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Exhibit 4.2
FORM OF REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") dated as of August
___, 2000, is by and among VP Merger Parent, Inc. (the "COMPANY"), a Delaware
corporation; Xxxxx X. Xxxxx, Xxxx X. Xxxxx, Xxxxx X. Xxxxx, and Xxxx X. Xxxxx,
each of whom is an individual; and Xxxx X. Xxxxxxxx, not individually but as
Trustee (i) U/T/A dated 12/16/91 F/B/O Xxxx Xxxxx et al., (ii) of the Xxxx X.
Xxxxx Life Insurance Trust, and (iii) of the Xxxxx X. Xxxxx Life Insurance
Trust, respectively (excluding the Company, all of the foregoing parties,
collectively, the "CRYSTAL STOCKHOLDERS").
The parties and certain others are parties to an Agreement and Plan of
Merger and Contribution (together with any and all amendments thereto, the
"MERGER AGREEMENT") dated as of May 5, 2000, pursuant to which, among other
things, the Company will issue and sell certain shares of its Common Stock to
the Crystal Stockholders. Notwithstanding any other provision of this Agreement,
this Agreement will not be effective until the "Effective Time" (as defined in
the Merger Agreement), and if such Effective Time does not occur on or before
the date set forth in Section 10.1(e) of the Merger Agreement, this Agreement
will be of no force or effect.
1. DEFINITIONS. As used in this Agreement:
"HOLDERS" means the holders of Registrable Securities, and "HOLDER" means
any one of the Holders.
"REGISTERED" and "REGISTRATION" (regardless of whether capitalized) refer
to a registration of securities effected by preparing and filing a registration
statement in compliance with the Securities Act and the declaration or ordering
by the SEC of effectiveness of such registration statement.
"REGISTRABLE SECURITIES" means all shares of the Company's Common Stock
issued to the Crystal Stockholders pursuant to the Merger Agreement, and any
additional shares issued in respect of such original shares by way of stock
split, stock dividend, or similar occurrence.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC thereunder.
2. FILING AND EFFECTIVENESS OF REGISTRATION STATEMENT. Not later than the
first anniversary of the "Effective Time" referred to above, the Company will
file with the SEC a registration statement (the "REGISTRATION STATEMENT") on
Form S-3 or other appropriate form for the purpose of registering the
Registrable Securities for resale by the Holders, and thereafter the Company
will use its best commercially reasonable efforts to cause the Registration
Statement to become effective as promptly as practicable and to remain effective
for at least six months.
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3 OTHER OBLIGATIONS. From time to time after the effective date of the
Registration Statement, the Company will:
(i) Subject to Section 4 hereof, promptly prepare and file with the
SEC such amendments to the Registration Statement and amendments or
supplements to the prospectus included therein as may be necessary to
comply with the provisions of the Securities Act with respect to the sale
or other disposition of the Registrable Securities.
(ii) Promptly furnish to each Holder such number of copies of any
prospectus (including any amended or supplemented prospectus) in conformity
with the requirements of the Securities Act as such Holder reasonably may
request in order to effect the offering and sale of the Registrable
Securities.
(iii) Use its commercially reasonable efforts promptly to register or
qualify the Registrable Securities under the securities or blue sky laws of
such United States jurisdictions as any Holder reasonably may request
(provided, that the Company will not be required in connection therewith or
as a condition thereto to subject itself to taxation, qualify to do
business, or file a general consent to service of process in any such
jurisdiction).
(iv) Use its commercially reasonable efforts to list the Registrable
Securities on each securities exchange and quotation system on which
similar securities of the Company are then traded or listed.
(v) Notify each Holder, promptly after the Company receives notice
thereof, of the date and time the Registration Statement and each
post-effective amendment to the Registration Statement becomes effective or
a supplement to any prospectus forming a part of the Registration Statement
has been filed.
(vi) Promptly authorize and instruct its transfer agent to reissue
unlegended certificates at the request of any Holder upon such Holder's
delivery of original certificates representing Registrable Securities sold
pursuant to the Registration Statement, and promptly respond to any
brokers' inquiries made of the Company in connection with such sales, in
each case with a view to assisting Holders to complete sales of the
Registrable Securities.
4. RIGHTS OF COMPANY TO SUSPEND SALES. Notwithstanding the foregoing or any
other provision of this Agreement, the Company may suspend the rights of Holders
to sell Registrable Securities pursuant to the Registration Statement if the
Company has delivered a written notice to the Holders stating that the
suspension of such sales is necessary because the Board of Directors of the
Company, in its reasonable judgment, has determined in good faith that such
sales would require public disclosure by the Company of material nonpublic
information that is not included in the Registration Statement and that
immediate disclosure of such information would be materially adverse to the
Company. In this event, and if the Holders so request, the Company will use its
commercially reasonable efforts to take all actions necessary
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to permit the Holders to sell shares pursuant to the Registration Statement as
promptly as practicable, including amending the Registration Statement and/or
amending or supplementing the prospectus included therein, and will give the
Holders prompt written notice when they may again sell shares pursuant to the
Registration Statement.
5. EXPENSES. The Company will pay all of the expenses incurred in
connection with the registration of shares pursuant to this Section 6, including
without limitation all SEC, Nasdaq, stock exchange, and blue sky registration,
filing, and listing fees; printing expenses; transfer agents' and registrars'
fees; fees of the Company's counsel and accountants; and up to $15,000 of the
reasonable fees and expenses of one counsel for the Holders.
6. TRANSFERS OF REGISTRATION RIGHTS. The rights of any Holder under this
Agreement may be transferred by such Holder to the extent that prior to the
effectiveness of the Registration Statement any of the Registrable Securities
are transferred to any third party without violation of applicable securities
law registration requirements or of any written agreement of such Holder and the
Company. Before any such permitted transfer of registration rights, the
transferring Holder will give the Company written notice of the proposed
transfer and the name and address of the proposed transferee, and the proposed
transferee will deliver to the Company a written agreement assuming the
obligations of the transferor with respect to the transferred securities under
this Agreement.
7. INDEMNIFICATION.
(a) BY THE COMPANY. The Company will indemnify, defend, and hold harmless
each Holder from and against any and all damages, losses, claims, demands,
actions, causes of action, suits, litigations, arbitrations, liabilities, costs,
and expenses, including court costs and the reasonable fees and expenses of
legal counsel (collectively, "DAMAGES") related to or arising, directly or
indirectly, out of or in connection with any untrue statement (or alleged untrue
statement) of any material fact contained in the Registration Statement, any
preliminary or final prospectus included therein, any amendment or supplement
thereto, or any document incorporated by reference therein, or any omission (or
alleged omission) to state therein any material fact required to be stated
therein or necessary to make the statements therein not misleading, or any
violation by the Company, in connection with the Registration Statement, of the
Securities Act or any rule or regulation promulgated thereunder; provided,
however, that the Company will not be liable to the extent that such Damages
arise out of or are based on any untrue statement or omission made in reliance
upon and in conformity with written information furnished by such Holder
specifically for use in the Registration Statement.
(b) BY EACH HOLDER. Subject to the limitations set forth in Section 7(e),
each Holder, severally, will indemnify, defend, and hold harmless the Company
from and against any and all Damages related to or arising, directly or
indirectly, out of or in connection with any untrue statement (or alleged untrue
statement) of any material fact contained in the Registration Statement, any
preliminary or final prospectus included therein, any amendment or supplement
thereto, or any document incorporated by reference therein, or any omission (or
alleged
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omission) to state therein any material fact required to be stated therein or
necessary to make the statement therein not misleading, but only if and to the
extent that such statement or omission was made in reliance upon and in
conformity with written information furnished by such Holder specifically for
use in the Registration Statement; provided, that each Holder's liability will
be limited to an amount equal to the net proceeds of sale of the securities sold
by such Holder pursuant to the Registration Statement, less any amount paid by
such Holder as contribution pursuant to Section 7(d).
(c) CLAIMS. In the event that any party (the "INDEMNIFIED PARTY") desires
to make a claim against any other party (the "INDEMNIFYING PARTY," which term
includes all such other parties, if more than one) in connection with any
third-party litigation, arbitration, action, suit, proceeding, claim, or demand
at any time instituted against or made upon the Indemnified Party for which it
may seek indemnification hereunder (a "THIRD-PARTY CLAIM"), the Indemnified
Party will promptly notify the Indemnifying Party of such Third-Party Claim;
provided, that failure to give such notice will not relieve the Indemnifying
Party of its indemnification obligations under this section except to the extent
that the Indemnifying Party is actually prejudiced thereby.
Upon receipt of such notice from the Indemnified Party, the Indemnifying
Party by written notice to the Indemnified Party given within 20 days following
the Indemnifying Party's receipt of the Indemnified Party's notice, will be
entitled to assume the defense of the Third-Party Claim, with authority to
negotiate, compromise, and settle the Third-Party Claim. The Indemnifying Party
will not agree to any settlement of any Third-Party Claim that does not include
an unconditional release of all liability of each Indemnified Party with respect
to the Third-Party Claim. An Indemnified Party shall not agree to settle any
Third-Party Claim without the prior written consent of the Indemnifying Party.
The Indemnified Party will retain the right to employ its own counsel and
to participate in the defense of any Third-Party Claim, the defense of which has
been assumed by the Indemnifying Party, but the Indemnified Party will be
responsible for his or its own expenses in connection with such participation,
except that if the Indemnified Party reasonably determines that a conflict of
interest make separate representation of the Indemnified Party by separate
counsel advisable, then the Indemnifying Party will be responsible for the
reasonable cost of one such separate counsel.
(d) CONTRIBUTION IN LIEU OF INDEMNIFICATION. Subject to the limitations set
forth in Section 7(e), if the indemnification provided for in this Section 7 is
unavailable to an Indemnified Party, or insufficient to hold harmless such
Indemnified Party in respect of any Damages referred to therein, then each
Indemnifying Party will, in lieu of indemnifying such Indemnified Party,
contribute to the amount paid or payable by such Indemnified Party as a result
of such Damages in such proportion as is appropriate to reflect their relative
fault in connection with the statements, omissions, or other matters that
resulted in such Damages. Relative fault will be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Indemnifying Party or the Indemnified Party and the
parties' relative
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intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The parties agree that it would not be just and equitable if contribution
pursuant to this Section 7(d) were determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to above in this Section 7(d).
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) LIMITATIONS ON INDEMNIFICATION AND CONTRIBUTION BY ANY HOLDER.
Notwithstanding the foregoing or any other provision of this Agreement, each
Holder's liability under this Agreement (i) will be several, and not joint, and
(ii) will be limited to a maximum amount equal to the net proceeds of sale of
the securities sold by such Holder pursuant to the Registration Statement.
8. MISCELLANEOUS.
(a) BENEFITS OF AGREEMENT; NO ASSIGNMENTS; NO THIRD-PARTY BENEFICIARIES.
This Agreement will bind and inure to the benefit of the parties hereto and
their respective heirs, successors, and permitted assigns. The Company will not
assign any rights or delegate any obligations hereunder without the consent of
the Holders, and except as expressly permitted by Section 6 hereof, no Holder
will assign any rights or delegate any obligations hereunder without the consent
of the Company; and any attempt to make an impermissible assignment or
delegation will be void. Nothing in this Agreement is intended to or will confer
any rights or remedies on any person other than the parties hereto and their
respective heirs, successors, and permitted assigns.
(b) COUNTERPARTS. This Agreement may be executed by the parties in separate
counterparts, each of which when so executed and delivered will be an original,
but all of which together will constitute one and the same agreement. In
pleading or proving this Agreement, it will not be necessary to produce or
account for more than one such counterpart.
(c) CONSTRUCTION. The language used in this Agreement is the language
chosen by the parties to express their mutual intent, and no rule of strict
construction will be applied against either party. The captions of sections or
subsections of this Agreement are for reference only and will not affect the
interpretation or construction of this Agreement.
(d) WAIVERS. No waiver of any breach or default hereunder will be valid
unless in a writing signed by the waiving party. No failure or other delay by
any party exercising any right, power, or privilege hereunder will be or operate
as a waiver thereof, nor will any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power,
or privilege.
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(e) NOTICES. All notices, requests, payments, instructions, or other
documents to be given pursuant to or in connection with this Agreement will be
in writing and will be deemed to have been duly given if given in accordance
with Section 11.4 of the Merger Agreement.
(f) ENTIRE AGREEMENT. This Agreement contains the entire understanding and
agreement among the parties, and supersedes any prior understandings or
agreements among them, or between any of them, with respect to the subject
matter of this Agreement.
(g) GOVERNING LAW. This Agreement will be governed by and interpreted and
construed in accordance with the internal laws of the State of Delaware (without
reference to principles of conflicts or choice of law).
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Executed and delivered as an agreement under seal as of the date first
above written.
VP MERGER PARENT, INC.
By
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Xxxxxxx X. Xxxxxx
Chief Executive Officer
and President
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Xxxxx X. Xxxxx
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Xxxx X. Xxxxx
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Xxxx X. Xxxxx
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Xxxxx X. Xxxxx
XXXX XXXXXXXX, AS TRUSTEE
U/T/A 12/16/91 F/B/O
XXXX XXXXX ET AL.
By
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Xxxx X. Xxxxxxxx, as Trustee
and not individually
XXXX X. XXXXX
LIFE INSURANCE TRUST
By
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Xxxx X. Xxxxxxxx, as Trustee
and not individually
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XXXXX X. XXXXX
LIFE INSURANCE TRUST
By
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Xxxx X. Xxxxxxxx, as Trustee
and not individually
