EXHIBIT 10.2
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EXHIBIT F
FORM OF REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT
between
UNIFI, INC.
and
XXXXXX YARN CORPORATION
___________________________________________
_________________, 200_
___________________________________________
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TABLE OF CONTENTS
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1. Definitions and Interpretation.........................................1
(a) Certain Definitions...........................................1
(b) Interpretation................................................5
2. Restrictive Legend.....................................................5
(a) Legend........................................................5
(b) Stop Transfer Instructions....................................6
(c) Legending.....................................................6
(d) Restrictions on Transfer......................................6
3. General; Securities Subject to this Agreement..........................6
(a) Grant of Rights...............................................6
(b) Registrable Securities........................................6
(c) Holders of Registrable Securities.............................7
4. Shelf Registration.....................................................7
(a) Filing of Shelf Registration..................................7
(b) Underwriting Procedures.......................................7
(c) Expenses......................................................7
(d) Form S-3......................................................7
5. Incidental or "Piggy-Back" Registration................................8
(a) Request for Incidental or "Piggy-Back" Registration...........8
(b) Expenses......................................................8
(c) Confidentiality...............................................9
6. Restrictions on Transfer...............................................9
(a) Lock-Up.......................................................9
(b) Holder Lock-Up Agreements....................................10
(c) Company Lock-Up Agreements...................................10
(d) Third Party Beneficiaries of Lock-Up Agreements..............10
(e) Further Actions..............................................11
7. Registration Procedures...............................................11
(a) Obligations of the Company...................................11
(b) Seller Obligations...........................................15
(c) Notice to Discontinue........................................16
(d) Valid Business Reason........................................16
(e) Registration Expenses........................................16
8. Indemnification; Contribution.........................................17
(a) Indemnification by the Company...............................17
(b) Indemnification by the Holders...............................17
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(c) Conduct of Indemnification Proceedings.......................18
(d) Contribution.................................................19
9. Exchange Act Reporting and Rule 144...................................19
10. Miscellaneous.........................................................19
(a) Assumption of Agreement......................................19
(b) Amendments and Waivers.......................................20
(c) Notices......................................................20
(d) Successors and Assigns.......................................21
(e) Headings.....................................................21
(f) Governing Law................................................21
(g) Dispute Resolution...........................................21
(h) Severability.................................................22
(i) Rules of Construction........................................22
(j) Entire Agreement.............................................22
(k) Counterparts.................................................22
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated ______________, 200_, by and
between Unifi, Inc., a New York corporation (the "COMPANY") and Xxxxxx Yarn
Corporation, a South Carolina corporation ("Xxxxxx"). Capitalized terms used
but not otherwise defined herein shall have the respective meanings ascribed to
such terms in Section 1.
R E C I T A L S:
A. Pursuant to the Asset Purchase Agreement, dated October 25,
2006 (the "PURCHASE AGREEMENT"), by and between Unifi Manufacturing, Inc., a
North Carolina corporation ("UNIFI") and a wholly owned subsidiary of the
Company, and Xxxxxx, as partial consideration for the purchase by Unifi of
certain assets of Xxxxxx, Xxxxxx has received 8,333,333 shares of Common Stock,
par value $0.10 per share, of the Company.
B. The Company has agreed to grant registration rights with
respect to the Registrable Securities as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS AND INTERPRETATION.
(a) CERTAIN DEFINITIONS. As used in this Agreement, and
unless the context requires a different meaning, the following terms have the
meanings indicated:
"AFFILIATE" means any Person who is an "affiliate" as defined in Rule
12b-2 of the General Rules and Regulations promulgated under the Exchange Act.
"AGREEMENT" means this Agreement as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"APPROVED UNDERWRITER" has the meaning set forth in Section 4(b).
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which commercial banks in the States of North Carolina and New York are
authorized or required by law or executive order to close.
"CLOSING PRICE" means, with respect to the Registrable Securities, as
of the date of determination, (i) if the Registrable Securities are listed on a
national securities exchange, the closing price per share of a Registrable
Security on such date published in THE WALL STREET JOURNAL (NATIONAL EDITION)
or, if no such closing price on such date is published in THE WALL STREET
JOURNAL (NATIONAL EDITION), the average of the closing bid and asked prices on
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such date, as officially reported on the principal national securities exchange
on which the Registrable Securities are then listed or admitted to trading; or
(ii) if the Registrable Securities are not then listed or admitted to trading
on any national securities exchange but are designated as national market
system securities by the NASD, the last trading price per share of a
Registrable Security on such date; or (iii) if there shall have been no trading
on such date or if the Registrable Securities are not designated as national
market system securities by the NASD, the average of the reported closing bid
and asked prices of the Registrable Securities on such date as shown by The
Nasdaq Stock Market, Inc. and reported by any member firm of The New York Stock
Exchange, Inc. selected by the Company; or (iv) if none of clause (i), (ii) or
(iii) is applicable, a market price per share determined in good faith by the
Board of Directors or, if such determination is not satisfactory to the
Majority Holders, by a nationally recognized investment banking firm mutually
selected by the Company and the Majority Holders, the expenses for which shall
be borne equally by the Company and the Majority Holders. If trading is
conducted on a continuous basis on any exchange, then the closing price shall
be at 4:00 P.M. New York City time.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the Common Stock, par value $0.10 per share, of
the Company or any other capital stock of the Company into which such stock is
reclassified or reconstituted and any other common stock of the Company.
"COMMON STOCK EQUIVALENTS" means any security or obligation which is by
its terms, directly or indirectly, convertible into or exchangeable or
exercisable for shares of Common Stock, including any option, warrant or other
subscription or purchase right with respect to shares of Common Stock or any
Common Stock Equivalent.
"COMPANY" has the meaning set forth in the preamble to this Agreement.
"COMPANY UNDERWRITER" has the meaning set forth in Section 5(a).
"XXXXXX" has the meaning set forth in the preamble to this Agreement.
"DISCLOSURE PACKAGE" means, with respect to any offering of securities,
(i) the preliminary Prospectus, and (ii) all other information, in each case,
that is deemed, under Rule 159 under the Securities Act, to have been conveyed
to purchasers of securities at the time of sale of such securities (including a
contract of sale).
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and the rules
and regulations of the Commission promulgated thereunder.
"FREE WRITING PROSPECTUS" means any "free writing prospectus" as
defined in Rule 405 of the General Rules and Regulations promulgated under the
Securities Act.
"HEDGING COUNTERPARTY" means a broker-dealer registered under Section
15(b) of the Exchange Act or an Affiliate thereof.
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"HEDGING TRANSACTION" means any transaction involving a security linked
to the Registrable Class Securities or any security that would be deemed to be
a "derivative security" (as defined in Rule 16a-1(c) under the Exchange Act)
with respect to the Registrable Class Securities or transaction (even if not a
security) which would (were it a security) be considered such a derivative
security, or which transfers some or all of the economic risk of ownership of
the Registrable Class Securities, including any forward contract, equity swap,
put or call, put or call equivalent position, collar, non-recourse loan, sale
of exchangeable security or similar transaction. For the avoidance of doubt,
the following transactions shall be deemed to be Hedging Transactions:
(a) transactions by a Holder in which a Hedging
Counterparty engages in short sales of the Registrable Securities pursuant to a
Prospectus and may use Registrable Securities to close out its short position;
(b) transactions pursuant to which a Holder sells short
Registrable Securities pursuant to a Prospectus and delivers Registrable
Securities to close out its short position;
(c) transactions by a Holder in which such Holder delivers,
in a transaction exempt from registration under the Securities Act, Registrable
Securities to the Hedging Counterparty who will then publicly resell or
otherwise transfer such Registrable Securities pursuant to a Prospectus or an
exemption from registration under the Securities Act; and
(d) a loan or pledge of Registrable Securities to a Hedging
Counterparty who may then become a selling stockholder and sell the loaned
shares or, in an event of default in the case of a pledge, then sell the
pledged shares, in each case, in a public transaction pursuant to a Prospectus.
"HOLDER" means Xxxxxx and any Permitted Transferee.
"HOLDERS' COUNSEL" has the meaning set forth in Section 7(a)(i).
"INCIDENTAL REGISTRATION" has the meaning set forth in Section 5(a).
"INDEMNIFIED PARTY" has the meaning set forth in Section 8(c).
"INDEMNIFYING PARTY" has the meaning set forth in Section 8(c).
"INSPECTORS" has the meaning set forth in Section 7(a)(viii).
"LIABILITY" has the meaning set forth in Section 8(a).
"LOCK-UP AGREEMENTS" has the meaning set forth in Section 6(b).
"LOCK-UP PERIOD" has the meaning set forth in Section 6(a).
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"MAJORITY HOLDERS" means Holders of a majority of the outstanding
Registrable Securities.
"MARKET PRICE" means, on any date of determination, the average of the
daily Closing Price of the Registrable Securities for the immediately preceding
30 days on which the national securities exchanges are open for trading.
"NASD" means the National Association of Securities Dealers, Inc.
"OFFERING CONFIDENTIAL INFORMATION" has the meaning set forth in
Section 5(c).
"PERMITTED TRANSFEREE" has the meaning set forth in Section 6(a).
"PERSON" means any individual, firm, corporation, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, limited liability company, government (or an
agency or political subdivision thereof) or other entity of any kind, and shall
include any successor (by merger or otherwise) of such entity.
"PROSPECTUS" means any "prospectus" as defined in Rule 405 of the
Securities Act.
"PURCHASE AGREEMENT" has the meaning set forth in Recital A.
"RECORDS" has the meaning set forth in Section 7(a)(viii).
"REGISTRABLE CLASS SECURITIES" means securities of the Company that are
of the same class as the Registrable Securities.
"REGISTRABLE SECURITIES" means each of the following: (i) any and all
shares of Common Stock issued to Xxxxxx at the closing of the transaction
contemplated by the Purchase Agreement; and (ii) any shares of Common Stock
issued or issuable to a Holder with respect to the Registrable Securities by
way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise and any shares of Common Stock or voting common stock issuable upon
conversion, exercise or exchange thereof.
"REGISTRATION EXPENSES" has the meaning set forth in Section 7(e).
"REGISTRATION STATEMENT" means a registration statement filed pursuant
to the Securities Act.
"SECTION 5(A) NOTICE" has the meaning set forth in Section 5(a).
"SECURITIES ACT" means the Securities Act of 1933 and the rules and
regulations of the Commission promulgated thereunder.
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"SHELF REGISTRATION" has the meaning set forth in Section 4(a).
"TRANSFER" means, with respect to any security, the offer for sale,
sale, pledge, transfer or other disposition or encumbrance (or any transaction
or device that is designed to or could be expected to result in the transfer or
the disposition by any Person at any time in the future) of such security, and
includes any Hedging Transaction.
"UNDERWRITTEN PUBLIC OFFERING" of securities means a public offering of
such securities registered under the Securities Act in which an underwriter,
placement agent or other intermediary participates in the distribution of such
securities.
"UNIFI" has the meaning set forth in Recital A.
(b) INTERPRETATION. Unless otherwise expressly provided:
(i) All references to laws, rules, regulations and
forms in this Agreement shall be deemed to be references to such laws, rules,
regulations and forms, as amended from time to time or, to the extent replaced,
the comparable successor thereto in effect at the time.
(ii) All references to agencies, self-regulatory
organizations or governmental entities in this Agreement shall be deemed to be
references to the comparable successor thereto.
(iii) All references to agreements and other
contractual instruments shall be deemed to be references to such agreements or
other instruments as they may be amended from time to time.
(iv) The words "include," "includes" and "including"
do not limit the preceding words or terms and shall be deemed to be followed by
the words "without limitation".
"VALID BUSINESS REASON" has the meaning set forth in Section 7(d).
2. RESTRICTIVE LEGEND.
(a) LEGEND. Each certificate representing shares of
Registrable Securities issued pursuant to the Purchase Agreement shall, unless
otherwise permitted by the provisions of Section 2(c), be marked by the Company
with legends (together with any other legend with which such certificate is
required to be marked) in substantially the following form:
THE SHARES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). SUCH SHARES
MAY NOT BE TRANSFERRED UNLESS A REGISTRATION STATEMENT UNDER
THE ACT IS IN EFFECT AS TO SUCH TRANSFER OR, IN THE OPINION OF
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COUNSEL FOR THE COMPANY, SUCH TRANSFER MAY BE MADE PURSUANT TO
RULE 144 OR REGISTRATION UNDER THE ACT IS OTHERWISE
UNNECESSARY IN ORDER FOR SUCH TRANSFER TO COMPLY WITH THE ACT.
THE SHARES EVIDENCED HEREBY ARE SUBJECT TO A LOCK-UP PERIOD AS
DESCRIBED IN THAT CERTAIN REGISTRATION RIGHTS AGREEMENT
ENTERED INTO BY THE ISSUER AND THE HOLDER (A COPY OF WHICH MAY
BE OBTAINED FROM THE ISSUER).
(b) STOP TRANSFER INSTRUCTIONS. In order to ensure
compliance with the restrictions referred to herein, each Holder agrees that
the Company may issue appropriate "stop transfer" certificates or instructions
and that, if the Company transfers its own securities, it may make appropriate
notations to the same effect in its records.
(c) LEGENDING. Each certificate evidencing Registrable
Securities shall not bear the legend set forth in Section 2(a) if in the
opinion of counsel for a Holder and counsel for the Company such legend is not
required in order to establish compliance with any provision of the Securities
Act.
(d) RESTRICTIONS ON TRANSFER. Notwithstanding any other
provision of this Agreement, no Transfer may be made of any Registrable
Securities to a shareholder of Xxxxxx as described in Section 6(a) unless the
Transfer complies in all respects with applicable federal and state securities
laws, including the Securities Act and any "blue sky" laws. If reasonably
requested by the Company, in its sole discretion, Xxxxxx shall also provide, at
Xxxxxx'x expense, a written opinion of legal counsel who shall be, and whose
legal opinion shall be, reasonably satisfactory to the Company, addressed to
the Company, to the effect that the proposed transfer of the Registrable
Securities may be effected without registration under the Securities Act,
whereupon Xxxxxx shall be entitled to Transfer all or a portion of its
Registrable Securities to such shareholder, subject to and in compliance with
the other provisions of this Agreement.
3. GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT.
(a) GRANT OF RIGHTS. The Company hereby grants registration
rights to the Holders upon the terms and conditions set forth in this
Agreement.
(b) REGISTRABLE SECURITIES. For the purposes of this
Agreement, Registrable Securities will cease to be Registrable Securities when
(i) a Registration Statement covering such Registrable Securities has been
declared effective under the Securities Act by the Commission and such
Registrable Securities have been disposed of pursuant to such effective
Registration Statement, (ii) (x) the entire amount of the Registrable
Securities owned by the Holder thereof may be sold in a single sale, in the
opinion of counsel satisfactory to the Company and such Holder, each in their
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reasonable judgment, without any limitation as to volume pursuant to Rule 144
under the Securities Act and (y) such Holder owns less than 1.0% of the
outstanding shares of Common Stock on a fully diluted basis, or (iii) the
Registrable Securities are proposed to be sold or distributed by a Person not
entitled to the registration rights granted by this Agreement.
(c) HOLDERS OF REGISTRABLE SECURITIES. A Person is deemed
to be a holder of Registrable Securities whenever such Person owns of record
Registrable Securities, or holds an option to purchase, or a security
convertible into, or exercisable or exchangeable for, Registrable Securities
whether or not such purchase, conversion, exercise or exchange has actually
been effected. If the Company receives conflicting instructions, notices or
elections from two or more Persons with respect to the same Registrable
Securities, the Company may act upon the basis of the instructions, notice or
election received from the registered owner of such Registrable Securities.
Registrable Securities issuable upon exercise of an option or upon conversion,
exercise or exchange of another security shall be deemed outstanding for the
purposes of this Agreement.
4. SHELF REGISTRATION.
(a) FILING OF SHELF REGISTRATION. Within 45 days following
the date hereof, the Company shall file a Registration Statement on an
appropriate form (the "SHELF REGISTRATION") registering the sale of all of the
Registrable Securities offering on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act. The Company shall use its reasonable efforts
to cause such Registration Statement filed pursuant to this Section 4(a) to be
declared effective as soon as practicable, and remain effective until there are
no longer any Registrable Securities.
(b) UNDERWRITING PROCEDURES. Upon the written request of
the Majority Holders, the Company shall use its reasonable efforts to cause the
sale of Registrable Securities that such Majority Holders wish to be sold to be
in the form of a firm commitment underwritten offering (unless otherwise
consented to by such Majority Holders) if the anticipated aggregate offering
price (calculated based upon the Market Price of the Registrable Securities on
the date of such written request and including any Registrable Securities
subject to any applicable over-allotment option) to the public equals or
exceeds $7,500,000 (including causing to be produced and filed any necessary
Prospectuses or Prospectus supplements with respect to such offering). The
managing underwriter or underwriters selected for such offering shall be
selected by the Company and shall be reasonably acceptable to such Majority
Holders (an "APPROVED UNDERWRITER"). In no event shall the Holders be entitled
to request more than one underwritten public offering.
(c) EXPENSES. The Company shall bear all Registration
Expenses in connection with the Shelf Registration pursuant to this Section 4.
(d) FORM S-3. If the Company is eligible to use Form S-3
for secondary offerings of Registrable Class Securities, the Shelf Registration
shall be on Form S-3.
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5. INCIDENTAL OR "PIGGY-BACK" REGISTRATION.
(a) REQUEST FOR INCIDENTAL OR "PIGGY-BACK" REGISTRATION. If
the Company proposes to file a Registration Statement with respect to an
offering by the Company of equity securities for its own account (other than a
Registration Statement on Form S-4 or S-8 or a Registration Statement
registering the issuance of equity securities as consideration in an
acquisition transaction) or for the account of any stockholder of the Company
other than the Holders, then the Company shall give written notice (the
"SECTION 5(A) NOTICE") of such proposed filing to the Holders at least 10 days
before the anticipated filing date, and such notice shall describe the proposed
registration, offering price (or reasonable range thereof) and distribution
arrangements, and offer the Holders the opportunity to register the number of
Registrable Securities as the Holders may request (an "INCIDENTAL
REGISTRATION"). The Company shall use commercially reasonable efforts to cause
the managing underwriter or underwriters in the case of a proposed underwritten
offering (the "COMPANY UNDERWRITER") to permit the Holders to include the
number of the Holders' Registrable Securities specified by the Holders in such
offering on the same terms and conditions as the securities of the Company or
for the account of such other stockholder, as the case may be, included
therein. In connection with any Incidental Registration under this Section 5(a)
involving an underwritten offering, the Company shall not be required to
include any Registrable Securities in such underwritten offering unless the
Holder thereof accepts the terms of the underwritten offering as agreed upon
between the Company, such other stockholders, if any, and the Company
Underwriter, and then only in such quantity as the Company Underwriter believes
will not jeopardize the success of the offering by the Company. If the Company
Underwriter determines that the registration of all or part of the Registrable
Securities which the Holders have requested to be included would materially
adversely affect the success of such offering, then the Company shall include
in such Incidental Registration only the aggregate amount of Registrable
Securities that the Company Underwriter believes may be sold without any such
material adverse effect and shall reduce the amount of Registrable Securities
to be included in such registration, (i) in the case of an offering by the
Company for its own account, FIRST, as to the Registrable Securities to be
offered for the account of the Holders pursuant to this Section 5(a); SECOND,
as to the securities requested to be included in such offering by stockholders
other than the Holders; and THIRD, as to all of the securities to be offered
for the account of the Company, and (ii) in the case of an offering by the
Company for the account of any stockholder of the Company other than the
Holders, FIRST, as to the Registrable Securities to be offered for the account
of the Holders pursuant to this Section 5(a); SECOND, as to the securities to
be offered for the account of the Company; THIRD, as to the securities
requested to be included in such offering by stockholders other than the
Holders who have incidental or "piggy-back" registration rights with respect
thereto; and FOURTH, as to the securities to be offered for the account of
stockholders who made the initial request for registration.
(b) EXPENSES. The Company shall bear all Registration
Expenses in connection with any Incidental Registration pursuant to this
Section 5, whether or not such Incidental Registration becomes effective.
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(c) CONFIDENTIALITY.
(i) The following shall be deemed to be "OFFERING
CONFIDENTIAL INFORMATION": (1) the Company's plan to file the relevant
Registration Statement and engage in the offering so registered, (2) any
information regarding the offering being registered (including, without
limitation, the potential timing, price, number of shares, underwriters or
other counterparties, selling stockholders or plan of distribution) and (3) any
other information (including information contained in draft supplements or
amendments to offering materials) provided to the Holders by the Company (or by
third parties) in connection with the Incidental Registration. Offering
Confidential Information shall not include information that (x) was or becomes
generally available to the public (including as a result of the filing of the
relevant Registration Statement) other than as a result of a disclosure by any
Holder, (y) was or becomes available to any Holder from a source not known to
such Holder to be bound by any confidentiality agreement or (z) was otherwise
in any Holder's possession prior to it being furnished to such Holder by the
Company or on the Company's behalf. Information shall cease to be Offering
Confidential Information upon the earliest to occur of (X) the completion of
the relevant offering and (Y) if the relevant Registration Statement has not
been filed, 30 days after the intended filing date set forth in the Section
5(a) Notice.
(ii) After a Holder has been notified of its
opportunity to include securities in an Incidental Registration, such Holder
shall treat the Offering Confidential Information as confidential information
and shall not use the Offering Confidential Information for any purpose other
than to evaluate whether to include its Registrable Securities in such
Incidental Registration and agrees to disclose the Offering Confidential
Information only to such of its agents, employees, advisors and counsel as have
a need to know such Offering Confidential Information and to cause such agents,
employees, advisors and counsel to comply with the requirements of this Section
5(c); PROVIDED that such Holder may disclose Offering Confidential Information
if it determines, in good faith and upon the advice of counsel, that such
disclosure is required under applicable law or legal process, BUT such Holder
shall cooperate with the Company to limit the extent of such disclosure through
protective order or otherwise, and to seek confidential treatment of the
Offering Confidential Information.
6. RESTRICTIONS ON TRANSFER.
(a) LOCK-UP. Without the prior written consent of the
Company, Xxxxxx shall not, directly or indirectly, (i) Transfer, contract to
Transfer or otherwise dispose of (or enter into any transaction or device that
is designed to, or could be expected to, result in the disposition by any
Person at any time in the future of) any Registrable Securities, (ii) enter
into any Hedging Transaction with respect to the Registrable Securities or
(iii) publicly announce its intention to consummate a transaction described in
clause (i) or (ii) above, in the case of each of clauses (i), (ii) and (iii),
whether any such transaction is to be settled by delivery of Registrable
Securities or other securities, in cash or otherwise, for a period of 30 months
after the date hereof (the "LOCK-UP PERIOD"); except that, notwithstanding the
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foregoing, (1) each Holder may sell (x) in the aggregate, up to 33% of the
Registrable Securities held by such Holder as of the date hereof (or, if later,
the date such Holder acquired its Registrable Securities) during the period
beginning on the first day of the seventh month and ending on the final day of
the 18th month of the Lock-Up Period and (y) in the aggregate, up to 66% of the
Registrable Securities held by such Holder as of the date hereof (or if later,
the date such Holder acquired its Registrable Securities) beginning on the
first day of the 19th month and ending on the final day of the 30th month of
the Lock-Up Period and (2) at any time and from time to time after the date
hereof, Xxxxxx may transfer any portion of the Registrable Securities it holds
as of the date hereof to (A) any of its employees as stock bonus compensation
for services rendered by such employees or (B) a shareholder of Xxxxxx in
satisfaction of any liabilities owed by Xxxxxx to such shareholder (but in any
event subject to Section 2(d)) (each, a "PERMITTED TRANSFEREE").
(b) HOLDER LOCK-UP AGREEMENTS. In connection with an
underwritten public offering of Registrable Securities, Registrable Class
Securities or other securities convertible into, exercisable for or
exchangeable for Registrable Class Securities, to the extent requested (i) by
the Company (so long as all of the Company's officers and directors execute
agreements identical to or more restrictive than those referred to in this
Section 6(b) and the Company has used all reasonable efforts to cause all
holders of more than 5% of its outstanding capital stock, other than the
Holders, to execute such agreements) or (ii) by the Approved Underwriters or
the Company Underwriter, as applicable, each Holder shall (x) not effect any
Transfer of any Registrable Class Securities or any securities convertible into
or exchangeable or exercisable for such Registrable Class Securities and (y)
not make any request for the registration of the Transfer of any Registrable
Class Securities or any securities convertible into or exchangeable or
exercisable for such Registrable Class Securities, in each case, during the
period beginning on the date of the underwriting agreement relating to such
public offering and ending on the date that is 90 days after such date (or such
shorter period, if any, mutually agreed upon by such Holder and the requesting
party), except as part of such public offering. Upon request by the Company,
each Holder shall enter into customary lock-up agreements (the "LOCK-UP
AGREEMENTS") on terms consistent with the preceding sentence.
(c) COMPANY LOCK-UP AGREEMENTS. With respect to any
offering of Registrable Securities that takes the form of an underwritten
public offering registered on the Shelf Registration, the Company shall not
(except as part of such offering) effect any Transfer of Registrable Class
Securities, or any securities convertible into or exchangeable or exercisable
for such Registrable Class Securities (except pursuant to a Registration
Statement on Form S-8), during the period beginning on the date of the
underwriting agreement relating to such public offering and ending on the date
that is 90 days after such date, except as part of such offering. Upon request
by the Approved Underwriters, the Company shall, from time to time, enter into
Lock-Up Agreements on terms consistent with the preceding sentence.
(d) THIRD PARTY BENEFICIARIES OF LOCK-UP AGREEMENTS. Any
Lock-Up Agreements executed by the Holders pursuant to this Section 6 shall
contain provisions naming the Company as an intended third-party beneficiary
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thereof and requiring the prior written consent of the Company for any
amendments thereto or waivers thereof. Any Lock-Up Agreements executed by the
Company, or its officers, directors or other stockholders pursuant to this
Section 6 shall contain provisions naming each Holder, if it is a selling
stockholder in the relevant offering, as intended third party beneficiaries
thereof and requiring the prior written consent of such Holder for any
amendments thereto or waivers thereof.
(e) FURTHER ACTIONS. In furtherance of the foregoing, the
Company and its transfer agent are hereby authorized to decline to make any
transfer of securities if such transfer would constitute a violation or breach
of this Section 6.
7. REGISTRATION PROCEDURES.
(a) OBLIGATIONS OF THE COMPANY. In connection with the
filing of the Shelf Registration pursuant to Section 4 or the Incidental
Registration pursuant to Section 5, the Company shall use its reasonable
efforts to effect the registration and sale of the Registrable Securities in
accordance with the intended method of distribution thereof as quickly as
practicable, and in connection with any such request or requirement, the
Company shall:
(i) as expeditiously as possible, prepare and file
with the Commission a Registration Statement on any form (subject to Section
4(d)) for which the Company then qualifies or which counsel for the Company
shall deem appropriate and which form shall be available for the sale of such
Registrable Securities in accordance with the intended method of distribution
thereof, and cause such Registration Statement to become effective; PROVIDED,
HOWEVER, that (x) before filing a Registration Statement or Prospectus or any
amendments or supplements thereto (including any documents incorporated by
reference therein), the Company shall provide counsel selected by the Majority
Holders ("HOLDERS' COUNSEL") and any other Inspector with an adequate and
appropriate opportunity to review and comment on such Registration Statement,
each Prospectus included therein (and each amendment or supplement thereto),
subject to such documents being under the Company's control, and (y) the
Company shall notify the Holders' Counsel and each seller of Registrable
Securities pursuant to such Registration Statement of any stop order issued or
threatened by the Commission and take all actions required to prevent the entry
of such stop order or to remove it if entered;
(ii) as expeditiously as possible, prepare and file
with the Commission such amendments and supplements to such Registration
Statement and the Prospectus used in connection therewith as may be necessary
to keep such Registration Statement effective (1) in the case of a Shelf
Registration, for the period required under Section 4(a), and (2) in the case
of an Incidental Registration, for the lesser of (x) 90 days and (y) such
shorter period which will terminate when all Registrable Securities covered by
such Registration Statement have been sold, and shall comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
12
accordance with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement;
(iii) as expeditiously as possible, furnish to each
seller of Registrable Securities, prior to filing a Registration Statement, at
least one copy of such Registration Statement as it is proposed to be filed,
and thereafter such number of copies of such Registration Statement, each
amendment and supplement thereto (in each case including all exhibits thereto),
the Prospectus included in such Registration Statement (including each
preliminary Prospectus), any Prospectus filed pursuant to Rule 424 under the
Securities Act and any Free Writing Prospectus as each such seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
(iv) as expeditiously as possible, register or
qualify such Registrable Securities under such other securities or "blue sky"
laws of such jurisdictions as any seller of Registrable Securities may request,
and to continue such registration or qualification in effect in such
jurisdiction for as long as permissible pursuant to the laws of such
jurisdiction, or for as long as any such seller requests or until all of such
Registrable Securities are sold, whichever is shortest, and do any and all
other acts and things which may be reasonably necessary or advisable to enable
any such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller; PROVIDED, HOWEVER, that the
Company shall not be required to (x) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 7(a)(iv), (y) subject itself to taxation in any such jurisdiction or
(z) consent to general service of process in any such jurisdiction;
(v) as expeditiously as possible, notify each
seller of Registrable Securities: (A) when a Prospectus, any Prospectus
supplement, any Free Writing Prospectus, a Registration Statement or a
post-effective amendment to a Registration Statement has been filed with the
Commission, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective; (B) of any request by the
Commission or any other federal or state governmental authority for amendments
or supplements to a Registration Statement or related Prospectus or Free
Writing Prospectus or for additional information; (C) of the issuance by the
Commission or any other federal or state governmental authority of any stop
order suspending the effectiveness of a Registration Statement or the
initiation or threatening of any proceedings for that purpose; (D) of the
receipt by the Company of any notification with respect to the suspension of
the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceedings for such purpose; (E) of the existence of any fact or happening of
any event of which the Company has knowledge which makes any statement of a
material fact in such Registration Statement, related Prospectus or Free
Writing Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue or which would require the making of any changes in
the Registration Statement, related Prospectus or Free Writing Prospectus in
order that, in the case of the Registration Statement, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
13
misleading, and that in the case of such Prospectus or Free Writing Prospectus,
it will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; and (F) of the determination by counsel of the Company that a
post-effective amendment to a Registration Statement is advisable;
(vi) as expeditiously as possible, upon the
occurrence of any event contemplated by Section 7(a)(v)(E), as promptly as
practicable, prepare a supplement or amendment to such Registration Statement,
related Prospectus or Free Writing Prospectus (or file a new Registration
Statement, in the case of a Registration Statement that has been withdrawn) and
furnish to each seller of Registrable Securities a reasonable number of copies
of such supplement to or an amendment of such Registration Statement or new
Registration Statement, Prospectus or Free Writing Prospectus as may be
necessary so that, after delivery to the purchasers of such Registrable
Securities, in the case of the Registration Statement, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, and that in the case of such Prospectus or Free Writing Prospectus,
it will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(vii) with respect to any underwritten public
offering registered under the Shelf Registration or the Incidental Registration
(in the case of an Incidental Registration, only to the extent requested by the
Company Underwriter), enter into and perform customary agreements (including
underwriting and indemnification and contribution agreements in customary form
with the Approved Underwriters or the Company Underwriter, as applicable) and
take such other commercially reasonable actions as are required in order to
expedite or facilitate each disposition of Registrable Securities and shall
provide all reasonable cooperation, including causing appropriate officers to
attend and participate in "road shows" and other information meetings organized
by the Approved Underwriters or the Company Underwriter, if applicable, and
causing counsel to the Company to deliver customary legal opinions in
connection with any such underwriting agreements;
(viii) with respect to any underwritten public
offering registered under the Shelf Registration or the Incidental
Registration, make available at reasonable times for inspection by any seller
of Registrable Securities, any managing underwriter participating in any
disposition of such Registrable Securities pursuant to a Registration
Statement, Holders' Counsel and any attorney, accountant or other agent
retained by any such seller (collectively, the "INSPECTORS"), all financial and
other records, pertinent corporate documents and properties of the Company and
its subsidiaries (collectively, the "RECORDS") as shall be reasonably necessary
to enable them to exercise their due diligence responsibility, and cause the
Company's and its subsidiaries' officers, directors and employees, and the
independent public accountants of the Company, to supply all information
reasonably requested by any such Inspector in connection with such Registration
14
Statement. Records that the Company determines, in good faith, to be
confidential and which it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors (and the Inspectors shall confirm their agreement
in writing in advance to the Company if the Company shall so request) unless
(x) the disclosure of such Records is necessary, in the Company's judgment, to
avoid or correct a misstatement or omission in the Registration Statement, (y)
the release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction after exhaustion of all appeals
therefrom or (z) the information in such Records was known to the Inspectors on
a non-confidential basis prior to its disclosure by the Company or has been
made generally available to the public. Each seller of Registrable Securities
agrees that it shall, upon learning that disclosure of such Records is sought
in a court of competent jurisdiction, give notice to the Company and allow the
Company, at the Company's expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
(ix) with respect to any underwritten public
offering registered under the Shelf Registration or the Incidental
Registration, obtain a "cold comfort" letter dated the effective date of the
Registration Statement and the date of the closing under the underwriting
agreement from the Company's independent public accountants in customary form
and covering such matters of the type customarily covered by "cold comfort"
letters as Holders' Counsel or the managing underwriter reasonably requests;
(x) with respect to any underwritten public
offering registered under the Shelf Registration or the Incidental
Registration, furnish, at the request of any seller of Registrable Securities
on the date such securities are delivered to the underwriters for sale pursuant
to such registration, an opinion, dated such date, of counsel representing the
Company for the purposes of such registration, addressed to the underwriters,
covering such legal matters with respect to the registration in respect of
which such opinion is being given as the underwriters, may reasonably request
and are customarily included in such opinions;
(xi) with respect to each Free Writing Prospectus or
other materials to be included in the Disclosure Package, ensure that no
Registrable Securities be sold "by means of" (as defined in Rule 159A(b) under
the Securities Act) such Free Writing Prospectus or other materials without the
prior written consent of the Holders holding a majority of the Registrable
Securities proposed to be sold in the relevant offering, which Free Writing
Prospectuses or other materials shall be subject to the review of the Holders'
Counsel;
(xii) as expeditiously as possible and within the
deadlines specified by the Securities Act, make all required filings of all
Prospectuses and Free Writing Prospectuses with the Commission;
(xiii) as expeditiously as possible and within the
deadlines specified by the Securities Act, make all required filing fee
15
payments in respect of any Registration Statement or Prospectus used under this
Agreement (and any offering covered thereby);
(xiv) comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as
soon as reasonably practicable but no later than 15 months after the effective
date of the Registration Statement, an earnings statement covering a period of
12 months beginning after the effective date of the Registration Statement, in
a manner which satisfies the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder;
(xv) cause all Registrable Securities to be listed
on each securities exchange on which Registrable Class Securities issued by the
Company are then listed, PROVIDED that the applicable listing requirements are
satisfied;
(xvi) as expeditiously as practicable, keep the
Holders' Counsel advised in writing as to the initiation and progress of any
Shelf Registration or Incidental Registration, and provide the Holders' Counsel
with all correspondence with the Commission in connection with any such
Registration Statement; (xvii) cooperate with each seller of Registrable
Securities and each underwriter participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD; and
(xviii) take all other steps reasonably necessary to
effect the registration and disposition of the Registrable Securities
contemplated hereby.
(b) SELLER OBLIGATIONS. In connection with any offering
under any Registration Statement under this Agreement, each Holder:
(i) shall promptly furnish to the Company in
writing such information with respect to such Holder and the intended method of
disposition of its Registrable Securities as the Company may reasonably request
or as may be required by law for use in connection with any related
Registration Statement or Prospectus (or amendment or supplement thereto) and
all information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not contain a material
misstatement of fact or necessary to cause such Registration Statement or
Prospectus (or amendment or supplement thereto) not to omit a material fact
with respect to such Holder necessary in order to make the statements therein
not misleading;
(ii) shall comply with the Securities Act and the
Exchange Act and all applicable state securities laws and comply with all
applicable regulations in connection with the registration and the disposition
of the Registrable Securities; and
(iii) shall not use any Free Writing Prospectus
without the prior written consent of the Company.
16
(c) NOTICE TO DISCONTINUE. Each Holder agrees that, upon
receipt of any notice from the Company of the happening of any event of the
kind described in Section 7(a)(v)(E), such Holder shall forthwith discontinue
disposition of Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended Prospectus or Free Writing Prospectus
contemplated by Section 7(a)(vi) and, if so directed by the Company, such
Holder shall deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's possession, of the
Prospectus or Free Writing Prospectus covering such Registrable Securities
which is current at the time of receipt of such notice. If the Company shall
give any such notice, the Company shall extend the period during which such
Registration Statement shall be maintained effective pursuant to this Agreement
(including the period referred to in Section 7(a)(ii)) by the number of days
during the period from and including the date of the giving of such notice
pursuant to Section 7(a)(v)(E) to and including the date when sellers of such
Registrable Securities under such Registration Statement shall have received
the copies of the supplemented or amended Prospectus or Free Writing Prospectus
contemplated by and meeting the requirements of Section 7(a)(v).
(d) VALID BUSINESS REASON. If the Board of Directors, in
its good faith judgment, determines that any registration of Registrable
Securities should not be made or continued because it would materially
interfere with any material financing, acquisition, corporate reorganization or
merger or other material transaction involving the Company (a "VALID BUSINESS
REASON"), (i) the Company may postpone filing a Registration Statement relating
to a Shelf Registration until such Valid Business Reason no longer exists and
(ii) in case a Registration Statement has been filed relating to an Shelf
Registration, if the Valid Business Reason has not resulted from actions taken
by the Company, the Company, upon the approval of a majority of the Board of
Directors, may cause such Registration Statement to be withdrawn and its
effectiveness terminated or may postpone amending or supplementing such
Registration Statement or may suspend other required registration actions under
this Agreement. The Company shall give written notice to each Holder of its
determination to postpone or withdraw a Registration Statement and of the fact
that the Valid Business Reason for such postponement or withdrawal no longer
exists, in each case, promptly after the occurrence thereof. Notwithstanding
anything to the contrary contained herein, the Company may not postpone or
withdraw a filing due to a Valid Business Reason under this Section 7(d) for
more than a period of up to 30 days in any individual instance or 90 days, in
the aggregate, in any 12-month period.
(e) REGISTRATION EXPENSES. The Company shall pay all
expenses arising from or incident to its performance of, or compliance with,
this Agreement, including (i) Commission, stock exchange and NASD registration
and filing fees, (ii) all fees and expenses incurred in complying with
securities or "blue sky" laws (including reasonable fees, charges and
disbursements of counsel to any underwriter incurred in connection with "blue
sky" qualifications of the Registrable Securities as may be set forth in any
underwriting agreement), (iii) all printing, messenger and delivery expenses,
(iv) the fees, charges and expenses of the Holders' Counsel, any necessary
17
counsel with respect to state securities law matters, counsel to the Company
and of its independent public accountants, and any other accounting fees,
charges and expenses incurred by the Company (including any expenses arising
from any "cold comfort" letters or any special audits incident to or required
by any registration or qualification), and (v) any liability insurance or other
premiums for insurance obtained in connection with the Shelf Registration or
the Incidental Registration pursuant to the terms of this Agreement, regardless
of whether such Registration Statement is declared effective. All of the
expenses described in the preceding sentence of this Section 7(e) are referred
to herein as "REGISTRATION EXPENSES." Each Holder shall bear the expense of any
broker's commission or underwriter's discount or commission relating to the
registration and sale of such Holder's Registrable Securities and, subject to
clause (iv) above, shall bear the fees and expenses of its own counsel.
8. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify and hold harmless each Holder, its directors, officers, Affiliates
and each Person who controls (within the meaning of Section 15 of the
Securities Act) such Holder from and against any and all losses, claims,
damages, liabilities and expenses, or any action or proceeding in respect
thereof (including reasonable costs of investigation and reasonable attorneys'
fees and expenses) (each, a "LIABILITY" and collectively, "LIABILITIES")
arising out of or based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Disclosure Package, the
Registration Statement, the Prospectus, any Free Writing Prospectus or in any
amendment or supplement thereto; and (ii) the omission or alleged omission to
state in the Disclosure Package, Registration Statement, the Prospectus, any
Free Writing Prospectus or in any amendment or supplement thereto any material
fact required to be stated therein or necessary to make the statements therein
not misleading; PROVIDED, HOWEVER, that the Company shall not be liable in any
such case to the extent, but only to the extent, that any such Liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such Disclosure Package, Registration
Statement, Prospectus or Free Writing Prospectus or preliminary prospectus or
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Holder (including
the information provided pursuant to Section 8(b)).
(b) INDEMNIFICATION BY THE HOLDERS. Each Holder shall,
severally, but not jointly, indemnify and hold harmless the Company, any
underwriter retained by the Company, their respective directors, officers,
other Affiliates and each Person who controls the Company or such underwriter
(within the meaning of Section 15 of the Securities Act) from and against any
and all Liabilities arising out of or based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Disclosure
Package, the Registration Statement, the Prospectus, any Free Writing
Prospectus or in any amendment or supplement thereto; and (ii) the omission or
alleged omission to state in the Disclosure Package, the Registration
Statement, the Prospectus, any Free Writing Prospectus or in any amendment or
18
supplement thereto any material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case, to the extent such
Liabilities arise out of or are based upon written information furnished by
such Holder or on such Holder's behalf specifically for inclusion in the
Disclosure Package, the Registration Statement, the Prospectus, any Free
Writing Prospectus or any amendment or supplement thereto relating to the
Registrable Securities as provided in, including the information furnished to
the Company pursuant to this Section 8(b); PROVIDED, HOWEVER, that the total
amount to be indemnified by any Holder pursuant to this Section 8(b) shall be
limited to the net proceeds (after deducting the underwriters' discounts and
commissions) received by such Holder in the offering to which the Disclosure
Package, Registration Statement, Prospectus or Free Writing Prospectus relates.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person
entitled to indemnification hereunder (the "INDEMNIFIED PARTY") shall give
prompt written notice to the indemnifying party (the "INDEMNIFYING Party")
after the receipt by the Indemnified Party of any written notice of the
commencement of any action, suit, proceeding or investigation or threat thereof
made in writing for which the Indemnified Party intends to claim
indemnification or contribution pursuant to this Agreement; PROVIDED, HOWEVER,
that the failure to so notify the Indemnifying Party shall not relieve the
Indemnifying Party of any Liability that it may have to the Indemnified Party
hereunder (except to the extent that the Indemnifying Party forfeits
substantive rights or defenses by reason of such failure). If notice of
commencement of any such action is given to the Indemnifying Party as above
provided, the Indemnifying Party shall be entitled to participate in and, to
the extent it may wish, jointly with any other Indemnifying Party similarly
notified, to assume the defense of such action at its own expense, with counsel
chosen by it and reasonably satisfactory to such Indemnified Party. The
Indemnified Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of
such counsel shall be paid by the Indemnified Party unless (i) the Indemnifying
Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the
defense of such action with counsel reasonably satisfactory to the Indemnified
Party or (iii) the named parties to any such action (including any impleaded
parties) include both the Indemnifying Party and the Indemnified Party and such
parties have been advised by such counsel that either (x) representation of
such Indemnified Party and the Indemnifying Party by the same counsel would be
inappropriate under applicable standards of professional conduct or (y) there
may be one or more legal defenses available to the Indemnified Party which are
different from or additional to those available to the Indemnifying Party. In
any of such cases, the Indemnifying Party shall not have the right to assume
the defense of such action on behalf of such Indemnified Party; it being
understood, however, that the Indemnifying Party shall not be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) for all Indemnified Parties. No Indemnifying Party shall be
liable for any settlement entered into without its written consent, which
consent shall not be unreasonably withheld. No Indemnifying Party shall,
without the written consent of such Indemnified Party, effect any settlement of
any pending or threatened proceeding in respect of which such Indemnified Party
is a party and indemnity has been sought hereunder by such Indemnified Party,
19
unless such settlement includes an unconditional release of such Indemnified
Party from all liability for claims that are the subject matter of such
proceeding.
(d) CONTRIBUTION. If the indemnification provided for in
this Section 8 from the Indemnifying Party is unavailable to an Indemnified
Party hereunder in respect of any Liabilities referred to herein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such Liabilities in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions which resulted in such Liabilities, as well as any other
relevant equitable considerations. The relative faults of such Indemnifying
Party and Indemnified Party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party as a result of the Liabilities
referred to above shall be deemed to include, subject to the limitations set
forth in Sections 8(a) and 8(b), any legal or other fees, charges or expenses
reasonably incurred by such party in connection with any investigation or
proceeding; PROVIDED, that the total amount to be contributed by any Holder
shall be limited to the net proceeds (after deducting the underwriters'
discounts and commissions) received by such Holder in the relevant offering.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding sentences
of this Section 8(d). 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.
9. EXCHANGE ACT REPORTING AND RULE 144. The Company covenants that
it shall (a) file any reports required to be filed by it under the Exchange Act
and (b) take such further action as the Majority Holders may reasonably request
(including providing any information necessary to comply with Rule 144 under
the Securities Act), all to the extent required from time to time to enable the
Holders to sell Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144
under the Securities Act or Regulation S under the Securities Act or (ii) any
similar rules or regulations hereafter adopted by the Commission. The Company
shall, upon the request of the Majority Holders, deliver to the Holders a
written statement as to whether it has complied with such requirements.
10. MISCELLANEOUS.
(a) ASSUMPTION OF AGREEMENT. The Company shall cause any
successor or assign (whether by merger, consolidation, sale of assets or
otherwise) to assume this Agreement or enter into a new registration rights
agreement with the Holders on terms substantially the same as this Agreement as
a condition of any such transaction.
20
(b) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless consented to in writing by the Company and the Majority
Holders.
(c) NOTICES. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be made
by registered or certified first-class mail, return receipt requested,
telecopy, electronic transmission, courier service or personal delivery:
(i) if to Xxxxxx:
Xxxxxx Yarn Corporation
00 Xxxx 00xx Xxxxxx
Xxxxxxxx, XX 00000
Attention: President
Facsimile: (000) 000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
with a copy to:
Cole, Schotz, Meisel, Xxxxxx & Xxxxxxx P.A.
00 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Facsimile: 000-000-0000
Email: xxxxxx@xxxxxxxxxx.xxx
(ii) if to the Company:
Unifi, Inc.
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. XxXxx
Facsimile: (000) 000-0000
Email: xxxxxx@xxxxx-xxx.xxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. X. Xxxx
Facsimile: (000) 000-0000
Email: xxxxx@xxxxxxxxx.xxx
21
All such notices, demands and other communications shall be deemed to have been
duly given when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial courier service; five Business Days after
being deposited in the mail, postage prepaid, if mailed; and when receipt is
acknowledged, if telecopied or electronically transmitted. Any party may by
notice given in accordance with this Section 10(c) designate another address or
Person for receipt of notices hereunder.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and permitted assigns of the
parties hereto as hereinafter provided. The rights and obligations of Xxxxxx
hereunder may not be assigned, except in writing to Permitted Transferees. At
the time of the transfer of Registrable Securities to a Permitted Transferee,
such Permitted Transferee shall execute and deliver to the Company an
instrument, in form and substance satisfactory to the Company, to evidence its
agreement to be bound by, and to comply with, this Agreement as a Holder.
(e) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) 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 the conflicts of law principles thereof that would apply the laws of
another jurisdiction.
(g) DISPUTE RESOLUTION.
(i) The parties agree that the appropriate,
exclusive and convenient forum for any disputes between the parties arising out
of this Agreement or the transactions contemplated hereby shall be in any state
or federal court in the State, City and County of New York, and each of the
parties irrevocably submits to the exclusive jurisdiction of such courts solely
in respect of any action, suit or proceeding arising out of or related to this
Agreement; PROVIDED, HOWEVER, that the foregoing shall not limit the rights of
the parties to obtain execution of judgment in any other jurisdiction. The
parties further agree, to the extent permitted by law, that a final and
unappealable judgment against a party in any action, suit or proceeding
contemplated above shall be conclusive and may be enforced in any other
jurisdiction within or outside the United States by suit on the judgment, a
certified copy of which shall be conclusive evidence of the fact and amount of
such judgment. Any and all service of process and any other notice in any such
action, suit or proceeding shall be effective against any party if given by
registered or certified mail, return receipt requested, or by any other means
of mail that requires a signed receipt, postage prepaid, mailed to such party
as herein provided.
(ii) Each party agrees not to assert, by way of
motion, as a defense or otherwise, in any such action, suit or proceeding, any
claim that it is not subject personally to the jurisdiction of such courts,
that its property is exempt or immune from attachment or execution, that the
22
action, suit or proceeding is brought in an inconvenient forum, that the venue
of the action, suit or proceeding is improper or that this Agreement or the
subject matter hereof may not be enforced in or by such court.
(iii) THE PARTIES HEREBY IRREVOCABLY WAIVE THE RIGHT
TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING TO ENFORCE OR INTERPRET THE
PROVISIONS OF THIS AGREEMENT.
(h) SEVERABILITY. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
(i) RULES OF CONSTRUCTION. Unless the context otherwise
requires, references to sections or subsections refer to sections or
subsections of this Agreement. Terms defined in the singular have a comparable
meaning when used in the plural, and vice versa.
(j) 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 with respect to the subject matter contained herein. There are no
restrictions, promises, representations, warranties or undertakings with
respect to the subject matter contained herein, other than those set forth or
referred to herein. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such subject matter.
(k) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, and all of which
shall constitute one and the same instrument.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date first above written.
UNIFI, INC.
By: /s/
------------------------------
Name:
Title:
XXXXXX YARN CORPORATION
By: /s/
------------------------------
Name:
Title:
[signature page of Registration Rights Agreement]
