holders a certificate
signed by the President of the Company stating that in the good faith
judgment of the Board of Directors of the Company it would be seriously
detrimental to the Company or its stockholders for a registration statement
to be filed in the near future, in which case the Company’s obligation to
use its best efforts to comply with this Section 2(a) shall be deferred for
a period not to exceed ninety (90) days from the date of receipt of written
request from the Initiating Holders; provided, however, that
the Company shall not exercise such right more than once in any twelve
(12)-month period.
The registration statement filed pursuant to the request of the Initiating Holders may, subject to
the provisions of Section 2(a)(ii) below, include other securities of the Company that are held by
Persons who, by virtue of agreements with the Company, are entitled to include their securities in
any such registration (“Other Stockholders”). In the event any Holder requests a
registration pursuant to this Section 2(a) in connection with a distribution of Registrable
Securities to its partners or members, the registration shall provide for the resale by such
partners or members, if requested by such Holder.
The registration rights set forth in this Section 2 may be assigned, in whole or in part, to any
transferee of Registrable Securities (who shall be bound by all obligations of this Agreement).
(ii) Underwriting. If the Initiating Holders intend to distribute the
Registrable 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 2(a)(i).
If Other Stockholders request inclusion of their securities in the underwriting, the Holders shall
offer to include the securities of such Other Stockholders in the underwriting and may condition
such offer on their acceptance of the further applicable provisions of this Section 2. The Holders
whose shares are to be included in such registration and the Company shall (together with all Other
Stockholders proposing to distribute their securities through such underwriting) enter into
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an underwriting agreement in customary form with the representative of the underwriter or
underwriters selected for such underwriting by the Initiating Holders and reasonably acceptable to
the Company. Notwithstanding any other provision of this Section 2(a), if the representative
advises the Holders in writing that marketing factors require a limitation on the number of shares
to be underwritten, the representative may limit the number of Registrable Securities to be
included in the registration and underwriting in accordance with Section 2(b)(ii); provided that
such allocation shall be made in the following manner: (i) first, Pro Rata (as defined below) to
Registrable Securities and securities entitled to registration under the Series A Registration
Rights Agreement (as defined below), regardless of the number of shares that can be sold without
exceeding the Maximum Number of Shares; (ii) second, to securities that the Company desires to
sell, and (iii), third, securities for the account of Other Stockholders that the Company is
obligated to register pursuant to written contractual arrangements with such persons that can be
sold, Pro Rata, in the case of (ii) and (iii) without exceeding the Maximum Number of Shares. If
any Holder or Other Stockholder who has requested inclusion in such registration as provided herein
disapproves of the terms of the underwriting, such Person may elect to withdraw therefrom by
providing written notice to the Company, the underwriter and the Initiating Holders. The securities
so withdrawn shall also be withdrawn from registration.
(b) Company Registration.
(i) If the Company shall determine to register any of its equity securities either for
its own account or for the account of Other Stockholders, other than a registration relating
solely to employee benefit plans, or a registration relating solely to a Rule 145
transaction under the Securities Act, or a registration on any registration form which does
not permit secondary sales or does not include substantially the same information as would
be required to be included in a registration statement covering the sale of Registrable
Securities, the Company will:
(1) promptly give to each of the Holders a written notice thereof (which shall include
a list of the jurisdictions in which the Company intends to attempt to qualify such
securities under the applicable blue sky or other state securities laws); and
(2) include in such registration (and any related qualification under blue sky laws or
other compliance), and in any underwriting involved therein, all the Registrable Securities
specified in a written request or requests, made by the Holders within ten (10) days after
receipt of the written notice from the Company described in clause (1) above, except to the
extent limited as set forth in Section 2(b)(ii) below. Such written request may specify all
or a part of the Holders’ Registrable Securities. In the event any Holder requests
inclusion in a registration pursuant to this Section 2(b) in connection with a distribution
of Registrable Securities to its partners or members, the registration shall provide for the
resale by such partners or members, if requested by such Holder.
(ii) Underwriting. If the registration of which the Company gives notice is
for a registered public offering involving an underwriting, the Company shall so advise each
of the Holders as a part of the written notice given pursuant to Section 2(b)(i)(1) above.
In such event, the right of each of the Holders to registration pursuant to this Section
2(b)
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shall be conditioned upon such Holders’ participation in such underwriting and the
inclusion of such Holders’ Registrable Securities in the underwriting to the extent provided
herein. The Holders whose shares are to be included in such registration shall (together
with the Company and the Other Stockholders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the representative
of the underwriter or underwriters selected for underwriting by the Company.
Notwithstanding any other provision of this Section 2(b), if the representative determines
that marketing factors require a limitation on the number of shares to be underwritten, the
representative may limit the number of Registrable Securities to be included in the
registration and underwriting in accordance with the allocation priority set forth below.
The Company shall promptly advise all holders of securities requesting registration of such
limitation, and the number of shares of securities that are entitled to be included in the
registration and underwriting (the “Maximum Number of Shares”) shall be allocated in
the following manner: (i) first, the securities that the Company desires to sell,
regardless of the number of shares that can be sold without exceeding the Maximum Number of
Shares; (ii) second, both (A) the securities entitled to registration under the
Registration Rights Agreement, dated on or about the Effective Date (as defined in the
Chapter 11 Plan), between Centerbridge Capital Partners, L.P., Centerbridge Capital Partners
Strategic, L.P, Centerbridge Capital Partners SBS, L.P. and the Company (the “Series A
Registration Rights Agreement”) and (B) the Registrable Securities that can be sold, all
pro rata in accordance with the number of securities entitled to registration under
the Series A Registration Rights Agreement and Registrable Securities, respectively, that
each such holder of securities entitled to registration under the Series A Registration
Rights Agreement or Holder has requested be included in such registration (such proportion
is referred to herein as “Pro Rata”), without exceeding the Maximum Number of
Shares, and; (iii) third, the Registrable Securities that can be sold, Pro Rata,
without exceeding the Maximum Number of Shares; and (iv) fourth, to the extent that
the Maximum Number of Shares has not been reached under the foregoing clauses, the
securities for the account of Other Stockholders that the Company is obligated to register
pursuant to written contractual arrangements with such persons that can be sold, Pro Rata,
without exceeding the Maximum Number of Shares (the foregoing allocation is referred to
herein as the “Allocation Priority”). If any of the Holders or any officer,
director or Other Stockholder disapproves of the terms of any such underwriting, he she or
it may elect to withdraw therefrom by providing written notice to the Company and the
underwriter. Any Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
(c) Form S-3. The Company shall use its reasonable best efforts to qualify for
registration on Form S-3 for secondary sales. After the Company has qualified for the use of Form
S-3, the Holders shall have the right to request up to four (4) registrations on Form S-3 (such
requests shall be in writing and shall state the number of shares of Registrable Securities to be
disposed of and the intended method of disposition of shares by such holders), provided,
that the Company shall not be obligated to effect, or take any action to effect, any such
registration pursuant to this Section 2(c):
(i) Unless the Holder or Holders requesting registration propose to dispose of shares
of Registrable Securities having an aggregate price to the public (before deduction
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of Selling Expenses) of more than an amount equal to 5% of the aggregate purchase price
of the Series B Preferred Stock purchased by Investors pursuant to the Subscription
Agreements;
(ii) Within one hundred eighty (180) days of the effective date of the most recent
registration pursuant to this Section 2(c) in which securities held by the requesting Holder
could have been included for sale or distribution;
(iii) In any particular jurisdiction in which the Company would be required to execute
a general consent to service of process in effecting such registration, qualification or
compliance, unless the Company is already subject to service in such jurisdiction and except
as may be required by the Securities Act or applicable rules or regulations thereunder;
(iv) During the period starting with the date thirty (30) days prior to the Company’s
good faith estimate of the date of filing of, and ending on the date three(3) months
immediately following the effective date of, any registration statement pertaining to
securities of the Company (other than a registration of securities in a Rule 145 transaction
under the Securities Act or with respect to an employee benefit plan); provided,
that the Company is actively employing in good faith all reasonable efforts to cause such
registration statement to become effective; provided, however, that the
Company may only delay an offering pursuant to this Section 2(c)(iv) for a period of not
more than thirty (30) days, if a filing of any other registration statement is not made
within that period and the Company may only exercise this right once in any twelve
(12)-month period; or
(v) If the Company shall furnish to the Holders a certificate signed by the President
of the Company stating that in the good faith judgment of the Board of Directors of the
Company it would be seriously detrimental to the Company or its stockholders for a
registration statement to be filed in the near future, in which case the Company’s
obligation to use its best efforts to comply with this Section 2(c) shall be deferred for a
period not to exceed ninety (90) days from the date of receipt of written request from the
Holders; provided, however, that the Company shall not exercise such right
more than once in any twelve (12)-month period.
The Company shall give written notice to all Holders of the receipt of a request for registration
pursuant to this Section 2(c)and shall provide a reasonable opportunity for other Holders to
participate in the registration; provided, that if the registration is for an underwritten
offering, the terms of Section 2(a)(ii) above shall apply to all participants in such offering.
Subject to the foregoing, the Company will use its reasonable best efforts to effect promptly the
registration of all shares of Registrable Securities on Form S-3 to the extent requested by the
Holder or Holders thereof for purposes of disposition. In the event any Holder requests a
registration pursuant to this Section 2(c) in connection with a distribution of Registrable
Securities to its partners or members, the registration shall provide for the resale by such
partners or members, if requested by such Holder.
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(d) Expenses of Registration. All Registration Expenses incurred in connection with
any registration, qualification or compliance pursuant to this Section 2 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.
(e) Registration Procedures. In the case of each registration effected by the Company
pursuant to this Section 2, the Company will keep the Holders, as applicable, advised in writing as
to the initiation of each registration and as to the completion thereof. At its reasonable
expense, the Company will:
(i) keep such registration effective for a period of ninety (90) days;
(ii) furnish such number of prospectuses and other documents incident thereto as each
of the Holders, as applicable, from time to time may reasonably request;
(iii) notify each Holder of Registrable Securities covered by such registration 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 in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading; and
(iv) furnish, on the date that such Registrable Securities are delivered to the
underwriters for sale, if such securities are being sold through underwriters or, if such
securities are not being sold through underwriters, on the date that the registration
statement with respect to such securities becomes effective, (1) 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 reasonably and customarily given to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders participating in
such registration and (2) a letter, dated as of such date, from the independent certified
public accountants of the Company, in form and substance as is reasonably and customarily
given by independent certified public accountants to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and if permitted by applicable accounting
standards, to the Holders participating in such registration.
(f) Indemnification.
(i) The Company will indemnify each of the Holders, as applicable, each of its
officers, directors and partners and members, and each Person controlling each of the
Holders, with respect to each registration which has been effected pursuant to this Section
2, and each underwriter, if any, and each person who controls any underwriter, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, issuer free-writing prospectus, offering
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circular or other document, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each of such Holders, each of its officers,
directors and partners and members, and each Person controlling each of such Holders, each
such underwriter and each Person who controls any such underwriter, for any legal and any
other expenses reasonably incurred in connection with investigating and defending any such
claim, loss, damage, liability or action; provided, that the Company will not be
liable in any such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based on any untrue statement or omission based upon written
information furnished to the Company by the Holders or underwriter and stated to be
specifically for use therein; provided, however, that the obligations of the
Company to each of the Holders hereunder shall be limited to an amount equal to the net
proceeds to such Holder of securities sold in such registration as contemplated herein.
(ii) Each of the Holders will, if Registrable Securities held by it are included in the
securities as to which such registration, qualification or compliance is being effected,
severally and not jointly, indemnify the Company, each of its directors and officers and
each underwriter, if any, of the Company’s securities covered by such a registration
statement, each Person who controls the Company or such underwriter, each Other Stockholder
and each of their respective officers, directors, partners and members, and each Person
controlling such Other Stockholder against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration statement,
prospectus, issuer free-writing prospectus, offering circular or other document made by such
Holder in writing, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements by such Holder therein not
misleading, and will reimburse the Company, the underwriters, and such Other Stockholders,
and their respective directors, officers, partners, members, Persons or control persons for
any legal or any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement, prospectus, offering circular or
other document in reliance upon and in conformity with written information furnished to the
Company by such Holder and stated to be specifically for use therein; provided,
however, that the obligations of each of the Holders hereunder shall be limited to
an amount equal to the net proceeds to such Holder of securities sold in such registration
as contemplated herein.
(iii) Each party entitled to indemnification under this Section 2(f) (the
“Indemnified Party”) shall give notice to the party required to provide
indemnification (the “Indemnifying Party”) promptly after such Indemnified Party has
actual knowledge of any claim as to which indemnity may be sought, and shall permit the
Indemnifying Party to assume the defense of any such claim or any litigation resulting
therefrom; provided, that counsel for the Indemnifying Party, who shall conduct the
defense of such claim or any litigation resulting therefrom, shall be approved by the
Indemnified Party (whose approval shall not unreasonably be withheld) and the Indemnified
Party may
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participate in such defense at such party’s expense (unless the Indemnified Party shall
have reasonably concluded that there may be a conflict of interest between the Indemnifying
Party and the Indemnified Party in such action, in which case the fees and expenses of
counsel shall be at the expense of the Indemnifying Party), and provided
further, that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this Section 2(f) unless
the Indemnifying Party is materially prejudiced thereby. No Indemnifying Party, in the
defense of any such claim or litigation shall, except with the prior written consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or litigation.
Each Indemnified Party shall furnish such information regarding itself or the claim in
question as an Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with the defense of such claim and litigation resulting
therefrom.
(iv) If the indemnification provided for in this Section 2(f) is held by a court of
competent jurisdiction to be unavailable to an Indemnified Party with respect to any loss,
liability, claim, damage or expense referred to herein, then the Indemnifying Party, in lieu
of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other in connection
with the statements or omissions (or alleged statements or omissions) which resulted in such
loss, liability, claim, damage or expense, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the Indemnified Party
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 by the
Indemnified Party and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(v) Notwithstanding the foregoing, to the extent that the provisions on indemnification
and contribution contained in the underwriting agreement entered into in connection with any
underwritten public offering contemplated by this Agreement are in conflict with the
foregoing provisions, the provisions in such underwriting agreement shall be controlling.
(g) Information by the Holders.
(i) Each of the Holders including securities in any registration shall furnish to the
Company such information regarding such Holder and the distribution proposed by such Holder
as the Company may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in this Section 2.
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(ii) In the event that, either immediately prior to or subsequent to the effectiveness
of any registration statement, any Holder shall distribute Registrable Securities to its
partners or members, such Holder shall so advise the Company and provide such information as
shall be necessary to permit an amendment to such registration statement to provide
information with respect to such partners or members, as selling security holders. Promptly
following receipt of such information, the Company shall file an appropriate amendment to
such registration statement reflecting the information so provided. Any incremental expense
to the Company resulting from such amendment shall be borne by such Holder.
(h) Rule 144 Reporting.
With a view to making available the benefits of certain rules and regulations of the
Commission which may permit the sale of restricted securities to the public without registration,
the Company agrees to:
(i) at all times make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act (“Rule 144”);
(ii) use its reasonable best efforts to file with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act and the
Exchange Act at any time after it has become subject to such reporting requirements; and
(iii) so long as a Holder owns any Registrable Securities, furnish to such Holder, upon
request, 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, a copy of the most
recent annual or quarterly report of the Company, and such other reports and documents so
filed as such Holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing the Holder to sell any such securities without registration.
(i) Termination. The registration rights set forth in this Section 2 shall not be
available to any Holder if, (i) in the written opinion of counsel to the Company, all of the
Registrable Securities then owned by such Holder could be sold in any ninety (90)-day period
pursuant to Rule 144(k) or are otherwise freely saleable or (ii) all of the Registrable Securities
held by such Holder have been sold in a registration pursuant to the Securities Act or pursuant to
Rule 144.
SECTION 3. INTERPRETATION OF THIS AGREEMENT
(a) Directly or Indirectly. Where any provision in this Agreement refers to action to
be taken by any Person, or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
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SECTION 4. MISCELLANEOUS
(a) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed entirely
within such State without regard to conflicts of law principles.
(b) Section Headings. The headings of the sections and subsections of this Agreement
are inserted for convenience only and shall not be deemed to constitute a part thereof.
(c) Notices.
(i) All communications under this Agreement shall be in writing and shall be delivered
by hand or facsimile or mailed by overnight courier or by registered or certified mail,
postage prepaid:
(1) if to the Company, to Xxxx Corporation (or the name of the Company), 0000 Xxxx
Xxxxxx, Xxxxxx, XX 00000, Attention: General Counsel and Secretary (facsimile: (000)
000-0000), or at such other address or facsimile numbers as it may have furnished in writing
to the Holders, with a copy to Xxxxx Day, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (facsimile: (000) 000-0000), Attention: Xxxxxxx X. Xxxxxx, Esq.; and
(2) if to the Holders, to the address or facsimile provided by each Holder in Schedule
I to such Holder’s Subscription Agreement, or at such other address or facsimile number as
may have been furnished the Company in writing, with a copy to Xxxxxxx Xxxx & Xxxxxxxxx LLP,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000 (facsimile: (000) 000-0000), Attention: Xxxxxxx X.
Xxxx, Esq.
(ii) Any notice so addressed shall be deemed to be given: if delivered by hand or
facsimile, on the date of such delivery; if mailed by overnight courier, on the first
business day following the date of such mailing; and if mailed by registered or certified
mail, on the third business day after the date of such mailing.
(d) Reproduction of Documents. This Agreement and all documents relating thereto,
including, without limitation, any consents, waivers and modifications which may hereafter be
executed may be reproduced by the Holders by any photographic, photostatic, microfilm, microcard,
miniature photographic or other similar process and the Holders may destroy any original document
so reproduced. The parties hereto agree and stipulate that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative proceeding (whether
or not the original is in existence and whether or not such reproduction was made by the Holders in
the regular course of business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
(e) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon and be enforceable by the successors and assigns of each of the parties.
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(f) Entire Agreement; Amendment and Waiver. This Agreement constitutes the entire
understanding of the parties hereto relating to the subject matter hereof and supersedes all prior
understandings among such parties. This Agreement may be amended, and the observance of any term
of this Agreement may be waived, with (and only with) the written consent of the Company and the
Holders holding a majority of the then outstanding Registrable Securities. Any amendment or waiver
effected in accordance with this Section 4(f) shall be binding upon each Holder of Registrable
Securities then outstanding (whether or not such Holder consented to any such amendment or waiver).
(g) Severability. In the event that any part or parts of this Agreement shall be held
illegal or unenforceable by any court or administrative body of competent jurisdiction, such
determination shall not affect the remaining provisions of this Agreement which shall remain in
full force and effect.
(h) Subscription. By executing and delivering a Subscription Agreement to which this
Agreement is attached as a schedule, each party thereto agreed to be bound by the provisions of
this Agreement. Execution and delivery of such Subscription Agreement shall also be deemed to be
execution and delivery of this Agreement. The date of this Agreement is the Effective Date and the
provisions of this Agreement will be effective as of such date.
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