EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
DATED AS OF DECEMBER 28, 2001
AMONG
XXXXX CORPORATION LIMITED,
THE GSC INVESTORS LISTED IN SCHEDULE A
AND
CHANCERY LANE/GSC INVESTORS, L.P.
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of December
28, 2001 among Xxxxx Corporation Limited, a corporation organized under the laws
of Ontario ("Xxxxx"), the persons listed in Schedule A attached hereto
(collectively, the "GSC Investors") and CHANCERY LANE/GSC INVESTORS, L.P., a
Delaware limited partnership ("CLGI" and, together with the GSC Investors, the
"Investors"). Capitalized terms used herein but not defined when used shall have
the meanings ascribed to such terms in Section 1.
WITNESSETH
WHEREAS, Xxxxx and CLGI entered into a Debenture Purchase Agreement
dated as of December 12, 2000 (the "Debenture Purchase Agreement");
WHEREAS, pursuant to the Debenture Purchase Agreement, on December 21,
2000, CLGI acquired from Xxxxx 8.70% Subordinated Convertible Debentures in the
original aggregate principal amount of $70,500,000 (the "Debentures") that are
presently convertible into an aggregate of 21,692,307 Common Shares (the
"Conversion Shares");
WHEREAS, as contemplated under the Debenture Purchase Agreement, Xxxxx
and CLGI entered into a Registration Rights Agreement dated as of December 21,
2000 (the "Existing Registration Rights Agreement") covering the Conversion
Shares and certain related shares (the "Existing Registrable Securities");
WHEREAS, concurrently with the execution and delivery of this
Agreement, Xxxxx and CLGI are entering into that certain Conversion Inducement
Agreement (the "Conversion Inducement Agreement");
WHEREAS, pursuant to the Conversion Inducement Agreement (i) the
Debentures have been converted in accordance with their terms and (ii) Xxxxx has
caused Xxxxx Holdings U.S.A. Inc., a Delaware corporation and wholly-owned
subsidiary of Xxxxx ("Subco"), to issue to CLGI 1,650,000 shares of Subco's
preferred stock, no par value (the "Subco Preferred Shares")
WHEREAS, pursuant to the Transfer Agreement of even date herewith
between Xxxxx and the GSC Investors, the GSC Investors have transferred the
Subco Preferred Shares (which were distributed by CLGI to the GSC Investors) to
Xxxxx in exchange for 1,650,000 Common Shares (the "Initial Shares") and Xxxxx'x
covenant and agreement to deliver certain additional consideration which may, at
the election of Xxxxx, be in the form of additional Common Shares issued to the
GSC Investors in certain circumstances on December 31, 2002 and 2003,
respectively (collectively, the "Additional Shares"); and
WHEREAS, in addition to the registration rights set forth under the
Existing Registration Rights Agreement, Xxxxx is providing the registration
rights set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to and
on the terms and conditions herein set forth, the parties hereto agree to as
follows:
1. Definitions.
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As used in this Agreement, the following capitalized terms shall have
the following meanings:
"Additional Shares" shall have the meaning set forth in the Recitals.
"Affiliate" shall have the meaning set forth in Rule 405 of the
Securities Act.
"Board" shall have the meaning set forth in Section 2(b) hereof.
"Canadian Filing" shall mean either a Demand Filing to obtain a receipt
for a Canadian Prospectus in Canada pursuant to Section 2(a) of this Agreement
or a Proposed Filing by Xxxxx to file a Canadian Prospectus under Canadian
Securities Laws pursuant to Section 3(a) of this Agreement.
"Canadian Prospectus" shall mean the prospectus (including, without
limitation and unless otherwise specified, any preliminary prospectus, any
preliminary shelf prospectus, any final prospectus, any final shelf prospectus
and any prospectus that discloses information previously omitted from a
prospectus) filed under Canadian Securities Laws with Canadian Regulatory
Authorities, as amended or supplemented by any prospectus supplement or
amendment with respect to the terms of the offering of any portion of such
prospectus and by all other amendments and supplements to such prospectus,
including all material incorporated by reference in such prospectus and all
documents filed after the date of such prospectus by Xxxxx under the Canadian
Securities Laws and incorporated by reference therein.
"Canadian Regulatory Authorities" shall mean, collectively, the
securities regulatory authority in each of the Canadian provinces.
"Canadian Securities Laws" shall mean the securities laws, regulations,
policies and rules in effect in all of the Canadian provinces, as the same may
be amended from time to time.
"CLGI" shall have the meaning set forth in the Recitals.
"Common Shares" shall mean the shares of common stock, no par value, of
Xxxxx.
"Conversion Inducement Agreement" shall have the meaning set forth in
the Recitals.
"Conversion Shares" shall have the meaning set forth in the Recitals.
"Debenture Purchase Agreement" shall have the meaning set forth in the
Recitals.
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"Debentures" shall have the meaning set forth in the Recitals.
"Demand Filing" shall have the meaning set forth in Section 2(a)
hereof.
"Demand Filing Statement" shall have the meaning set forth in Section
2(a) hereof.
"Effectiveness Period" shall have the meaning set forth in Section 2(c)
hereof.
"Effective Time" shall mean (i) in the case of a U.S. Filing, the date
on which the SEC declares a Registration Statement effective or on which such
Registration Statement otherwise becomes effective or (ii) in the case of a
Canadian Filing, the date on which the last of the receipts for a final Canadian
Prospectus has been obtained from the Canadian Regulatory Authorities.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Existing Registrable Securities" shall have the meaning set forth in
the Recitals.
"Existing Registration Rights Agreement" shall have the meaning set
forth in the Recitals.
"GSC Investors" shall have the meaning set forth in the Preamble.
"Indemnified Person" shall have the meaning set forth in Section 6(a)
hereof.
"Initial Shares" shall have the meaning set forth in the Recitals.
"Investors" shall have the meaning set forth in the Preamble.
"Xxxxx" shall have the meaning set forth in the Preamble.
"NASD Rules" shall mean the Rules of the National Association of
Securities Dealers, Inc., as amended from time to time.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Piggyback Filing" shall have the meaning set forth in Section 3(a)
hereof.
"Proposed Filing" shall have the meaning set forth in Section 3(a)
hereof.
"Prospectus" shall mean either a U.S. Prospectus or a Canadian
Prospectus.
"qualification" shall mean, in the context of Canadian Securities Laws,
the qualification of trades in Subject Shares pursuant to a final prospectus
filed with, and in respect of which a
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receipt or receipts have been issued in respect of such prospectus by,
applicable Canadian Regulatory Authorities.
"qualified", in respect of Subject Shares, shall mean the qualification
of such securities.
"Registration Expenses" shall have the meaning set forth in Section
5(a) hereof.
"Registration Statement" shall mean any registration statement of Xxxxx
which covers Subject Securities pursuant to the provisions of this Agreement,
including the U.S. Prospectus, amendments and supplements to such registration
statement, including pre- and post-effective amendments, and all exhibits and
all material incorporated by reference in such registration statement.
"Restricted Security" shall mean any security unless and until:
(i) a registration statement with respect to the sale of such
security shall have been declared effective under the
Securities Act and such security shall have been disposed of
in accordance with such registration statement,
(ii) a receipt or receipts for a final Canadian Prospectus with
respect to the sale of such security shall have been obtained
from all applicable Canadian Regulatory Authorities in
accordance with Canadian Securities Laws and such security
shall have been disposed of in accordance with such
prospectus,
(iii) it is distributed to the public pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act, or
(iv) such security shall have been otherwise transferred pursuant
to an applicable exemption under the Securities Act or
Canadian Securities Laws, new certificates for such security
not bearing a legend restricting further transfer shall have
been delivered by Xxxxx and such security shall be freely
transferable to the public without either (a) registration
under the Securities Act or (b) qualification under Canadian
Securities Laws.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall have the meaning set forth in Section 2(a)
hereof.
"Subco Preferred Shares" shall have the meaning set forth in the
Recitals.
"Subject Securities" shall mean the Conversion Shares, the Initial
Shares and any Additional Shares issued to the GSC Investors, CLGI or any direct
or indirect permitted transferee or distributee of such Persons from time to
time, including, without limitation, any
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current or former partner of CLGI (or, in the case of any current or former
partner of CLGI that is itself a partnership, any partner of that partnership),
and any securities issued in respect of or in exchange for such shares or other
Subject Securities; provided, that a security ceases to be a Subject Security
when it is no longer a Restricted Security.
"underwritten", "underwritten registration", "underwritten offering" or
"underwritten registered offering" shall mean a registration in which securities
of Xxxxx are sold to an underwriter for re-offering to the public pursuant to an
effective Registration Statement and/or a final Canadian Prospectus for which a
receipt or receipts have been obtained from the applicable Canadian Regulatory
Authorities.
"Underwritten Takedown Request" shall have the meaning set forth in
Section 2(a) hereof.
"U.S. Filing" shall mean either a Demand Filing to file a registration
statement in the United States pursuant to Section 2(a) of this Agreement or a
Proposed Filing by Xxxxx to file a registration statement under the Securities
Act pursuant to Section 3(a) of this Agreement.
"U.S. Prospectus" shall mean the prospectus (including, without
limitation, any preliminary prospectus, any final prospectus and any prospectus
that discloses information previously omitted from a prospectus filed as part of
an effective registration statement in reliance upon Rule 430A under the
Securities Act) included in a Registration Statement, as amended or supplemented
by any prospectus supplement or amendment with respect to the terms of the
offering of any portion of the Subject Securities covered by such Registration
Statement and by all other amendments and supplements to such prospectus,
including all material incorporated by reference in such prospectus and all
documents filed after the date of such prospectus by Xxxxx under the Exchange
Act and incorporated by reference therein.
2. Demand Filings.
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(a) Notice. In addition to any registration rights they may have as set
forth under the Existing Registration Rights Agreement, the GSC Investors may at
any time after the date hereof, but on not more than one occasion, make a
written request to Xxxxx that Xxxxx at the GSC Investors' option (i) file a
registration statement in the United States registering for offer and sale all
or a part of its Subject Securities in the United States of America, including a
shelf registration pursuant to Rule 415 under the Securities Act (a "Shelf
Registration") if Xxxxx is eligible to use such a registration or (ii) obtain a
receipt or receipts for a preliminary Canadian Prospectus in Canada from the
applicable Canadian Regulatory Authorities, including a shelf prospectus
pursuant to National Instrument 44-102 (a "Canadian Shelf") if Xxxxx is eligible
to use a Canadian Shelf qualifying the offer and sale of all or part of its
Subject Securities in Canada, (in either case, a "Demand Filing Statement"), or,
if requested in good faith by the GSC Investors, in both jurisdictions, having
an aggregate public market offering price of not less than U.S.$20 million (or
the Canadian dollar equivalent thereof at such time based on the average of the
closing market prices for the ten-day trading period prior to the date of the
request) in each case. By way of clarification; the parties hereto intend that
if a Shelf Registration and/or a
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Canadian Shelf is requested under this Section 2(a) or under Section 2(a) of the
Existing Registration Rights Agreement, so long as such Shelf Registration or
Canadian Shelf shall remain effective in accordance with this Agreement or the
Existing Registration Rights Agreement, as the case may be, then the right to
request one registration under this Section 2(a) and the right to request any
registration under Section 2(a) of the Existing Registration Rights Agreement
shall be deemed to entitle the parties requesting such registration to request
Xxxxx to effect an underwritten, widely-distributed "takedown" of such Shelf
Registration or Canadian Shelf once pursuant to this Section 2(a) and twice
pursuant to Section 2(a) of the Existing Registration Rights Agreement (an
"Underwritten Takedown Request"). In addition, the parties requesting such
registration also shall be entitled to request Xxxxx to effect an unlimited
number of block trades (whether or not underwritten) and an unlimited number of
non-underwritten takedowns of such Shelf Registration. In any such case, (i)
such registration must be made with the SEC under and in accordance with
provisions of the Securities Act, and (ii) such receipt or receipts must be
obtained from all of the applicable Canadian Regulatory Authorities in
accordance with Canadian Securities Laws (in either case, a "Demand Filing").
All requests made pursuant to this paragraph will specify the proposed aggregate
number of the Subject Securities to be registered or qualified and will also
specify the intended methods of disposition thereof.
(b) Restrictions. Each Demand Filing Statement shall be filed as soon
as possible but in no event later than 60 days (subject to the last sentence of
this Section 2(b)) after the date the GSC Investors make the written request for
registration and/or qualification under the preceding paragraph. The GSC
Investors shall not be permitted to make the written request for registration
and/or qualification under the preceding paragraph, or an Underwritten Takedown
Request, more than once in any six-month period and no sooner than six months
after the completion of any prior demand offering. Without limiting Xxxxx'x
obligation to effect any Demand Filing or Underwritten Takedown Request pursuant
to this Section 2 and to pay for any and all Registration Expenses associated
therewith (as provided in Section 5 hereof), a registration and/or qualification
or Underwritten Takedown Request requested pursuant to this Section 2 shall not
be counted as a Demand Filing Statement for purposes of the first sentence of
Section 2(a) if the GSC Investors have not been able to sell at least 50% of the
Subject Securities requested to be included in such registration and/or
qualification or Underwritten Takedown Request. In addition, a Demand Filing
Statement shall not be deemed to have been effected (i) unless a registration
statement with respect thereto has been declared effective by the SEC and
remains effective in compliance with the provisions of the Securities Act or
unless a receipt or receipts for a final Canadian Prospectus with respect
thereto has been issued by all applicable Canadian Regulatory Authorities and
such prospectus remains in compliance with Canadian Securities Laws until the
earlier of (x) such time as all of the Subject Securities covered thereby have
been disposed of in accordance with such registration statement and/or
prospectus and (y) in the case of any Shelf Registration, 2 years (subject to
extension at the request of the GSC Investors if all of the Subject Securities
covered thereby have not been disposed of in accordance with such Shelf
Registration) after the date on which the staff of the SEC has indicated that it
is satisfied with the registration statement and all responses to its comments
and that it is prepared upon the proper filing of a pricing amendment to declare
the registration statement effective, or
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in the case of a Canadian Shelf, 2 years after the date on which a receipt or
receipts for a final Canadian Shelf have been issued by the applicable Canadian
Regulatory Authorities, (ii) if, after the registration statement with respect
thereto has become effective, or a receipt or receipts for such prospectus have
been issued, such registration or prospectus is interfered with by any stop
order, injunction or other order or requirement of the SEC or other governmental
or regulatory agency including a Canadian regulatory authority or court for any
reason other than a violation of applicable law by the GSC Investors and has not
thereafter become effective or (iii) if, in the case of an underwritten
offering, the conditions to closing specified in the underwriting agreement to
which Xxxxx is a party are not satisfied, other than by reason of any breach or
failure by the GSC Investors or any other holder; provided, that if such demand
occurs during a Black Out Period (as defined below) or other period (not to
exceed 90 days) during which Xxxxx is prohibited or restricted from filing a
registration statement or a Canadian Prospectus pursuant to any underwriting or
purchase agreement relating to an underwritten Rule 144A offering or registered
or qualified public offering of securities in which the GSC Investors were
offered piggy-back rights pursuant to Section 3 (a "Lock Up Period"), Xxxxx
shall notify the GSC Investors of the basis therefore and shall not be required
to notify the holders of any Subject Securities of such demand or file such
Registration Statement or Canadian Prospectus prior to the end of the Black Out
Period or Lock Up Period, as the case may be, in which event, Xxxxx will file
such Registration Statement or Canadian Prospectus no later than the later of
(a) 120 days after the original demand and (B) 60 days after the end of the
Black Out Period or Lock Up Period, as the case may be; and provided, further,
that Xxxxx may postpone the filing of any Registration Statement and/or Canadian
Prospectus (and, in the case of a Pending Event Suspension Period only, suspend
the effectiveness of any registration or qualification, suspend the use of any
Prospectus and shall not be required to amend or supplement the Registration
Statement, any related Prospectus or any document incorporated therein by
reference (other than an effective Registration Statement or Canadian Prospectus
being used in an underwritten offering)) (I) for a period not to exceed an
aggregate of 75 days hereunder (a "Pending Event Suspension Period") in the
event that (1) an event or circumstance occurs and is continuing that has not
been publicly disclosed and, if not disclosed in the Registration Statement, any
related Prospectus or any document incorporated therein by reference as then
amended or supplemented would, in the good faith reasonable judgment of the
Board of Directors of Xxxxx (the "Board"), result in the Registration Statement,
and any related Prospectus, or Canadian Prospectus or any such document
containing an untrue statement of a material fact or omitting 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 (2) in the good faith judgment of the Board, after
consultation with its outside securities counsel, Xxxxx has a bona fide business
purpose for not then disclosing the existence of such event or circumstance or
(II) for a period not to exceed an aggregate of 120 days hereunder, in the event
that Xxxxx, for its own account or the account of others, has pending or is
currently engaged in the process of and proposes to register Common Shares for
sale in an underwritten public offering on Form X-0, X-0 or S-3, their successor
forms or any other form under the Securities Act appropriate for a public
offering of such securities of Xxxxx (other than a registration on Form S-8), or
in an underwritten public offering pursuant to a Canadian Prospectus, in each
case in an offering in which the GSC Investors have been or will be offered
piggy-back rights pursuant to Section 3 (a
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"Pending Registration Suspension Period") and, together with a Pending Event
Suspension Period, a "Black Out Period"); provided, further, that any period
suspended, including the Effectiveness Period, shall be extended by the number
of days in any Black Out Period occurring during such Period.
(c) Effectiveness. Xxxxx agrees to use its reasonable best efforts to
cause each such Demand Filing Statement to be declared effective by (i) the SEC
and/or (ii) the applicable Canadian Regulatory Authorities, as the case may be,
as promptly as is practicable and in any event within 60 calendar days after
filing, and to keep it continuously effective for a period of 180 days following
the dates on which each such Demand Filing Statement is declared effective and
60 calendar days following the date on which a receipt or receipts are obtained
therefor from the applicable Canadian Regulatory Authorities or until all
Subject Securities included therein have been sold, if earlier and, in the case
of a Shelf Registration or a Canadian Shelf, for the periods referred to in
clause (i)(y) of the last sentence of Section 2(b) (in either case, the
"Effectiveness Period").
(d) Priority of Securities in Demand Filings. In connection with any
underwritten Demand Filing, if the managing underwriter or underwriters advise
Xxxxx in writing that, in its or their reasonable opinion, the inclusion of the
number of securities proposed to be sold exceeds the number which can be sold in
such offering at the requested price per share, Xxxxx will include in such
registration and/or qualification the number of securities which, in the
reasonable opinion of such underwriter or underwriters, can be sold as follows:
(i) first, the Subject Securities requested to be included in such Demand Filing
by the GSC Investors; (ii) second, the Subject Securities requested to be
included in such Demand Filing, pro rata among the holders of Subject Securities
which have requested their Subject Securities to be included therein pursuant to
piggy-back registration rights; (iii) third, any Common Shares Xxxxx proposes to
sell; and (iv) fourth, other Common Shares requested to be included in such
Demand Filing.
(e) Selection of Underwriters. The GSC Investors shall have the right,
with respect to any Registration Statement or final Canadian Prospectus to be
filed as a result of a Demand Filing, to determine whether the sale of the
Subject Securities under such registration statement or prospectus shall be
underwritten or not, and any managing underwriter or underwriters will be of
nationally recognized standing in the applicable jurisdiction and which will be
selected by the GSC Investors with the consent of Xxxxx, which will not be
unreasonably withheld or delayed.
(f) Registration Statement Form. Xxxxx shall select the Registration
Statement form for any registration pursuant to this Section 2 provided that
Xxxxx shall use Form S-3 or F-3 or shall use a Canadian short form prospectus,
in each case if eligible to do so.
3. Piggyback Filing Rights.
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(a) Rights to Piggyback. Subject to the last sentence of this Section
3(a), if at any time after the date hereof, Xxxxx proposes to file either (i) a
registration statement under the Securities Act or (ii) a Canadian Prospectus
under Canadian Securities Laws (in either case, a "Proposed Filing") with
respect to any proposed public offering by Xxxxx for its own account or
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by any holders of Common Shares (or securities convertible into or exchangeable
or exercisable for Common Shares) and the registration form or prospectus to be
used may be used for the registration or qualification of the Subject Securities
(a "Piggyback Filing"), Xxxxx will give prompt written notice to the Investors
of its intention to effect such a registration or qualification, specifying if
such Piggyback Filing contemplates an underwritten offering, and will use its
reasonable best efforts, subject to Section 3(b) below, to include in such
Piggyback Filing all Subject Securities with respect to which Xxxxx has received
written request from the Investors for inclusion therein within 15 days after
receipt by the Investors of Xxxxx'x notice; provided; however, in the case of a
Piggyback Filing in the form of a Shelf Registration and/or a Canadian Shelf
requested under Section 2(a) of this Agreement or under Section 2(a) of the
Existing Registration Rights Agreement, the Investors shall be entitled to
written notice of such Piggyback Filing and to make a written request for
inclusion of all of their Subject Securities therein for the sole purposes of
(i) selling such securities thereunder in respect of an Underwritten Takedown
Request pursuant to Section 2(a) of this Agreement or Section 2(a) of the
Existing Registration Rights Agreement and no other takedown requests and (ii)
selling such securities thereunder in block trades. Subject Securities with
respect to which such requests for registration or qualification have been
received will be registered or qualified by Xxxxx and offered to the public
pursuant to this Section 3 on the same terms and subject to the same conditions
applicable to the registration or qualification in a Proposed Filing of Common
Shares to be sold by Xxxxx or by persons selling under such Proposed Filing. In
no event shall Xxxxx be required by any Investor requesting inclusion, pursuant
to this Section 3(a), of its Subject Securities in any Piggyback Filing to
reduce the number of securities proposed to be sold by Xxxxx or alter the terms
of the securities proposed to be sold by Xxxxx in order to induce the managing
underwriter or underwriters to permit Subject Securities to be included in a
Proposed Filing. The GSC Investors will not be entitled to include Subject
Securities pursuant to this Section 3(a) in any Registration Statement on Form
S-4 or Form S-8 under the Securities Act (or any successor form or equivalent
form applicable to Xxxxx) or Canadian Prospectus pertaining to the registration
or qualification by prospectus of any securities of Xxxxx in connection with
mergers, acquisitions, exchange offers, subscription offers, dividend
reinvestment plans or stock options or other employee benefit plans.
(b) Priority on Piggyback Filings. In connection with an underwritten
Piggyback Filing, if the managing underwriter or underwriters advise Xxxxx in
writing that, in its or their reasonable opinion, the inclusion of the number of
securities proposed to be registered or qualified exceeds the number which can
be sold in such offering at the requested price per share, Xxxxx will include in
such registration or qualification the number of securities which, in the
reasonable opinion of such underwriter or underwriters, can be sold as follows:
(i) first, the Common Shares Xxxxx proposes to sell for its own account or if
the registration or qualification is in response to a Demand Filing right of a
Person whose registration rights exist as of the date hereof and require such a
priority (including those registration rights under Section 2 of this
Agreement), the securities that the Person(s) demanding such registration or
qualification propose or proposes to sell to the extent of such a priority, (ii)
second, to the extent that any or all Subject Securities have not been given
priority under the immediately preceding clause (i) such remaining Subject
Securities requested to be included in such registration or qualification and
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any securities requested to be included in such registration or qualification by
a Person who exercises its rights to have its securities included in such
registration or qualification pursuant to this Agreement pro rata among them and
(iii) third, other Common Shares requested to be included in such registration
or qualification.
(c) Selection of Underwriters. If any Piggyback Filing is an
underwritten offering, Xxxxx will select a managing underwriter or underwriters
to administer the offering, which managing underwriter or underwriters will be
of nationally recognized standing in the applicable jurisdictions.
(d) Effectiveness. Xxxxx agrees to use its reasonable best efforts to
cause each such Piggyback Filing to be declared effective by the SEC and/or to
have a receipt for a final Canadian Prospectus issued therefor by the applicable
Canadian Regulatory Authorities, as the case may be, within 60 calendar days
after filing, and to keep it continuously effective for a period of 120 days
following the dates on which each such Piggyback Filing is declared effective or
until all Subject Securities included therein have been sold, if earlier, and to
keep it continuously effective for a period of 60 days following the dates on
which each such Piggyback Filing is qualified or until all Subject Securities
included therein have been sold, if earlier.
(e) Lock Up of the Investors. If Xxxxx has complied in all material
respects with its obligation with respect to a Demand Filing or a Piggy-Back
Filing that is a firm commitment underwritten public offering, each holder of
Subject Securities, upon the written request of a managing underwriter with
respect to such offering, shall agree not to sell or otherwise dispose of any
Subject Securities (other than those offered in the public offering) for a
period not to exceed 90 days from the consummation of the public offering;
provided, however, the foregoing shall not apply, in the case of any Demand
Filing or a Piggy-Back Filing that is a firm commitment underwritten public
offering that is for the account of a selling shareholder of Xxxxx, to any
holder of Subject Securities who elects not to participate in such secondary
offering due to the fact that the number of Subject Securities originally
requested by such holder to be included in such offering has been limited by the
operation of Section 2(d) or Section 3(b), as the case may be, to an amount that
is less than 50% of the total number of Subject Securities originally requested
by such holder to be included in such offering.
4. Registration Procedures.
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In connection with Xxxxx'x obligation to (i) in the case of U.S.
Filings, file Registration Statements or (ii) in the case of Canadian filings,
obtain receipts for Canadian Prospectuses, pursuant to Sections 2 or 3 hereof,
Xxxxx shall use its reasonable best efforts to effect such registration and/or
obtain such a receipt or receipts for such Canadian Prospectus to permit the
sale of such Subject Securities in accordance with the intended method or
methods of disposition thereof, and pursuant thereto Xxxxx shall:
(a) before filing a Registration Statement or Prospectus or any
amendments or supplements thereto, including documents incorporated by reference
after the initial filing of the Registration Statement or Canadian Prospectus,
furnish to (i), in connection with Xxxxx'x
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obligations pursuant to Section 2, the GSC Investors, or (ii), in connection
with Xxxxx'x obligations pursuant to Section 3, the Investors, and the managing
underwriters, if any, copies of all such documents proposed to be filed, which
documents will be subject to the review and comment of the GSC Investors and
such managing underwriters and their respective counsel, making Xxxxx'x
representatives available for discussion of such document and make such changes
in such document prior to the filing thereof as counsel for the GSC Investors or
underwriters may reasonably request, and Xxxxx shall not file any Registration
Statement or amendment thereto or any Prospectus or any amendment or supplement
thereto (including such documents incorporated by reference) to which the GSC
Investors or the Investors (as the case may be) or the managing underwriters, if
any, shall reasonably object on a timely basis;
(b) other than during a Black Out Period, prepare and file with the SEC
and/or Canadian Regulatory Authorities, as the case may be, (i) in the case of a
U.S. Filing, such amendments and post-effective amendments to any Registration
Statement, and such supplements to the U.S. Prospectus, and (ii) in the case of
a Canadian Filing, such amendments or supplements to a Canadian Prospectus, in
either such case, as may be reasonably requested by the GSC Investors or the
Investors (as the case may be) or any underwriter of Subject Securities, or as
may be required by either (A) the Securities Act or any rules or regulations
promulgated thereunder or (B) Canadian Securities Laws, respectively, or
otherwise necessary or advisable to keep the Registration Statement or Canadian
Prospectus effective for the applicable period, and provide copies of such
document to counsel to the GSC Investors or the Investors (as the case may be)
and to the managing underwriters, if any;
(c) (i) in the case of a U.S. Filing, cause the final U.S. Prospectus
as supplemented to be filed pursuant to Rule 424 under the Securities Act if
then required by the Securities Act and (ii) in the case of a Canadian Filing,
to cause the preliminary Canadian Prospectus to be cleared and obtain a receipt
or receipts for a final Canadian Prospectus under Canadian Securities Laws from
the applicable Canadian Regulatory Authorities;
(d) comply with the provisions of (i) in the case of a U.S. Filing, the
Securities Act and (ii) in the case of a Canadian Filing, Canadian Securities
Laws with respect to the disposition of all securities covered by such
Registration Statement or Canadian Prospectus, as the case may be, during the
applicable period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement, supplement to the U.S.
Prospectus or the Canadian Prospectus or amendments or supplements thereto;
(e) notify promptly the GSC Investors or the Investors (as the case may
be) and the managing underwriters, if any, and (if requested by any such Person)
confirm such notification in writing:
(1) when (i) in the case of a U.S. Filing, the U.S. Prospectus or any
U.S. Prospectus supplement or post-effective amendment has been filed, and,
with respect to the Registration Statement or any post-effective amendment,
when the same has become effective and (ii) in the case of a Canadian
Filing, the Canadian Prospectus or any
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amendment or supplement thereto has been filed and when a final receipt or
receipts for the same have been obtained from the Canadian Regulatory
Authorities, as the case may be,
(2) of any request by (i) in the case of a U.S. Filing, the SEC or (ii)
in the case of a Canadian Filing, the Canadian Regulatory Authorities, for
amendments or supplements to either (A) the Registration Statement or the
U.S. Prospectus or (B) the Canadian Prospectus, as the case may be, or of
any request by such Person or Persons for any additional information,
(3) in the case of a U.S. Filing, of the issuance by the SEC of any
stop order suspending the effectiveness of the Registration Statement or
the initiation or threatening of any proceedings for that purpose,
(4) of the receipt by Xxxxx of any notification with respect to the
suspension of the qualification of the Subject Securities for sale in any
jurisdiction, including the issuance of any cease-trade order with respect
to any of the Subject Securities in any jurisdiction, or the initiation or
threatening of any proceeding for such purposes, and
(5) of the happening of any event or the existence of any state of
facts that requires the making of any changes in either (i) in the case of
a U.S. Filing, the Registration Statement or the U.S. Prospectus included
therein or (ii) in the case of a Canadian Filing, the Canadian Prospectus,
as the case may be, so that, as of such date, such (A) Registration
Statement and U.S. Prospectus or (B) Canadian Prospectus, as the case may
be, do or does not contain an untrue statement of a material fact and do
not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of a Prospectus, in
light of the circumstances under which they were made) not misleading
(which notification shall be accompanied by an instruction to the GSC
Investors or the Investors (as the case may be) to suspend the use of the
Prospectus until the requisite changes have been made);
(f) (i) in the case of a U.S. Filing, use its reasonable best efforts
to prevent the issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of the Registration Statement at the earliest
possible time and (ii) in the case of a Canadian Filing, use its reasonable best
efforts to prevent the issuance, and if issued to obtain the withdrawal, of any
cease-trade order with respect to the Subject Securities at the earliest
possible time;
(g) if reasonably requested by the GSC Investors or the Investors (as
the case may be) or the managing underwriter, immediately incorporate in a
Prospectus supplement or post-effective amendment such information as the GSC
Investors or the Investors (as the case may be) and the managing underwriters
agree should be included therein relating to the sale of the Subject Securities,
including, without limitation, information with respect to the number of Subject
Securities being sold to such underwriters, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
underwritten (or best efforts underwritten) offering of the Subject Securities
to be sold in such offering, including the plan of
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distribution therefor; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
(h) promptly upon receipt but reasonably prior to the filing of any
document which is to be incorporated by reference into either (i) in the case of
a U.S. Filing, the Registration Statement or the U.S. Prospectus (after initial
filing of the Registration Statement) or (ii) in the case of a Canadian Filing,
the Canadian Prospectus (after initial filing of the first preliminary Canadian
Prospectus), as the case may be, (A) provide copies of such document to counsel
to the GSC Investors or the Investors (as the case may be) and to the managing
underwriters, if any, and (B) make Xxxxx'x representatives available for
discussion of such document and make such changes in such document prior to the
filing thereof as counsel for the GSC Investors or the Investors (as the case
may be) or the underwriters may reasonably request;
(i) furnish to each GSC Investor or Investor (as the case may be) and
managing underwriter, without charge, at least two signed copies of (i) in the
case of a U.S. Filing, the Registration Statement and any post-effective
amendment thereto, and (ii) in the case of a Canadian Filing, the Canadian
Prospectus and any amendment or supplement thereto, in either such case
including financial statements and schedules, all documents incorporated therein
by reference and all exhibits (including those incorporated by reference);
(j) deliver to the GSC Investors or the Investors (as the case may be)
and the underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) and any amendment or supplement thereto
as such Persons may reasonably request; Xxxxx consents (except during the
continuance of any event described in Section 4(e)(5) above) to the use of the
Prospectus and any amendment or supplement thereto by the GSC Investors or the
Investors (as the case may be) and the underwriters, if any, in connection with
the offering and sale of the Subject Securities covered by the Prospectus and
any amendment or supplement thereto;
(k) in the case of a U.S. Filing, prior to any offering of Subject
Securities pursuant to any Registration Statement, (i) Xxxxx shall register or
qualify or cooperate with the GSC Investors or the Investors (as the case may
be) and their counsel in connection with the registration or qualification of
such Subject Securities for offer and sale under the securities or "blue sky"
laws of such jurisdictions of or within the United States of America as the GSC
Investors or the Investors (as the case may be) or any underwriter reasonably
requests in writing, (ii) keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of offers and sales in
such jurisdictions for so long as may be necessary to enable the GSC Investors
or the Investors (as the case may be) or the managing underwriters, if any, to
complete its distribution of Subject Securities pursuant to a Registration
Statement, and (iii) take any and all other actions necessary or advisable to
enable the disposition in such jurisdictions of the Subject Securities covered
by the Registration Statement; provided; however, that in no event shall Xxxxx
be obligated to (A) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to so
qualify but for this
-13-
Section 4(k), or (B) file any general consent to service of process in any such
jurisdiction where it is not as of the relevant date so subject;
(l) cooperate with the GSC Investors or the Investors (as the case may
be) and the managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Subject Securities to be sold pursuant
to the Registration Statement or the Canadian Prospectus, which certificates, if
so required by any securities exchange upon which any Subject Securities are
listed, shall be penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and which certificates
shall be free of any restrictive legends and in such denominations and
registered in such names as the GSC Investors or the Investors (as the case may
be) or the managing underwriters may request at least two business days prior to
the sale of Subject Securities pursuant to (i) in the case of a U.S. Filing, the
Registration Statement, and (ii) in the case of a Canadian Filing, the Canadian
Prospectus;
(m) use its reasonable best efforts to cause the Subject Securities
covered by the applicable Registration Statement or Canadian Prospectus, as the
case may be to be registered with or approved by such other governmental
agencies or authorities of or within the United States of America or Canada, as
the case may be, as may be necessary or advisable to enable the GSC Investors or
the Investors (as the case may be) or the managing underwriters, if any, to
consummate the disposition of such Subject Securities;
(n) if any fact contemplated by Section 4(e)(5) above shall exist,
promptly prepare a supplement or post-effective amendment to (i) in the case of
a U.S. Filing, the Registration Statement or the related U.S. Prospectus or (ii)
in the case of a Canadian Filing, the Canadian Prospectus, as the case may be,
or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Subject
Securities, the Prospectus will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. If Xxxxx notifies the GSC
Investors or the Investors (as the case may be) in writing of the occurrence of
any event contemplated by Section 4(e)(5) above, the GSC Investors or the
Investors (as the case may be) agrees, as a consequence of the inclusion of any
of the GSC Investors' or the Investors' (as the case may be) Subject Securities
in (A) in the case of a U.S. Filing, the Registration Statement and (B) in the
case of a Canadian Filing, the Canadian Prospectus, as the case may be,
forthwith upon receipt of such written notice from Xxxxx to suspend the use of
such Prospectus until the requisite changes to the Prospectus have been made;
(o) use all reasonable best efforts to cause the Subject Securities
covered by (i) in the case of a U.S. Filing, the Registration Statement and (ii)
in the case of a Canadian Filing, the Canadian Prospectus, as the case may be,
to be listed for quotation on, at the option of the GSC Investors or the
Investors (as the case may be) or the holder of Subject Securities, (A) in the
case of a U.S. Filing, the New York Stock Exchange or, if the Common Shares are
not then listed on the New York Stock Exchange, such other securities exchange
on which similar securities issued by Xxxxx are then listed in the United States
and (B) in the case of a Canadian Filing, The Toronto Stock Exchange, as the
case may be, or any other stock exchange or trading system on
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which the Subject Securities primarily trade on or prior to the Effective Time
of (x) the Registration Statement or (y) the Canadian Prospectus, as the case
may be;
(p) enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings and a
"market stand-off" or "blackout" agreement for such period (not to exceed 180
days) as may be reasonably requested by the GSC Investors or the Investors (as
the case may be) and the managing underwriters, if any) and take all such other
actions in connection therewith as may be reasonably requested by the GSC
Investors or the Investors (as the case may be) and the managing underwriters,
if any, in order to expedite or facilitate the disposition of such Subject
Securities and in such connection, whether or not an underwriting agreement is
entered into and whether or not the offering is an underwritten offering:
(1) make such representations and warranties to the GSC Investors or
the Investors (as the case may be) and the underwriters, if any, in form,
substance and scope as are customarily made by issuers to selling
shareholders and underwriters in underwritten offerings;
(2) obtain opinions of counsel to Xxxxx and bring-downs of such
opinions (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the GSC Investors or the Investors (as the
case may be) and the managing underwriters, if any) addressed to the GSC
Investors or the Investors (as the case may be) and the underwriters, if
any, covering: (i) in the case of an underwritten offering, the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by the GSC Investors or
the Investors (as the case may be) and the underwriters (it being agreed
that the matters to be covered shall include, without limitation, as of the
date of the opinion and as of the Effective Time of (A) in the case of a
U.S. Filing, the Registration Statement or most recent post-effective
amendment thereto and (B) in the case of a Canadian Filing, the Canadian
Prospectus or most recent amendment thereto, as the case may be, a
statement as to the absence from (x) in the case of a U.S. Filing, the
Registration Statement and the U.S. Prospectus and (y) in the case of a
Canadian Filing, the Canadian Prospectus, in either such case including the
documents incorporated by reference therein, of an untrue statement of a
material fact or the omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading), and
(ii) in the case of offerings not involving an underwriter, the matters
customarily covered in opinions requested in the type of offering involved,
and, in the case of (i) and (ii), stating that (I) in the case of a U.S.
Filing, the Registration Statement or (II) in the case of a U.S. Filing,
the Canadian Prospectus complies, as to form, with the requirements of the
Securities Act and the Canadian Securities Laws, as the case may be;
(3) obtain "cold comfort" letters and updates thereof from the
independent public accountants of Xxxxx (and, if necessary, from the
independent public accountants of any Subsidiary of Xxxxx or of any
business acquired by Xxxxx for which financial
-15-
statements and financial data are, or are required to be, included in (i)
in the case of a U.S. Filing, the Registration Statement and (ii) in the
case of a Canadian Filing, the Canadian Prospectus) addressed to the GSC
Investors or the Investors (as the case may be) and the underwriters, if
any, such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters by underwriters in connection
with underwritten offerings;
(4) if an underwriting agreement is entered into, the same shall set
forth in full the indemnification and contribution provisions and
procedures of Section 6 hereof with respect to all parties to be
indemnified pursuant to Section 6 hereof; and
(5) Xxxxx shall deliver such documents and certificates as may be
reasonably requested by the GSC Investors or the Investors (as the case may
be) and the managing underwriters, if any, to evidence the continued
validity of the representations and warranties made pursuant to Section
4(p)(1) above and to evidence compliance with any conditions contained in
the underwriting agreement and/or other agreement or agreements entered
into by Xxxxx.
The above shall be done at each closing under such underwriting or similar
agreement or as and to the extent required thereunder;
(q) make available for inspection by the GSC Investors or the Investors
(as the case may be) and any underwriter participating in any disposition
pursuant to such (i) in the case of a U.S. Filing, Registration Statement and
(ii) in the case of a Canadian Filing, Canadian Prospectus, and any attorney
and/or accountant retained by the GSC Investors or the Investors (as the case
may be) or such underwriter, all pertinent financial and other records,
pertinent corporate documents and properties of Xxxxx and its Subsidiaries,
cause the officers, directors, agents and employees of Xxxxx and its
Subsidiaries to supply all information in each case reasonably requested by the
GSC Investors or the Investors (as the case may be) or any such underwriter,
attorney or accountant in connection with such (A) in the case of a U.S. Filing,
Registration Statement and (B) in the case of a Canadian Filing, Canadian
Prospectus, provide the GSC Investors or the Investors (as the case may be) and
any such underwriter, attorney or accountant with opportunities to discuss the
business of Xxxxx and its Subsidiaries with Xxxxx'x officers and provide the GSC
Investors or the Investors (as the case may be) and any such underwriter,
attorney or accountant with opportunities to discuss the business of Xxxxx and
its Subsidiaries with the independent public accountants who have certified
Xxxxx'x most recent annual financial statements in each case, as is customary
for similar due diligence investigations; provided, that any records,
information or documents that are designated in writing by Xxxxx, in good faith,
as confidential shall be kept confidential by such Persons unless disclosure is
made in connection with a court proceeding or required by law, or such records,
information or documents become available to the public generally or through a
third party without an accompanying obligation of confidentiality; and provided;
further, that, if the foregoing inspection and information gathering would
otherwise disrupt Xxxxx'x conduct of its business, such inspection and
information gathering shall, to the greatest extent possible, be coordinated
-16-
on behalf of the GSC Investors or the Investors (as the case may be) and the
other parties entitled thereto by one counsel designated by and on behalf of the
GSC Investors or the Investors (as the case may be) and other parties;
(r) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of (i) in the case of a U.S. Filing, the SEC
and (ii) in the case of a Canadian Filing, the applicable Canadian Regulatory
Authorities, as the case may be, and, in the case of a U.S. Filing only, make
generally available to its securityholders as soon as practicable, but in any
event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Securities Act), an
earnings statement of Xxxxx and its Subsidiaries complying with Section 11(a) of
the Securities Act and the rules and regulations of the SEC thereunder
(including, at the option of Xxxxx, Rule 158);
(s) in the case of a U.S. Filing, in the event that any broker-dealer
registered under the Exchange Act shall be an "affiliate" (as defined in Rule
2720(b)(1) of the NASD Rules (or any successor provision thereto) of Xxxxx or
has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD Rules
(or any successor provision thereto) and such broker-dealer shall underwrite,
participate as a member of an underwriting syndicate or selling group or assist
in the distribution of any Subject Securities covered by a Registration
Statement, whether as a holder of such Subject Securities or as an underwriter,
a placement or sales agent or a broker or dealer in respect thereof, or
otherwise, Xxxxx shall assist such broker-dealer in complying with the
requirements of the NASD Rules, including, without limitation, by (i) engaging a
"qualified independent underwriter" (as defined in Rule 2720(b)(15) of the NASD
Rules (or any successor provision thereto) to participate in the preparation of
the registration statement or prospectus relating to such Subject Securities, to
exercise usual standards of due diligence in respect thereto and to recommend
the public offering price of such Subject Securities, (ii) indemnifying such
qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof, and (iii) providing such information
to such broker-dealer as may be required in order for such broker-dealer to
comply with the requirements of the NASD Rules;
(t) use its reasonable best efforts to assist the GSC Investors or the
Investors (as the case may be) and the underwriters, if any, in marketing the
Subject Securities, including causing its executive officers to participate in
such "road show" presentations and conference calls as may be customary in the
marketing of equity securities; provided; however; that the GSC Investors or the
Investors (as the case may be) shall cause the managing underwriters or
placement agents of any Subject Securities to give such executives reasonable
advance notice concerning the scheduling of any such presentation or call;
(u) furnish to the GSC Investors or the Investors (as the case may be)
and the underwriters, if any, a reasonable number of copies of (i) in the case
of a U.S. Filing, the Registration Statement or U.S. Prospectus contemplated
hereby and (ii) in the case of a Canadian Filing, the Canadian Prospectus, or
other such documents as the GSC Investors or the Investors (as the case may be)
or the underwriters, if any, may reasonably request in order to facilitate the
public offering of the Subject Securities; and
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(v) take all other steps necessary or advisable to (i) in the case of a
U.S. Filing, effect the registration, offering and sale of the Subject
Securities covered by the Registration Statement or U.S. Prospectus contemplated
hereby and (ii) in the case of a Canadian Filing, effect the granting of a final
receipt for a final Canadian Prospectus, offering and sale of the Subject
Securities covered by the Canadian Prospectus contemplated hereby.
Xxxxx may require the GSC Investors or the Investors (as the case may
be) to furnish to Xxxxx such information regarding the GSC Investors or the
Investors (as the case may be) and the distribution of such securities as is
required to be disclosed in (i) in the case of a U.S. Filing, the Registration
Statement or (ii) in the case of a Canadian Filing, the Canadian Prospectus, as
the case may be.
The GSC Investors or the Investors (as the case may be) agrees by
acquisition of such Subject Securities that, upon receipt of any notice from
Xxxxx of the happening of any event of the kind described in Section 4(e)(5)
hereof, the GSC Investors or the Investors (as the case may be) will forthwith
discontinue disposition of Subject Securities pursuant to the Registration
Statement until the GSC Investors' or the Investors' (as the case may be)
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 4(n) hereof, or until it is advised in writing by Xxxxx that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the Prospectus, and,
if so directed by Xxxxx, the GSC Investors or the Investors (as the case may be)
will deliver to Xxxxx (at Xxxxx'x expense) all copies, other than permanent file
copies then in the GSC Investors' or the Investors' (as the case may be)
possession, of the Prospectus covering such Subject Securities current at the
time of receipt of such notice; provided, that nothing in this paragraph shall
prohibit or restrict the GSC Investors or the Investors (as the case may be)
from effecting sales or transfers otherwise than under a Registration Statement
or Canadian Prospectus. In the event Xxxxx shall give any such notice, the time
periods mentioned in Section 2(c) hereof shall be extended by the number of days
during the period from and including the date of the giving of such notice to
and including the date when the GSC Investors or the Investors (as the case may
be) either receives the copies of the supplemented or amended Prospectus
contemplated by Section 4(n) hereof or is advised in writing by Xxxxx that the
use of the Prospectus may be resumed.
5. Registration Expenses.
----------------------
(a) All expenses incident to Xxxxx'x performance of, or compliance
with, this Agreement, including without limitation:
(1) all registration and filing fees (including with respect to filings
required to be made with the New York Stock Exchange or The Toronto Stock
Exchange or other national securities exchange);
(2) (i) in the case of a U.S. Filing, fees and expenses of compliance
with securities or blue sky laws of or within the United States of America
(including fees and disbursements of counsel for the underwriters or
selling holders in connection with blue
-18-
sky qualifications of the Subject Securities and determination of their
eligibility for investment under the laws of such jurisdictions as the
managing underwriters or the GSC Investors may designate) or (ii) in the
case of a Canadian Filing, fees and expenses of compliance with Canadian
Securities Laws (including fees and disbursements of counsel for the
underwriters or selling holders in connection with the obtaining of
receipts for the Canadian Prospectus and determination of the eligibility
for investment of the Subject Securities under the laws of all Canadian
provinces);
(3) printing, messenger, telephone, delivery, distribution and
reproduction expenses;
(4) fees and disbursements of counsel for Xxxxx and all of the fees and
disbursements of counsel for the GSC Investors and all other Investors
seeking registration (selected by the GSC Investors with respect to any
Demand Filing and also selected by the GSC Investors with respect to any
Piggyback Filing, unless the GSC Investors are not seeking registration in
such Piggyback Filing, in which case such counsel shall be selected by such
other Investors holding a majority of the Subject Securities seeking
registration), including, without limitation, the expenses of any opinions
required by or incident to such performance, and fees and disbursements for
other advisors for the GSC Investors;
(5) fees and disbursements of all independent certified public
accountants of Xxxxx (including the expenses of any special audit and "cold
comfort" letters required by or incident to such performance);
(6) fees and disbursements of underwriters customarily paid by the
issuers or sellers of securities (excluding discounts, commissions or fees
of underwriters, selling brokers, dealer managers or similar securities
industry professionals relating to the distribution of the Subject
Securities or legal expenses of any person other than Xxxxx and the GSC
Investors);
(7) fees and expenses of other Persons, including experts, retained by
Xxxxx; and
(8) all out-of-pocket expenses and disbursements arising out of or
related to any marketing efforts undertaken pursuant to Section 4(t) of
this Agreement.
All such expenses (being herein called "Registration Expenses") will be borne by
Xxxxx (to the extent permitted by applicable law), regardless whether (i) in the
case of a U.S. Filing, the Registration Statement becomes effective or (ii) in
the case of a Canadian Filing, a receipt is issued for the Canadian Prospectus.
To the extent that any Registration Expenses are incurred, assumed or
paid by the Investors or any underwriter, Xxxxx shall reimburse such Person for
the full amount of the Registration Expenses so incurred, assumed or paid
promptly after receipt of a written request
-19-
therefor, which shall specify in reasonable detail the nature and amount of the
Registration Expenses.
Xxxxx will, in any event, pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual or special audit, rating
agency fees, the fees and expenses incurred in connection with the listing of
the securities to be registered on each securities exchange on which similar
securities issued by Xxxxx are then listed and the fees and expenses of any
Person, including special experts, retained by Xxxxx.
(b) In connection with each (i) in the case of a U.S. Filing,
Registration Statement and (ii) in the case of a Canadian Filing, Canadian
Prospectus, required hereunder, (A) Xxxxx shall not be responsible for the
payment of any transfer taxes relating to the sale or disposition of the Subject
Securities by the Investors or for any underwriting discounts and commissions
attributable to the sale of Subject Securities by or on behalf of the Investors
and (B) Xxxxx (to the extent permitted by applicable law) will reimburse the
Investors and the holders of the Subject Securities being registered pursuant to
a Demand Filing or Piggy-Back Registration, as applicable, for the reasonable
fees and disbursements of not more than one counsel chosen by the holders of a
majority of the Subject Securities for whose benefit such Registration Statement
or Prospectus is being filed.
6. Indemnification.
---------------
(a) Indemnification by Xxxxx. In the event of any registration of
securities of Xxxxx under the Securities Act or obtaining a receipt for any
Canadian Prospectus, Xxxxx shall indemnify and hold harmless (i) in the case of
any registration or prospectus qualification of Subject Securities hereunder,
each Investor, its Affiliates and each underwriter, selling agent or other
securities professional, if any, which facilitates the disposition of Subject
Securities, and each of the respective officers, directors, partners,
shareholders, employees, agents or other representatives of such Investor and
its Affiliates, and (ii) in the case of any registration statement or Canadian
Prospectus of Xxxxx, each Investor, its directors and officers and each Person
who controls or is controlled by each Investor within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act (each such person being
sometimes referred to as an "Indemnified Person") from and against any and all
losses, claims, damages or, liabilities and expenses whatsoever ("Losses"),
joint or several, to which such Indemnified Person may become subject under the
Securities Act, Canadian Securities Laws or otherwise, insofar as such losses,
claims, damages, liabilities and expenses whatsoever (or actions in respect
thereof) arise out of or are based upon (A) any untrue statement or alleged
untrue statement of a material fact contained in any (x) in the case of a U.S.
Filing, Registration Statement under which such Subject Securities are to be
registered under the Securities Act, or any U.S. Prospectus contained therein or
any amendment or supplement thereto, and (y) in the case of a Canadian Filing, a
Canadian Prospectus under which a receipt or receipts may be obtained under
applicable Canadian Securities Laws, or any amendment or supplement thereto, or
(B) the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make
-20-
the statements therein (in the case of any Prospectus in the light of the
circumstances under which they were made) not misleading, and Xxxxx hereby
agrees to reimburse such Indemnified Person for any legal fees or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred; provided; however, that
Xxxxx shall not be liable to any such Indemnified Person in any such case to the
extent; but only to the extent that (I) any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration Statement
and/or Canadian Prospectus, or amendment or supplement, in reliance upon and in
conformity with written information furnished to Xxxxx by such Indemnified
Person expressly for use therein (II) the foregoing indemnity with respect to
any untrue statement contained in or omitted from a Registration Statement
and/or a Canadian Prospectus shall not inure to the benefit of any party (or any
person controlling such party) who is obligated to deliver a prospectus in
transactions in a security as to which a Registration Statement has been filed
pursuant to the Securities Act and from whom the person asserting any such
Losses purchased any of the Subject Securities to the extent that such Losses
resulted from such party having sold Subject Securities to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Registration Prospectus or a Canadian Prospectus, as amended
or supplemented, and (1) the Company shall have previously and timely furnished
sufficient copies of the Registration Statement or a Canadian Prospectus, as so
amended or supplemented, to such party in accordance with this Agreement and (2)
the Registration Statement or a Canadian Prospectus, as so amended or
supplemented, would have corrected such untrue statement or omission of a
material fact.
(b) Indemnification by the Investors and any Underwriters. Each
Investor and each other holder of Subject Securities agrees, as a consequence of
the inclusion of any of such Investor's or such other holder's Subject
Securities in such (i) in the case of a U.S. Filing, Registration Statement or
(ii) in the case of a Canadian Filing, Canadian Prospectus, and each
underwriter, selling agent or other securities professional, if any, which
facilitates the disposition of Subject Securities shall agree, as a consequence
of facilitating such disposition of Subject Securities, severally and not
jointly, to (A) indemnify and hold harmless Xxxxx, its directors, officers who
sign the registration statement and each person, if any, who controls or is
controlled by Xxxxx within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and expenses whatsoever to which Xxxxx or such other
persons may become subject, under the Securities Act, Canadian Securities Laws
or otherwise, insofar as such losses, claims, damages, liabilities and expenses
whatsoever (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
such (x) in the case of a U.S. Filing, Registration Statement or U.S.
Prospectus, or any amendment or supplement, and (y) in the case of a Canadian
Filing, Canadian Prospectus, or any amendment or supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein (in
the case of any Prospectus in the light of the circumstances under which they
were made) not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
-21-
furnished to Xxxxx by such Investor or such underwriter, selling agent or other
securities professional expressly for use therein, and (B) reimburse Xxxxx for
any legal or other expenses reasonably incurred by Xxxxx in connection with
investigating or defending any such action or claim as such expenses are
incurred, subject to the other limitations of this Section 6, including, without
limitation, the limitations under Section 6(e) hereof.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party under this Section 6, notify such
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under this Section 6 unless
the indemnifying party is materially prejudiced thereby. In case any such action
shall be brought against any indemnified party and it shall notify an
indemnifying party of the commencement thereof, such indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party (which consent shall
not be unreasonably withheld or delayed), be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, such indemnifying party shall not be
liable to such indemnified party under this Section 6 for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to,
or an admission of, fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(d) Contribution. If the indemnification provided for in this Section 6
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party 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
such indemnifying party or by such indemnified party, and the parties'
-22-
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The parties hereto agree that it would not
be just and equitable if contribution pursuant to this Section 6(d) were
determined by pro rata allocation (even if the Investors or any underwriters,
selling agents or other securities professionals or all of them were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 6(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. 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. The obligations of the Investors, any other holder of Subject
Securities and any underwriters, selling agents or other securities
professionals in this Section 6(d) to contribute shall be several (in proportion
to the percentage of Subject Securities registered or underwritten, as the case
may be, by them) and not joint.
(e) Notwithstanding any other provision of this Section 6, in no event
will either (i) any Investor or any other holder of Subject Securities selling
such securities pursuant to a Registration Statement or Canadian Prospectus
hereunder be liable to any Person under this Section 6 or otherwise with respect
to any registration or prospectus qualification hereunder for any amounts in
excess of the dollar amount of the net proceeds to be received by such Investor
from the sale of its Subject Securities (after deducting any discounts and
commissions applicable thereto, but before deducting any expenses) pursuant to
any (A) in the case of a U.S. Filing, Registration Statement and (B) in the case
of a Canadian Filing, Canadian Prospectus, under which such Subject Securities
are to be registered under the Securities Act or Canadian Securities Laws, as
the case may be, or (ii) any underwriter, selling agent or other securities
professional be liable to any Person hereunder for any amounts in excess of the
discount, commission or other compensation payable to such underwriter, selling
agent or other securities professional with respect to the Subject Securities
underwritten by it and distributed to the public.
(f) The obligations of Xxxxx under this Section 6 shall be in addition
to any liability which Xxxxx may otherwise have to any Indemnified Person and
the obligations of any Indemnified Person under this Section 6 shall be in
addition to any liability which such Indemnified Person may otherwise have to
Xxxxx. The remedies provided in this Section 6 are not exclusive and shall not
limit any rights or remedies that may otherwise be available to an indemnified
party at law or in equity.
7. Rule 144.
--------
Xxxxx covenants that it will timely file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder (or, if Xxxxx is not required to file
such reports, it will, upon the request of the GSC Investors or CLGI make
publicly available such information as necessary to permit sales
-23-
pursuant to Rule 144 under the Securities Act), and it will take such further
action as the GSC Investors or CLGI may reasonably request, all to the extent
required from time to time to enable the GSC Investors and CLGI to sell Subject
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the SEC, including providing any legal opinions. Upon the
request of the GSC Investors or CLGI, Xxxxx will deliver to the GSC Investors or
CLGI, as the case may be, a written statement as to whether it has complied with
such information and requirements.
8. Approval for Listing.
---------------------
Promptly after the date hereof and after any subsequent increase in the
number of Subject Securities, Xxxxx shall take all necessary action to cause all
of the Subject Securities to be approved for listing, subject to official notice
of issuance, on, at the election of the GSC Investors or such holder of Subject
Securities, either the New York Stock Exchange or The Toronto Stock Exchange, as
the case may be, or other securities exchange or dealer quotation system on
which the Common Shares may then be listed or authorized for quotation.
9. Term of Registration Rights.
----------------------------
The rights of the GSC Investors and any other holder of Subject
Securities with respect to the registration rights granted pursuant to this
Agreement shall remain in effect, subject to the terms hereof, so long as there
are Subject Securities or securities which are convertible or exchangeable for
Subject Securities issued and outstanding.
10. Further Agreements.
-------------------
(a) Xxxxx will not file any registration statement under the Securities
Act or file a Canadian Prospectus under Canadian Securities Laws unless it shall
first have given to the GSC Investors and any other holder of Subject Securities
for so long as the GSC Investors or such other holder owns beneficially (as such
term is defined in the Exchange Act or Canadian Securities Laws, as the case may
be) 6.6% or more of the Common Shares of Xxxxx at the time outstanding or is
otherwise deemed to be a control person under the Securities Act or Canadian
Securities Law, at least 10 days' prior written notice thereof and, if so
requested by the GSC Investors or such other holder within 10 days after such
notice, the GSC Investors and such other holder shall have the right, at any
time when, in the reasonable judgment of the GSC Investors or such other holder,
the GSC Investors or such holder is or might be deemed a controlling person of
Xxxxx within the meaning of the Securities Act or Canadian Securities Laws, (i)
to participate in the preparation and filing of each such registration statement
or prospectus to the extent provided in Section 4 hereof; (ii) to receive the
documents and notices specified in Section 4 hereof and to make the requests
specified in Section 4 hereof; (iii) to receive signed copies of the documents
specified in Section 4 hereof addressed to the GSC Investors and such other
holder; and (iv) to require Xxxxx to pay the fees and disbursements of counsel
to the GSC Investors and such other holder which assists in such participation.
If any such registration statement or prospectus refers to the GSC Investors or
such other holder by name or otherwise as the holder
-24-
of any securities of Xxxxx, then the GSC Investors and such other holder shall
have the right (in addition to any other rights it may have under this
Agreement) to require, in the event that such reference to the GSC Investors or
such other holder, by name or otherwise is not required by the Securities Act or
Canadian Securities Laws or any rules and regulations promulgated thereunder,
the deletion of the references to the GSC Investors and such other holder.
11. Miscellaneous.
--------------
(a) Remedies. The GSC Investors and any other holder of Subject
Securities, in addition to being entitled to exercise all rights provided herein
and granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. Xxxxx agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
(b) Registration Rights of Other Persons. As of the date hereof, Xxxxx
has not granted to any Person the right to request a registration of securities
of Xxxxx under the Securities Act and/or Canadian Securities Laws or the right
to be included as a selling stockholder in connection with any registration of
Subject Securities, other than the Existing Registration Rights Agreement. Xxxxx
may grant to any Person other than the GSC Investors the right to request a
registration of securities of Xxxxx under the Securities Act and/or Canadian
Securities Laws or the right to be included as a selling stockholder in
connection with any registration of Subject Securities; provided, however, that
the granting of any such rights shall not conflict with or otherwise alter any
rights granted to the GSC Investors hereunder; and provided, further, that this
Agreement shall be amended to provide the GSC Investors and each of the holders
of Subject Securities with the benefit of any term in such agreement that is
more favorable than a term herein. The rights granted to the GSC Investors
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of Xxxxx'x securities under any other agreements.
(c) Adjustments Affecting Subject Securities. Xxxxx will not take any
action, or permit any change to occur, with respect to the Subject Securities
which would (i) adversely affect the ability of the GSC Investors or any other
holder of Subject Securities to include such Subject Securities in a
registration undertaken pursuant to this Agreement or (ii) adversely affect the
marketability of such Subject Securities in any such registration.
(d) Amendments and Waivers. This Agreement, including this Section
11(d), may be amended, and waivers or consents to departures from the provisions
hereof may be given, only by a written instrument duly executed by Xxxxx and the
GSC Investors and each other holder of Subject Securities. Each holder of
Subject Securities outstanding at the time of any such amendment, waiver or
consent or thereafter shall be bound by any amendment, waiver or consent
effected pursuant to this Section 11(d), whether or not any notice, writing or
marking indicating such amendment, waiver or consent appears on the Subject
Securities or is delivered to such holder.
-25-
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or air courier guaranteeing overnight
delivery:
Notices to the Corporation shall be addressed as follows:
Xxxxx Corporation Limited
c/x Xxxxx Executive Xxxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn.: Chief Financial Officer
Fax: (000) 000-0000
Notices to the GSC Investors shall be addressed as set forth
on Schedule A.
with a copy to:
Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxxxx X. Xxxx
Fax: (000) 000-0000
Notices to CLGI shall be addressed as follows:
Chancery Lane/GSC Investors, L.P.
c/o MIC Investors, Inc.
c/o Xxxx Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
with a copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
-26-
(f) Parties in Interest; Benefits of Registration Rights. The parties
to this Agreement intend that the GSC Investors, CLGI and their successors and
permitted assigns holding Subject Securities, including, without limitation, any
current or former partner of CLGI (or, in the case of any current or former
partner of CLGI that is itself a partnership, any partner of that partnership
holding Subject Securities), shall be entitled to receive the benefits of this
Agreement and that each such Person shall be bound by the terms and provisions
of this Agreement by reason of its election with respect to the Subject
Securities which are included in a Registration Statement or Canadian Prospectus
filed pursuant to the terms of this Agreement. All the terms and provisions of
this Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the respective successors and assigns of the parties hereto. In
the event that any transferee or distributee of any Investor shall acquire
Subject Securities, in any manner permitted by the Debenture Purchase Agreement
or the Conversion Inducement Agreement, whether by gift, bequest, purchase,
operation of law or otherwise, the Investor and such transferee or distributee
may, without any further writing or action of any kind, in the case of any
transferee or distributee of the GSC Investors, jointly as to any Demand Filing
Statement or any Underwritten Takedown Request, and in the case of any
transferee or distributee of any Investor, including the GSC Investors,
severally as to any Piggyback Filing, exercise the piggyback registration rights
hereunder in such manner and in such proportion as to any Demand Filing
Statement as set forth in Section 3(a) and, if any such transferee or
distributee of the GSC Investors or any other Investor exercises such
registration rights, such transferee or distributee shall be conclusively deemed
to have agreed to be bound by and to perform all of the terms and provisions of
this Agreement to the aforesaid extent.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
provisions relating to conflicts of laws.
(j) Currency. Unless otherwise specified, all references to currency
herein are to lawful money of the United States of America.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by law.
-27-
(l) Survival. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of the GSC
Investors or any other holder of Subject Securities, any director or officer of
the GSC Investors or any other holder of Subject Securities, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Subject Securities by the GSC Investors or any other
holder of Subject Securities.
(m) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein, other than the Existing Registration Rights
Agreement. There are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein with respect to the
registration rights granted by Xxxxx with respect to the Subject Securities.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter, other than the Existing
Registration Rights Agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-28-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXX: XXXXX CORPORATION LIMITED
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
GSC INVESTORS: GREENWICH STREET CAPITAL PARTNERS II, L.P.
GSCP OFFSHORE FUND, L.P.
GREENWICH FUND, L.P.
GREENWICH STREET EMPLOYEES FUND, L.P.
TRV EXECUTIVE FUND, L.P.
By: Greenwich Street Investments II,
L.L.C., its General Partner
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
CLGI: CHANCERY LANE/GSC INVESTORS, L.P.
By: MIC Investors, Inc., its General Partner
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
SCHEDULE A
GSC INVESTORS
Name Address
---- -------
Greenwich Street Capital Partners II, L.P. x/x Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx XX, X.X.X.
c/o GSC Partners
00 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn.: Xxxxxxx Xxxxxxx,
Managing Director
Fax: 000-000-0000
GSCP Offshore Fund, L.P. same as above
Greenwich Fund, L.P. same as above
Greenwich Street Employees Fund, L.P. same as above
TRV Executive Fund, L.P. same as above
