Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of August 14, 2001 by and among Cascade Investment LLC, a
Washington limited liability company (the "Investor"), and Gabelli Asset
Management Inc., a New York corporation (the "Company").
RECITALS
A. Investor has agreed to purchase from the Company, and the
Company has agreed to sell to the Investor, a $100 million convertible
promissory note (the "Note") pursuant to a Note Purchase Agreement, dated
as of August 10, 2001, by and among the Company, the Investor, Xxxxx X.
Xxxxxxx, Gabelli Group Capital Partners, Inc., Rye Holdings, Inc. and Rye
Capital Partners, Inc. (the "Purchase Agreement"). The Note is convertible
into shares of Class A Common Stock, par value $0.001 per share (such
shares and any other securities issued or distributed with respect to, or
in exchange for, such shares pursuant to any reclassification, merger or
other transaction, the "Class A Common Stock"), of the Company on the terms
and conditions set forth in the Note.
B. The Company agrees with the Investor for the benefit of the
Holders (as defined herein) from time to time of the Registrable Securities
(as defined herein) as follows:
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
1. INFORMATION
1.1 Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission (as defined
below), which may at any time permit the sale of the Registrable Securities
(as defined below) to the public without Registration, the Company agrees
to use all reasonable efforts to:
(a) Make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act (as
defined below), at all times after the date of this Agreement;
(b) File with the Commission in a timely manner all
reports and other documents required of the Company under the Securities
Act and the 1934 Act (as defined below) (at any time after it has become
subject to such reporting requirements); and
(c) So long as any Person owns all or any portion of the
Note or any Registrable Securities, furnish to such Holder forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of said Rule 144, and of the Securities Act and the
1934 Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents of the Company as Investor
may reasonably request in availing itself of any rule or regulation of the
Commission allowing Investor to sell any such securities without
Registration.
2. REGISTRATION RIGHTS.
2.1 Definitions. (a) As used in this Agreement and except as
otherwise defined herein, the following defined terms shall have the
following meanings:
Applicable Securities. The term "Applicable Securities"
means in relation to a Registration Statement the Registrable Securities
identified in the related Demand Notice or Piggy-back Notice.
Demand Registration Statement. The term "Demand
Registration Statement" means a registration statement filed under the
Securities Act by the Company pursuant to the provisions of Section 2.2
hereof, including the Prospectus contained therein, any amendments and
supplements to such registration statement, including post-effective
amendments, and all exhibits and all material incorporated by reference in
such registration statement.
Effective Time. The term "Effective Time" means the date
on which the Commission declares a Registration Statement effective or on
which a Registration Statement otherwise becomes effective.
Form S-3. The term "Form S-3" means such form under the
Securities Act as is in effect on the date hereof or any successor
registration form under the Securities Act subsequently adopted by the SEC
which permits inclusion or incorporation of substantial information by
reference to other documents filed by the Company with the SEC.
Holder. The term "Holder" means any holder from time to
time of Registrable Securities or securities convertible into, or
exercisable or exchangeable for, Registrable Securities.
Notice and Questionnaire. The term "Notice and
Questionnaire" means a Notice of Registration Statement and Questionnaire
substantially in the form of Exhibit A hereto.
Person. The term "Person" means an individual,
partnership, corporation, trust, limited liability company or
unincorporated organization, or other entity or organization, including a
government or agency or political subdivision thereof.
Prospectus. The term "Prospectus" means the prospectus
(including 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 with respect to the
terms of the offering of any portion of the Registrable Securities covered
by a 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 the
Company under the 1934 Act and incorporated by reference therein.
Registrable Securities. The term "Registrable Securities"
means: (a) the Class A Common Stock or other securities issuable upon
conversion of the Note, (b) any securities (including Class A Common Stock)
issued or distributed with respect to, or in exchange for, the Note or such
Class A Common Stock pursuant to any reclassification, merger,
consolidation, reorganization or other transaction ("Other Securities") or
upon conversion, exercise or exchange of Other Securities and (c) any
securities issued or distributed with respect to, or in exchange for, Other
Securities (whether directly or indirectly through a series of
transactions) pursuant to any reclassification, merger, consolidation,
reorganization or other transaction or upon conversion, exercise or
exchange of Other Securities, in each case other than Unrestricted
Securities.
Registrable Securities Then Outstanding. The number of
shares of "Registrable Securities then Outstanding" shall mean the number
of shares of Class A Common Stock which are Registrable Securities and are
then (1) issued and outstanding or (2) issuable pursuant to the exercise or
conversion of the Note.
Registration. The terms "Register," "Registered," and
"Registration" refer to a registration effected by preparing and filing a
Registration Statement in compliance with the Securities Act, and the
declaration or ordering of effectiveness of such Registration Statement.
Registration Statement. The term "Registration Statement"
means a registration statement filed under the Securities Act by the
Company pursuant to the provisions of Section 2 hereof, including the
Prospectus contained therein, any amendments and supplements to such
registration statement, including post-effective amendments, and all
exhibits and all material incorporated by reference in such registration
statement.
Registration Expenses. The term "Registration Expenses"
means all expenses incident to the Company's performance of or compliance
with any Registration of Registrable Securities pursuant to this Agreement,
including, without limitation, all registration, filing and National
Association of Securities Dealers, Inc. fees, fees of any stock exchange
upon which the Registrable Securities are listed, all fees and expenses of
complying with securities or blue sky laws, all printing expenses,
messenger and delivery expenses, the fees and disbursements of counsel for
the Company and of its independent public accountants, including the
expenses of any special audits or "comfort" letters required by or incident
to such performance and compliance, premiums and other costs of policies of
insurance obtained by the Company against liabilities arising out of the
public offering of Registrable Securities being registered and any fees and
disbursements of underwriters customarily paid by issuers, and fees and
disbursements of one counsel retained by the Selling Shareholders, which
shall not exceed in the aggregate $20,000, but excluding all transfer
taxes, underwriting discounts and commissions, if any, relating to
Registrable Securities.
SEC. The term "SEC" or "Commission" means the U.S.
Securities and Exchange Commission.
Securities Act. The term "Securities Act" means the
Securities Act of 1933, as amended.
Unrestricted Security. The term "Unrestricted Security"
means any Registrable Security that (i) has been effectively registered
under the Securities Act, (ii) has been transferred in compliance with Rule
144 under the Securities Act (or any successor provision thereto) under
circumstances in which such Registrable Securities become freely
transferable under the Securities Act and any legend relating to
restrictions on transfer under the Securities Act is removed, (iii) is
transferable pursuant to paragraph (k) of Rule 144 under the Securities Act
(or any successor provision thereto) or (iv) has otherwise been transferred
and a new security not subject to transfer restrictions under the
Securities Act has been delivered upon such transfer by or on behalf of the
Company.
1934 Act. The term "1934 Act" means the Securities
Exchange Act of 1934, as amended.
(b) The words "include," "includes" and "including," when
used in this Agreement, shall be deemed to be followed by the words
"without limitation."
(c) The words "hereof", "herein", and "hereunder" and
words of similar import, when used in this Agreement, shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
(d) The terms defined in the singular shall have a
comparable meaning when used in the plural, and vice versa.
2.2 Demand Registration.
(a) Request by Holders. If the Company shall receive at
any time (but not within 12 months of the effective date of another Demand
Registration Statement effected by the Company on behalf of any Holder
pursuant to this Section 2.2), a written request ("Demand Notice") from any
Holder who holds Registrable Securities in excess of 1% of the then
outstanding number of shares of Class A Common Stock (each such Person
eligible to make a request, an "Eligible Holder" and each such Person who
makes a request, a "Requestor") that the Company file a Registration
Statement under the Securities Act covering the Registration of Registrable
Securities pursuant to this Section 2.2, then the Company shall, within
fifteen (15) business days of the receipt of the Demand Notice, give
written acknowledgment of such request ("Request Acknowledgment") to each
Eligible Holder (if any). If an Eligible Holder desires to include in any
such Registration Statement all or any part of the Registrable Securities
then held by such Eligible Holder, the Eligible Holder shall, within ten
(10) days after receipt of the Request Acknowledgement from the Company, so
notify the Company in writing, and in such notice shall inform the Company
of the number of Registrable Securities the Eligible Holder wishes to
include in such Registration Statement. Eligible Holders who elect to
participate in an offering pursuant to this Section 2.2 or pursuant to
Section 2.3 (including but not limited to a Requestor) are referred to
collectively as "Selling Shareholders". The Company shall effect, as soon
as reasonably practicable, the Registration under the Securities Act of all
Applicable Securities which the Selling Shareholders request to be
registered and included in such Registration, subject only to the
limitations of this Section 2.2; provided that the Applicable Securities
requested by the Requestor(s) to be registered pursuant to such request
must either: (i) be at least ten percent (10%) of all Registrable
Securities then outstanding (but having an anticipated aggregate public
offering price of at least $5,000,000) or (ii) have an anticipated
aggregate public offering price (before any underwriting discounts and
commissions) of not less than $10,000,000.
(b) Underwriting. If a Requestor initiates the
Registration request under this Section 2.2 and intends to distribute the
Applicable Securities covered by its request by means of an underwritten
offering, then the Requestor shall so advise the Company as a part of its
request made pursuant to this Section 2.2. In such event, the right of the
Selling Shareholders to include their Applicable Securities in such
Registration shall be conditioned upon each Selling Shareholder's
participation in such underwriting and the inclusion of their Applicable
Securities in the underwriting to the extent provided herein. If the
Requestor proposes to distribute its securities through such underwriting,
each Selling Shareholder shall enter into an underwriting agreement in
customary form with the managing underwriter or underwriters selected for
such underwriting by the Requestor, with the consent of the Company, which
consent shall not be unreasonably withheld. Notwithstanding any other
provision of this Section 2.2, if the underwriter(s) advise(s) the Company
and the Selling Shareholders in writing that in its or their opinion the
number of securities requested to be registered exceeds the number which
can be sold in such offering without materially adversely affecting the
pricing, timing or likely success of the offering (with respect to any
offering, the "Maximum Number"), then the Company shall so advise the
Selling Shareholders and include such Maximum Number in the Registration.
The number of shares that may be included in the Registration and the
underwriting shall be allocated, first, to the Requestor, and second, to
the other Selling Shareholders based on the relative proportion of shares
of all such Selling Shareholders requested to be so registered, and third,
to the Company and to other securityholders of the Company who have
requested that their securities be included in such Registration Statement
and who hold contractual registration rights with respect to such
securities. If a Selling Shareholder disapproves of the terms of any such
underwriting, the Selling Shareholder may elect to withdraw therefrom by
written notice to the Company and the underwriter, delivered at least ten
(10) business days prior to the effective date of the Registration
Statement. Any Registrable Securities excluded and withdrawn from such
underwriting shall be withdrawn from the Registration. For purposes of this
agreement, an "underwritten offering" shall be an offering pursuant to
which securities are sold to a broker-dealer or other financial institution
or group thereof for resale by them to investors.
(c) Maximum Number of Demand Registrations. The Company
is obligated to effect only five (5) such Registrations pursuant to this
Section 2.2.
(d) Deferral. Notwithstanding the foregoing, if the
Company, in the good faith judgment of the Board of Directors of the
Company, determines that the filing or the effectiveness of a Registration
Statement at that time would interfere with pending financing, acquisition,
corporate reorganization or other corporate transaction involving the
Company or any of its subsidiaries and would be seriously detrimental to
the Company and its shareholders and it is therefore essential to defer the
filing of the Registration Statement pursuant to this Section 2.2, then the
Company shall have the right to defer such filing for a period of not more
than 90 days after receipt of the request of the Requestor or in the case
of delaying effectiveness, 180 days after receipt of the request of the
Requestor; provided, however, that the Company may not utilize this right
more than once in any twelve (12) month period. The Company shall advise
the Requestor of any such determination as promptly as reasonably
practicable.
(e) Right to Withdraw. The Requestor requesting any
Registration pursuant to this Section 2.2 shall have the right to withdraw
such request (i) prior to the time the Registration Statement in respect of
such Registration has been declared effective, (ii) upon the issuance by a
governmental agency or the Commission of a stop order, injunction or other
order which interferes with such Registration, (iii) if the conditions to
closing specified in the purchase agreement or underwriting agreement
entered into in connection with such Registration are not satisfied other
than as a result of default by the Selling Shareholders, (iv) such
withdrawal is requested by the Requestor because of the occurrence of a
significant negative change in market conditions or the Company's business,
financial condition, results of operations or prospects since the date of
the Demand Notice or (v) if the Company avails itself of Section 2.2(d)
hereof; it being understood that such Registration shall be deemed not to
have been requested for purposes of Section 2.2 if the Requestor withdraws
its request pursuant this Section 2.2(e), provided, that if the Requestor
withdraws its request pursuant to clause (i) above, such Requestor agrees
to reimburse the Company for the reasonable out-of-pocket expenses the
Company has incurred prior to such withdrawal in effecting such
Registration. If the Requestor withdraws a request pursuant to this Section
2.2(e) but the Company nevertheless determines to complete, within 30 days
after such withdrawal, the Registration so requested as to securities other
than the Applicable Securities, the Eligible Holders shall be entitled to
participate in such Registration pursuant to Section 2.3 hereof, but in
such case the Intended Offering Notice (as defined below) shall be required
to be given to the Eligible Holders at least 10 business days prior to the
anticipated filing date of the Registration Statement and the Eligible
Holders shall be required to give the Piggy-back Notice no later than 5
business days after the Company's delivery of such Intended Offering
Notice.
2.3 Piggyback Registrations.
(a) The Company shall notify each Eligible Holder in
writing (the "Intended Offering Notice") at least ten (10) business days
prior to filing any registration statement under the Securities Act for
purposes of effecting a public offering of any securities of the Company
(other than a registration statement on Form S-8 or Form S-4, or any
successor forms thereof). Such Intended Offering Notice shall offer to
include in such registration statement for offer to the public such number
or amount of Registrable Securities as each such Eligible Holder may
request, subject to the conditions set forth herein, and shall specify, to
the extent then known, the number and class of securities proposed to be
registered, the proposed date of filing of such registration statement, any
proposed means of distribution of such securities, any proposed managing
underwriter or underwriters of such securities and a good faith estimate by
the Company of the proposed maximum offering price of such securities, as
such price is proposed to appear on the facing page of such registration
statement. If an Eligible Holder of Registrable Securities desires to
include in any such registration statement all or any part of the
Registrable Securities then held, the Eligible Holder shall, within ten
(10) days after receipt of the Intended Offering Notice from the Company,
so notify the Company in writing (the "Piggy-back Notice"), and in such
notice shall inform the Company of the number of Registrable Securities the
Eligible Holder wishes to include in such registration statement and
offered to the public. Upon the request of the Company, the Selling
Shareholders shall enter into such underwriting, custody and other
agreements as shall be customary in connection with registered secondary
offerings or necessary or appropriate in connection with the offering. If
the Eligible Holder decides not to include all of its Registrable
Securities in any registration statement thereafter filed by the Company,
Eligible Holder shall nevertheless continue to have the right to include
any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to
offerings of its securities, all upon the terms and conditions set forth
herein.
(b) Underwriting. If a Registration Statement under which
the Company gives notice under this Section 2.3 is for an underwritten
offering, then the Company shall so advise Eligible Holders. In such event,
the right of Eligible Holders to include Registrable Securities in a
Registration pursuant to this Section 2.3 shall be conditioned upon the
Eligible Holder's participation in such underwriting and the inclusion of
Eligible Holder's Registrable Securities in the underwriting to the extent
provided herein. Each Selling Shareholder shall, in such event, enter into
an underwriting agreement in customary form in connection with registrable
secondary offerings with the managing underwriter or underwriter(s)
selected for such underwriting. Notwithstanding any other provision of this
Agreement, if the underwriter(s) advise(s) the Company and the Selling
Shareholders in writing that in its or their opinion the number of
securities requested to be Registered exceeds the Maximum Number, then the
Company shall so advise the Selling Shareholders and include such Maximum
Number in the Registration. The number of shares that may be included in
the Registration and the underwriting shall be allocated, first, to the
Company, and second, to all Selling Shareholders, based on the relative
proportion of shares of all such Selling Shareholders, and third, if any,
to other securityholders of the Company who have requested that their
securities be included in such Registration Statement and who hold
contractual registration rights with respect to such securities. If any
Selling Shareholder who has elected to participate in the underwritten
offering disapproves of the terms of any such underwriting, such Selling
Shareholder may elect to withdraw therefrom by promptly providing written
notice to the Company and the underwriter, at any time prior to the sale
thereof (or, if applicable, the entry into a binding agreement for such
sale). Any Registrable Securities excluded or withdrawn from such
underwriting shall be excluded and withdrawn from the Registration.
(c) Cumulative Rights. The rights of the Holders pursuant
to Sections 2.2 and 2.3 are cumulative, and the exercise of rights under
one such Section shall not exclude the subsequent exercise of rights under
the other such Section (except to the extent expressly provided otherwise
herein). Notwithstanding anything herein to the contrary, the Company may
abandon and/or withdraw any Registration as to which rights under Section
2.3 may exist at any time and for any reason without liability hereunder.
In such event, the Company shall notify each Selling Shareholder that has
delivered a Piggy-back Notice to participate therein. No Registration of
Applicable Securities effected pursuant to a request under this Section 2.3
shall be deemed to be, or shall relieve the Company of its obligation to
effect, a Registration upon request under Section 2.2 hereof. The Company
may enter into other registration rights agreements; provided, however,
that the rights and benefits of a securityholder with respect to
Registration of the Company's securities as contained in any such other
agreement shall be consistent with, and no more favorable to such
securityholder than, the rights and benefits of holders of Registrable
Securities as contained in this Agreement.
2.4 Obligations of the Company.
(a) Registration Expenses. All Registration Expenses
incurred in connection with a Registration pursuant to Sections 2.2 and 2.3
shall be borne by the Company. Each Selling Shareholders shall bear its
respective proportionate share (based on the total number of shares sold in
such Registration ) of all underwriting discounts or commissions payable to
underwriters or brokers in connection with such offerings.
(b) Registration. Whenever required to effect the
Registration of any Applicable Securities under this Agreement, the Company
shall, as soon as reasonably practicable:
(i) Prepare, and as soon as reasonably practicable
after receiving a Demand Notice or Piggy-back Notice, file with the SEC a
Registration Statement relating to the offer and sale of such Applicable
Securities on any applicable form, and in the case of a Demand Registration
Statement, on any applicable form the Requestor may reasonably request
(which may include a "shelf" Registration Statement on Form S-3 for use in
connection with a delayed or continuous offering under Rule 415 promulgated
under the Securities Act), and use all reasonable efforts to cause such
Registration Statement to be declared effective under the Securities Act as
promptly as reasonably practicable after the date of filing of the
Registration Statement, and to keep such Registration Statement
continuously effective in order to permit the Prospectus forming a part
thereof to be usable by the Selling Shareholders for resales of the
Applicable Securities for a period ending on the earlier of (i) 180 days
from the Effective Time of such Registration Statement and (ii) such time
as all of such Applicable Securities have been disposed of by the Selling
Shareholders.
(ii) Prepare and file with the SEC such amendments
and supplements to such Registration Statement and the prospectus used in
connection with such Registration Statement as may be necessary to comply
with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement.
(iii) Furnish to each Selling Shareholder or its
agents, prior to the Effective Time, a copy of the Registration Statement
initially filed with the Commission, and such number of copies of each
amendment thereto and each amendment or supplement, if any, to the
Prospectus included therein, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents as they may reasonably request in order to facilitate the
disposition of the Applicable Securities owned by them that are included in
such Registration.
(iv) Promptly take such action as may be reasonably
necessary so that (i) each of the Registration Statement and any amendment
thereto and the Prospectus forming part thereof and any amendment or
supplement thereto (and each report or other document incorporated therein
by reference in each case), when it becomes effective, complies in all
material respects with the Securities Act and the 1934 Act and the
respective rules and regulations thereunder, (ii) each of the Registration
Statement and any amendment thereto does not, when it becomes effective,
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 and (iii) each of the Prospectus forming part of the
Registration Statement, and any amendment or supplement to such Prospectus,
does not at any time during the period during which the Company is required
to keep a Registration Statement continuously effective (other than any
period during which it is entitled and elects to postpone offers and sales
under Section 2.2(d) (each, a "Postponement Period")) include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(v) Promptly upon learning thereof, advise each
Selling Shareholder, and shall confirm such advice in writing if so
requested by any such Selling Shareholder:
(a) when the Registration Statement and any
amendment thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto has become
effective;
(b) of any request by the Commission for
amendments or supplements to the Registration Statement or the Prospectus
included therein or for additional information;
(c) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for such purpose;
(d) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
securities included in the Registration Statement for sale in any
jurisdiction or the initiation of any proceeding for such purpose;
(e) following the effectiveness of any
Registration Statement, of the happening of any event or the existence of
any state of facts that requires the making of any changes in the
Registration Statement or the Prospectus included therein so that, as of
such date, such Registration Statement and Prospectus do 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 the Prospectus, in light of the circumstances under
which they were made) not misleading (which advice shall be accompanied by
an instruction to such Selling Shareholder to suspend the use of the
Prospectus until the requisite changes have been made which instruction
such Selling Shareholders agree to follow); and
(f) if at any time any of the representations
and warranties of the Company contemplated by paragraph (xii) below cease
to be true and correct or will not be true and correct as of the closing
date for the offering.
(vi) 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.
(vii) Upon written request, furnish to each Selling
Shareholder, without charge, at least one copy of the Registration
Statement and all post-effective amendments thereto, including financial
statements and schedules, and all reports, other documents and exhibits
that are filed with or incorporated by reference in the Registration
Statement.
(viii) During the period the Company is required to
keep a Registration Statement continuously effective under Section
2.4(b)(i) or elects to keep effective, deliver to each Selling Shareholder
and any managing underwriter or agent, without charge, as many copies of
the Prospectus included in the Registration Statement and any amendment or
supplement thereto and other documents as they may reasonably request to
facilitate the distribution of the Applicable Securities; and the Company
consents to the use of the Prospectus, with any amendment or supplement
thereto, by each of the Selling Shareholders and any managing underwriter
or agent in connection with the offering and sale of the Applicable
Securities covered by the Prospectus and any amendment or supplement
thereto during such period.
(ix) Use reasonable efforts to register or qualify or
cooperate with the Selling Shareholders and their respective counsel in
connection with the registration or qualification of such Applicable
Securities for offer and sale under any applicable securities or "blue sky"
laws of such jurisdictions within the United States as any Selling
Shareholder may reasonably request, use reasonable efforts to 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 the
period during which the Company is required to keep a Registration
Statement continuously effective under Section 2.4(b)(i) or elects to keep
effective and take any and all other actions reasonably requested by a
Selling Shareholder which are necessary or advisable to enable the
disposition in such jurisdictions of such Applicable Securities; provided,
however, that nothing contained in this Section shall require the Company
to (A) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for
this Section or (B) take any action which would subject it to general
service of process or taxation in any such jurisdiction if it is not then
so subject.
(x) Use reasonable best efforts to cause all such
Applicable Securities to be sold pursuant to the Registration Statement to
be listed on any securities exchange or automated quotation service on
which securities of the Company are listed or quoted.
(xi) Cooperate with the Selling Shareholders to
facilitate the timely preparation and delivery of certificates representing
Applicable Securities to be sold pursuant to the Registration Statement,
which certificates shall comply with the requirements of any securities
exchange or automated quotation service on which any securities of the
Company are listed and quoted, and which certificates shall be free of any
restrictive legends and in such permitted denominations and registered in
such names as the Selling Shareholders or any managing underwriter or agent
may request in connection with the sale of Applicable Securities pursuant
to the Registration Statement.
(xi) Upon the occurrence of any fact or event
contemplated by Section 2.4(b)(v)(e) hereof, the Company shall promptly
prepare a post-effective amendment or supplement to the Registration
Statement or the Prospectus, or any document incorporated therein by
reference, or file any other required document so that, after such
amendment or supplement, such Registration Statement and Prospectus do 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 the Prospectus, in light of the
circumstances under which they were made) not misleading; provided,
however, that the Company shall not be required to take any such action
during a Postponement Period (but it shall promptly thereafter). In the
event that the Company notifies the Selling Shareholders of the occurrence
of any event contemplated by Section 2.4(b)(v)(e) hereof, each Seller
Shareholder agrees, as a condition of the inclusion of any of such Seller
Shareholder's Applicable Securities in the Registration Statement, to
suspend the use of the Prospectus until the requisite changes to the
Prospectus have been made.
(xii) Enter into such customary agreements (including
an underwriting agreement in customary form in the event of an underwritten
offering) and take all other reasonable and appropriate action in order to
expedite and facilitate the registration and disposition of the Applicable
Securities, and in connection therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and
procedures substantially identical to those set forth in Section 2.7 hereof
with respect to all parties to be indemnified pursuant to Section 2.7
hereof. In addition, in such agreements, the Company will make such
representations and warranties to the Selling Shareholders and the
underwriters or agents, if any, in form, substance and scope as are
customarily made by issuers in primary equity offerings. The Selling
Shareholders shall be party to such agreements and may, at their option,
require that any or all of the representations and warranties by, and the
other agreements on the part of, the Company to and for the benefit of such
underwriters shall also be made to and for the benefit of the Selling
Shareholders and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of the Selling Shareholders. No
Selling Shareholders shall be required to make any representations or
warranties to or agreements with the Company or the underwriters or agents
other than representations, warranties or agreements relating to such
Selling Shareholder, its Applicable Securities and its intended method of
distribution or any other representations required by law.
(xiii) Agree, if requested by the managing
underwriter in an underwritten offering, not to effect any public sale or
distribution of any securities the same as or similar to the Applicable
Securities registered under the Registration Statement relating to such
offering, or any securities convertible into or exchangeable or exercisable
for such Applicable Securities, during the ten day period prior to, and
during the 180-day period beginning on, the effective date of a
Registration Statement or, if later, the commencement of the public
distribution of securities to the extent timely notified in writing by the
managing underwriters. The Selling Shareholders agree, if reasonably
requested by the managing underwriter in an underwritten primary offering
of equity securities by the Company or securities convertible into or
exchangeable for such securities, not to effect a public sale or
distribution of Applicable Securities the same as or similar to those being
registered in such underwritten offering (except as part of such offering)
during the ten day period prior to, and during the 180-day period beginning
on, the effective date of the Registration Statement relating thereto or,
if later, the commencement of the public distribution of such securities,
to the extent timely notified in writing by such managing underwriter.
(xiv) Use best efforts to:
(a) (1) make reasonably available for inspection
by the Selling Shareholders, any underwriter participating in any
disposition pursuant to the Registration Statement, and any attorney,
accountant or other agent retained by such Selling Shareholder or any such
underwriter all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, and (2) cause
the Company's officers, directors and employees to supply all information
reasonably requested by such Selling Shareholders or any such underwriter,
attorney, accountant or agent in connection with the Registration
Statement, in each case, as is customary for similar due diligence
examinations; provided, however, that all records, information and
documents that are designated by the Company, in good faith, as
confidential shall be kept confidential by such Selling Shareholders and
any such underwriter, attorney, accountant or agent, unless such disclosure
is required in connection with a court proceeding after such advance notice
to the Company (to the extent practicable in the circumstances) so as to
permit the Company to contest the same, 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 the Company's conduct of its
business, such inspection and information gathering shall, to the greatest
extent possible, be coordinated on behalf of the Selling Shareholders and
the other parties entitled thereto by one counsel designated by and on
behalf of the Selling Shareholders and other parties;
(b) in connection with any underwritten
offering, obtain opinions of counsel to the Company (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to
the underwriters) addressed to the underwriters, covering the matters
customarily covered in opinions requested in secondary underwritten
offerings of equity securities, to the extent reasonably required by the
applicable underwriting agreement;
(c) if requested, in connection with any
underwritten offering, obtain "cold comfort" letters and updates thereof
from the independent public accountants of the Company (and, if necessary,
from the independent public accountants of any subsidiary of the Company or
of any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each Selling Shareholder participating in such
underwritten offering (if such Selling Shareholder has provided such
letter, representations or documentation, if any, required for such cold
comfort letter to be so addressed) and the underwriters, in customary form
and covering matters of the type customarily covered in "cold comfort"
letters in connection with secondary underwritten offerings of equity
securities;
(d) in connection with any underwritten
offering, deliver such documents and certificates as may be reasonably
requested by any Selling Shareholders participating in such underwritten
offering and the underwriters, if any, including, without limitation,
certificates to evidence compliance with any material conditions contained
in the underwriting agreement or other agreements entered into by the
Company; and
(e) use its best efforts to comply with all
applicable rules and regulations of the Commission and make generally
available to its security holders, as soon as reasonably practicable (but
not more than twelve months) after the effective date of the Registration
Statement, an earnings statement satisfying the provisions of Section 11(a)
of the Securities Act and the rules and regulations promulgated thereunder.
(xv) Not later than the effective date of the
applicable Registration Statement, provide a CUSIP number for all
Registrable Securities and provide the applicable transfer agent with
printed certificates for the Applicable Securities which are in a form
eligible for deposit with The Depository Trust Company.
(xvi) Cooperate with each Selling Shareholder and
each underwriter or agent participating in the disposition of such
Applicable Securities and their respective counsel in connection with any
filings required to be made with the National Association of Securities
Dealers, Inc. (the "NASD").
(xvii) As soon as reasonably practicable after filing
with the Commission of any document which is incorporated by reference into
the Registration Statement or the Prospectus, upon written request, provide
copies of such document to counsel for each Selling Shareholder and to the
managing underwriters and agents, if any.
(xviii) Provide and cause to be maintained a transfer
agent and registrar for all Applicable Securities covered by such
Registration Statement from and after a date not later than the effective
date of such Registration Statement.
(xix) Use reasonable best efforts to take all other
steps necessary to effect the timely Registration of the Applicable
Securities covered by the Registration Statements contemplated hereby.
2.5 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 2 that
each Selling Shareholder shall deliver to the Company a duly completed
Notice and Questionnaire, and furnish to the Company such information
regarding it, the Registrable Securities held by it, the intended method of
disposition of such securities as shall be required to timely effect the
Registration of their Registrable Securities, and such other information as
may be required by law for inclusion in the Registration Statement.
2.6 Delay of Registration. Neither Requestor nor any Eligible
Holder shall have any right to obtain or seek an injunction restraining or
otherwise delaying any such Registration as the result of any controversy
that might arise with respect to the interpretation or implementation of
this Section 2.
2.7 Indemnification. In the event any Registrable Securities are
included in a Registration Statement under Sections 2.2 or 2.3:
(a) By the Company. To the extent permitted by law, the
Company will indemnify and hold harmless, each Selling Shareholder, and
their respective members, officers, employees and agents, any underwriter
(as defined in the Securities Act), selling agent or other securities
professional for the Selling Shareholders and each Person, if any, who
controls any Selling Shareholder, underwriter, selling agent or other
securities professional within the meaning of the Securities Act or the
1934 Act against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Securities Act, the
1934 Act or other federal or state law or otherwise, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions
or violations (collectively a "Violation"):
(i) any untrue statement or alleged untrue statement of a material
fact contained in such Registration Statement, including any Prospectus
contained therein or any amendments or supplements thereto;
(ii) the omission or alleged omission to state therein a material
fact required to be stated therein, or necessary to make the statements
therein not misleading, or
(iii) any violation or alleged violation by the Company of the
Securities Act, the 1934 Act, any federal or state securities law or any
role or regulation promulgated under the Securities Act, the 1934 Act or
any federal or state securities law in connection with the offering covered
by such Registration Statement;
and the Company will reimburse each Selling Shareholder and their
respective members, officers, employees and agents, underwriter, selling
agent or other securities professional or controlling Person for any legal
or other expenses reasonably incurred by them, as incurred, in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (A) the Company will not be liable, in an
offering in which the Company did not execute an underwriting agreement or
in which there was no underwriter, to any Selling Shareholder under this
Section with respect to any Prospectus to the extent that any such loss,
liability, claim, damage or expense of such holder results from the fact
that a Selling Shareholder sold Registrable 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 final prospectus if the Company has previously and
timely furnished copies thereof to such holder; (B) the indemnity agreement
contained in this subsection 2.7(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the written consent of the Company (which
consent shall not be unreasonably withheld), and (C) the Company shall not
be liable in any such case for any such loss, claim, damage, liability or
action to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written information
furnished expressly for use in connection with such Registration by a
Selling Shareholder, or their respective members, officers, employees and
agents, underwriter or controlling Person thereof.
(b) By each Selling Shareholder. To the extent permitted
by law, each Selling Shareholder, severally and not jointly, will indemnify
and hold harmless the Company, each of its directors, each of its officers
who have signed the Registration Statement, each Person, if any, who
controls the Company within the meaning of the Securities Act, and any
underwriter against any losses, claims, damages or liabilities to which the
Company or any such director, officer, controlling Person, or underwriter
may become subject under the Securities Act, the 1934 Act or other federal
or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation,
in each case to the extent (and only to the extent) that such Violation
occurs in reliance upon and in conformity with written information
furnished by such Selling Shareholder expressly for use in connection with
such Registration ; and such Selling Shareholder will reimburse any legal
or other expenses reasonably incurred by the Company or any such director,
officer, controlling Person, or underwriter in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this
subsection 2.7(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected
without the consent of such Selling Shareholder, which consent shall not be
unreasonably withheld; and provided further, that the total amounts payable
in indemnity by any Selling Shareholder under this Section 2.7(b) in
respect of any Violation shall not exceed the proceeds (net of
underwriters' and brokers' discounts and commissions) received by such
Selling Shareholder in the registered offering out of which such Violation
arises. For the avoidance of doubt, this provision shall not impose any
indemnity obligation on a Selling Shareholder to the extent that the
Violation did not occur in reliance upon and in conformity with written
information furnished by such Person.
(c) Notice. Promptly after receipt by an indemnified
party under this Section 2.7 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under
this Section 2.7, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume the
defense thereof with counsel mutually satisfactory to the parties;
provided, however, that if the indemnifying party assumes such defense the
indemnifying party shall have no further liability for the fees and
expenses of counsel paid by the indemnified party, except that an
indemnified party shall have the right to retain its own counsel, with the
fees and expenses to be paid by the indemnifying party, if representation
of such indemnified party by the counsel retained by the indemnifying party
would be inappropriate due to actual or potential conflict of interests
between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
indemnified party except to the extent of any actual prejudice.
(d) Contribution. If the indemnification provided in this
section 2.7 is unavailable or insufficient to hold harmless an indemnified
party under Section 2.7(a) or (b), then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to above (i)
in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Selling Shareholders on the
other from the offering of the securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company
on the one hand and the Selling Shareholder(s) on the other in connection
with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other equitable considerations. The
relative benefits received by the Company on the one hand and the Selling
Shareholder(s) on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering received by the Company bear to
the total net proceeds received by the Selling Shareholder(s). The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact related to information supplied
by the Company or written information supplied by a Selling Shareholder,
and the parties' relevant intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this paragraph
(d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending against any action or claim that is the subject of this Section.
Notwithstanding the provisions of this Section, a Selling Shareholder shall
not be required to contribute any amount in excess of the amount of the
total net proceeds (net of commissions) received by such Selling
Shareholder from the sale of the securities pursuant to this Agreement
exceeds the amount of any damages or expenses that a Selling Shareholder
has otherwise been required to pay, or has incurred, by reason of such
untrue or alleged untrue statement or omission or alleged omission. 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 Selling Shareholders in this Section 2.7(d) to
contribute shall be several in proportion to the percentage of principal
amount of Registrable Securities registered or underwritten, as the case
may be, by them and not joint.
(e) Survival. The obligations of the Company and Eligible
Holders under this Section 2.7 shall survive the completion of any offering
of Registrable Securities in a Registration Statement, and otherwise.
2.8 Termination of the Company's Obligations. The Company shall
have no obligations pursuant to Section 2 with respect to: (i) any request
or requests for Registration made by a Requestor on a date more than twelve
(12) years after the date of this Agreement at a time when such Requestor
is not an affiliate of the Company; or (ii) any Registrable Securities
proposed to be sold by a Requestor in a Registration pursuant to Section
2.2 or 2.3 if, in the opinion of counsel to the Company, all such
Registrable Securities are Unrestricted Securities.
3. GENERAL PROVISIONS.
3.1 Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. This Agreement shall extend to all
successive transferees of the Note and Registrable Securities, each of
which Persons are hereby made third party beneficiaries hereof and may
enforce the terms of this Agreement as if such Person was a direct party
hereto.
3.2 Third Parties. Nothing in this Agreement, express or implied,
is intended to confer upon any Person, other than the parties hereto and
their successors and assigns and third party beneficiaries hereof, any
rights or remedies under or by reason of this Agreement.
3.3 Governing Law and Venue. Except as noted below, this Agreement
shall be governed by and construed in accordance with the laws of the State
of Washington. In any court proceeding, the Company agrees to submit to the
jurisdiction of the federal court selected by Investor, and venue of any
action concerning this Note shall be in King County, Washington state. In
the event that the federal court selected by Investor shall not have
jurisdiction, the Company agrees to submit to the jurisdiction of the
Washington state court in King County selected by Investor. The Company
hereby irrevocably waives to the fullest extent permitted by law any
objection which it may now or hereafter have to the laying of such venue
and any claim that any such forum is an inconvenient forum. Nothing in this
Section shall impair the right of Investor to bring any action or
proceeding against the Company or its property in the courts of any other
county or jurisdiction and the Company irrevocably submits to the
nonexclusive jurisdiction of the appropriate courts (as selected by
Investor) of the jurisdiction in which the Company is organized or any
place where any property or any office of the Company is located. In the
event Investor transfers or assigns the Note in whole, but not in part, to
a Person not an affiliate (as defined in Rule 405 under the 1933 Act), then
this Agreement shall be governed by and construed in accordance with the
laws of the State of New York and the consent to jurisdiction in the State
of Washington stated above is hereby revoked.
3.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Agreement to produce or
account for more than one such counterpart. Each counterpart may consist of
a number of copies hereof, each signed by less than all, but together
signed by all, of the parties hereto.
3.5 Headings. The headings and captions used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement. All references in this Agreement to sections,
paragraphs, exhibits and schedules shall, unless otherwise provided, refer
to sections and paragraphs hereof and exhibits and schedules attached
hereto, all of which exhibits and schedules are incorporated herein by this
reference.
3.6 Notices. Any notice required or permitted to be given under
the terms of this Agreement shall be sent by certified or registered mail
(return receipt requested) or delivered personally or by courier (including
a recognized overnight delivery service) or by facsimile and shall be
effective for five days after being placed in the mail, if mailed by
regular U.S. mail, or upon receipt, if delivered personally or by courier
(including a recognized overnight delivery service) or by facsimile, in
each case addressed to a party. The addresses for such communications shall
be:
If to the Company:
Gabelli Asset Management Inc.
Xxx Xxxxxxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
Attn: Xxxxx X. XxXxx, Esq.
Facsimile: (000) 000-0000
With copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
If to the Investor:
Cascade Investment LLC
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
With copy to:
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. XxXxxxxxx, Esq.
Facsimile: (000) 000-0000
3.7 Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys'
fees, experts' fees and costs, including those for pretrial, trial, on
appeal, in arbitration and in bankruptcy and all other costs and necessary
disbursements associated with any such actions, in addition to any other
relief to which such party may be entitled. The foregoing shall be in
addition to, and shall not limit, any other rights that the non-breaching
party may have against the breaching party at law or in equity.
3.8 Adjustments for Stock Splits, Etc. Wherever in this Agreement
there is a reference to a specific number of shares of common stock of the
Company of any class or series, then, upon the occurrence of any
subdivision, combination or stock dividend of such class or series of
stock, the specific number of shares so referenced in this Agreement shall
automatically be proportionally adjusted to reflect the affect on the
outstanding shares of such class or series of stock by such subdivision,
combination or stock dividend.
3.9 Aggregation of Stock. All shares held or acquired by
affiliated Persons shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
3.10 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of Company and Investor (or,
following assignment and transfer of the Note, by those holders owning more
than 50% of the principal amount of the Note). Any amendment or waiver
effected in accordance with this Section shall be binding upon each future
holder of Registrable Securities, and Company. No waiver of any of the
provisions of this Agreement shall be deemed to be or shall constitute a
waiver of any other provisions hereof, whether or not similar, nor shall
any such waiver constitute a continuing waiver. No waiver shall be binding
unless expressed as such in a document executed by the party making the
waiver.
3.11 Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision
shall not affect the validity or enforceability of the other provisions
hereof. If any provision of this Agreement, or the application thereof to
any Person or entity or any circumstance, is invalid or unenforceable, (a)
a suitable and equitable provision shall be substituted therefor in order
to carry out, so far as may be valid and enforceable, the intent and
purpose of such invalid or unenforceable provision and (b) the remainder of
this Agreement and the application of such provision to other Persons,
entities or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof,
in any other jurisdiction.
3.12 Entire Agreement. This Agreement, together with all exhibits
and schedules hereto, constitutes the entire agreement and understanding of
the parties with respect to the subject matter hereof and supersedes any
and all prior negotiations, correspondence, agreements, understandings
duties or obligations between the parties with respect to the subject
matter hereof.
[The balance of this page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date and year first above written.
"COMPANY":
GABELLI ASSET MANAGEMENT INC.,
a New York corporation
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxxx
Vice President and CFO
"INVESTOR":
CASCADE INVESTMENT LLC, a
Washington limited liability company
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Xxxxxxx Xxxxxx
EXHIBIT A
Gabelli Asset Management Inc.
Notice of Registration Statement
and
Questionnaire
(Date)
Reference is hereby made to the Registration Rights
Agreement (the "Registration Rights Agreement"), dated August 143, 2001,
between Gabelli Asset Management Inc. ("Gabelli") and Cascade Investment
LLC. Gabelli [has filed] with the United States Securities and Exchange
Commission (the "Commission") a registration statement on Form ____ (the
"Registration Statement") for the registration and resale under the
Securities Act of 1933, as amended (the "Securities Act"), of Gabelli's
[Title of Securities] (the "Securities"). All capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Registration Rights Agreement.
Each Holder of Registrable Securities is entitled to have
the Registrable Securities owned by it included in the Registration
Statement. In order to have Registrable Securities included in the
Registration Statement, this Notice of Registration Statement and Selling
Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to Gabelli's counsel at the address set
forth herein. Holders of Registrable Securities who do not complete,
execute and return this Notice and Questionnaire (i) will not be named as
selling securityholders in the Registration Statement and (ii) may not use
the Prospectus forming a part thereof for resales of Registrable
Securities.
Certain legal consequences arise from being named as a
selling securityholder in the Registration Statement and related
Prospectus. Accordingly, Holders of Registrable Securities are advised to
consult their own securities law counsel regarding the consequences of
being named or not being named as a selling securityholder in the
Registration Statement and related Prospectus.
ELECTION
The undersigned Holder (the "Selling Shareholder") of
Registrable Securities hereby elects to include in the Registration
Statement the Registrable Securities beneficially owned by it and listed
below in Item (3). The undersigned, by signing and returning this Notice
and Questionnaire, agrees to be bound with respect to such Registrable
Securities by the terms and conditions of this Notice and Questionnaire and
the Registration Rights Agreement, including, without limitation, Section
2.7 of the Registration Rights Agreement, as if the undersigned Selling
Shareholder were an original party thereto.
The Selling Shareholder hereby provides the following information
to Gabelli and represents and warrants that such information is accurate
and complete:
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Shareholder:
(b) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in (3) below:
(2) Address for Notices to Selling Shareholder:
Telephone:
Fax:
Contact Person:
(3) Except as set forth below in this Item (3), the undersigned does
not beneficially own any Registrable Securities.
(a) Number and type of Registrable Securities (as defined in
the Registration Rights Agreement) beneficially owned:
(b) Number and type of Registrable Securities which the
undersigned wishes to be included in the Registration
Statement:
(4) Beneficial Ownership of other securities of Gabelli:
Except as set forth below in this Item (4), the undersigned
Selling Shareholder is not the beneficial or registered owner of any shares
or any other securities of Gabelli, other than the Registrable Securities
listed above in Item (3).
State any exceptions here:
(5) Relationships with Gabelli:
Except as set forth below, neither the Selling Shareholder nor any
of its affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with Gabelli (or its predecessors or affiliates) during the
past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Shareholder
intends to distribute the Registrable Securities listed above in Item (3)
only as follows (if at all): Such Registrable Securities may be sold from
time to time directly by the undersigned Selling Shareholder or,
alternatively, through underwriters, broker-dealers or agents. Such
Registrable Securities may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at varying prices
determined at the time of sale, or at negotiated prices. Such sales may be
effected in transactions (which may involve crosses or block transactions)
(i) on any national securities exchange or quotation service on which the
Registered Securities may be listed or quoted at the time of sale, (ii) in
the over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable
Securities or otherwise, the Selling Shareholder may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales
of the Registrable Securities in the course of hedging the positions they
assume. The Selling Shareholder may also sell Registrable Securities short
and deliver Registrable Securities to close out such short positions, or
loan or pledge Registrable Securities to broker-dealers that in turn may
sell such securities.
State any exceptions here:
In the event that the Selling Shareholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the
date on which such information is provided to Gabelli, the Selling
Shareholder agrees to notify the transferee(s) at the time of the transfer
of its rights and obligations under this Notice and Questionnaire and the
Registration Rights Agreement.
By signing below, the Selling Shareholder consents to the
disclosure of the information contained herein in its answers to Items (1)
through (6) above and the inclusion of such information in the Registration
Statement and related Prospectus. The Selling Shareholder understands that
such information will be relied upon by Gabelli in connection with the
preparation of the Registration Statement and related Prospectus.
In accordance with the Selling Shareholder's obligation under
Section 2.5 of the Registration Rights Agreement to provide such
information as may be required by law for inclusion in the Registration
Statement, the Selling Shareholder agrees to promptly notify Gabelli of any
inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Registration Statement
remains in effect. All notices hereunder and pursuant to the Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class
mail, or air courier guaranteeing overnight delivery as follows:
(i) To Gabelli:
Gabelli Asset Management Inc.
Xxx Xxxxxxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
Attn: Xxxxx X. XxXxx, Esq.
Facsimile: (000) 000-0000
(ii) With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
Once this Notice and Questionnaire is executed by the Selling
Shareholder and received by Gabelli's counsel, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable
by the respective successors, heirs, personal representatives, and assigns
of Gabelli and the Selling Shareholder (with respect to the Registrable
Securities beneficially owned by such Selling Shareholder and listed in
Item (3) above. This Agreement shall be governed in all respects by the
laws of the State of Washington.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
-----------------------------
Selling Shareholder
By: _____________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE
FOR RECEIPT ON OR BEFORE [DEADLINE FOR RESPONSE] TO GABELLI'S COUNSEL AT:
