REGISTRATION RIGHTS AGREEMENT BY AND BETWEEN MISCOR GROUP, LTD., TONTINE CAPITAL PARTNERS, L.P. AND TONTINE CAPITAL OVERSEAS MASTER FUND, L.P. JANUARY 18, 2007
Exhibit
10.2
EXECUTION
COPY
BY
AND BETWEEN
TONTINE
CAPITAL PARTNERS, L.P.
AND
TONTINE
CAPITAL OVERSEAS MASTER FUND, L.P.
JANUARY
18, 2007
TABLE
OF CONTENTS
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Page
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ARTICLE
1
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Definitions
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1
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ARTICLE
2
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Registration
Rights
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3
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2.1
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Current
Public Information
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3
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2.2
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Registration.
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4
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2.3
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Demand
Registration
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4
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2.4
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Piggyback
Registration.
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7
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2.5
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Underwriting;
Holdback Agreements.
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8
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2.6
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Registration
Procedures
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9
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2.7
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Conditions
Precedent to Company’s Obligations Pursuant to this
Agreement
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11
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2.8
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Fees
and Expenses
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11
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2.9
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Indemnification.
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11
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2.10
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Participation
in Registrations.
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14
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2.11
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Compliance
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15
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ARTICLE
3
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Transfers
of Certain Rights
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15
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3.1
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Transfer
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15
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3.2
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Transferees
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15
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3.3
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Subsequent
Transferees
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15
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ARTICLE
4
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Miscellaneous
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15
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4.1
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Recapitalizations,
Exchanges, etc
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15
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4.2
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No
Inconsistent Agreements
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15
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4.3
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Amendments
and Waivers
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15
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4.4
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Severability
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16
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4.5
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Counterparts
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16
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4.6
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Notices
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16
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4.7
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Governing
Law
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17
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4.8
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Forum;
Service of Process
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17
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4.9
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Captions
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17
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4.10
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No
Prejudice
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17
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4.11
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Words
in Singular and Plural Form
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17
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4.12
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Remedy
for Breach
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17
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4.13
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Successors
and Assigns, Third Party Beneficiaries
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17
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4.14
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Entire
Agreement
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18
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4.15
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Attorneys’
Fees
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18
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4.16
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Termination
of Rights
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18
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i
This
REGISTRATION RIGHTS AGREEMENT, dated as of January 18, 2007, is entered into
by
and between MISCOR GROUP, LTD., an Indiana corporation (the “Company”),
TONTINE CAPITAL PARTNERS, L.P., a Delaware limited partnership (“TCP”
or
a
“Purchaser”)
and
TONTINE CAPITAL OVERSEAS MASTER FUND, L.P., a Cayman Islands limited partnership
(a“Purchaser”
and
together with TCP, the“Purchasers”).
RECITALS:
A. The
Company desires to issue and sell 62,500,000 shares of its Common Stock to
the
Purchasers as set forth in the Securities Purchase Agreement dated as of January
18, 2007, entered into by and between the Company and the Purchasers (the
“Securities
Purchase Agreement”);
B. It
is a
condition precedent to the consummation of the transactions contemplated by
the
Securities Purchase Agreement that the Company provide for the rights set forth
in this Agreement; and
C. Certain
terms used in this Agreement are defined in Article
1
hereof.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
and agreements hereinafter contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
intending to be legally bound, the parties hereto hereby agree as
follows:
ARTICLE
1
Definitions
“Affiliate”
means
any Person that directly or indirectly controls, or is under control with,
or is
controlled by such Person. As used in this definition, “control” (including with
its correlative meanings, “controlled by” and “under common control with”) shall
mean the possession, directly or indirectly, of the power to direct or cause
the
direction of the management or policies of a Person (whether through ownership
of securities or partnership or other ownership interests, by contract or
otherwise).
“Business
Day”
means
any day excluding Saturday, Sunday or any other day which is a legal holiday
under the laws of the State of Indiana or is a day on which banking institutions
therein located are authorized or required by law or other governmental action
to close.
“Closing
Date”
has
the
meaning ascribed to such term in the Securities Purchase Agreement.
“Common
Stock”
means
the common stock, no par value per share, of the Company.
“Company”
has
the
meaning set forth in the preamble.
“Demand
Notice”
has
the
meaning set forth in Section 2.3.
“Designated
Holders”
means
the Purchasers and any qualifying transferees of the Purchasers under
Section 3.1
hereof
who hold Registrable Securities.
“Effectiveness
Date”
means
(a) with respect to the initial Registration Statement required to be filed
under Section 2.2(a),
the
earlier of: (i) the first anniversary of the Closing Date, and (ii) the fifth
trading day following the date on which the Company is notified by the SEC
that
the initial Registration Statement will not be reviewed or is no longer subject
to further review and comments, and (b) with respect to any additional
Registration Statements that may be required pursuant to Section 2.2(b),
the
earlier of (i) the 120th
day
following (x) if such Registration Statement is required because the SEC shall
have notified the Company in writing that certain Registrable Securities were
not eligible for inclusion on a previously filed Registration Statement, the
date or time on which the SEC shall indicate as being the first date or time
that such Registrable Securities may then be included in a Registration
Statement, or (y) if such Registration Statement is required for a reason other
than as described in (x) above, the date on which the Company first knows,
or
reasonably should have known, that such additional Registration Statement(s)
is
required, and (ii) the fifth trading day following the date on which the Company
is notified by the SEC that such additional Registration Statement will not
be
reviewed or is no longer subject to further review and comment.
“Effectiveness
Period”
has
the
meaning set forth in Section 2.2(a).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC promulgated thereunder.
“Filing
Date”
means
(a) with respect to the initial Registration Statement required to be filed
under Section 2.2(a),
the
date which is six months following the Closing Date, and (b) with respect to
any
additional Registration Statements that may be required pursuant to Section 2.2(b),
the
45th
day
following (x) if such Registration Statement is required because the SEC shall
have notified the Company in writing that certain Registrable Securities were
not eligible for inclusion on a previously filed Registration Statement, the
date or time on which the SEC shall indicate as being the first date or time
that such Registrable Securities may then be included in a Registration
Statement, or (y) if such Registration Statement is required for a reason other
than as described in (x) above, the date on which the Company first knows,
or
reasonably should have known, that such additional Registration Statement(s)
is
required.
“Indemnified
Party”
has
the
meaning set forth in Section 2.9.
“Losses”
has
the
meaning set forth in Section
2.9.
“Majority
Holders”
means
those Designated Holders holding a majority of the Registrable
Securities.
“Person”
means
any individual, company, partnership, firm, joint venture, association,
joint-stock company, trust, unincorporated organization, governmental body
or
other entity.
“Piggyback
Registration” has
the
meaning set forth in Section 2.4.
“Purchasers”
has
the
meaning set forth in the preamble.
“Purchase
Price”
has the
meaning ascribed to such term in the Securities Purchase Agreement.
“Registrable
Securities”
means,
subject to the immediately following sentences, (i) shares of Common Stock
acquired by the Purchasers from the Company pursuant to the Securities Purchase
Agreement or, so long as this Agreement is still in effect, any other shares
of
Common Stock acquired by the Purchasers after the Closing Date, and (ii) any
shares of Common Stock issued or issuable, directly or indirectly, with respect
to the securities referred to in clause (i) by way of stock dividend or stock
split or
2
in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. In addition, any particular shares of Common Stock
constituting Registrable Securities will cease to be Registrable Securities
when
they (x) have been effectively registered under the Securities Act and disposed
of in accordance with a Registration Statement covering them, (y) have been
sold
to the public pursuant to Rule 144 (or by similar provision under the Securities
Act), or (z) are eligible for resale under Rule 144(k) (or by similar provision
under the Securities Act) without any limitation on the amount of securities
that may be sold under paragraph (e) thereof.
“Registration
Statement”
means
a
registration statement on Form S-3 (or, if the Company is not eligible to use
Form S-3, such other appropriate registration form of the SEC pursuant to which
the Company is eligible to register the resale of Registrable Securities) filed
by the Company under the Securities Act which covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including the
prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorporated by
reference in such registration statement, which shall permit the Purchasers
to
offer and sell, on a delayed or continuous basis pursuant to Rule 415 under
the
Securities Act, the Registrable Securities.
“register,”
“registered”
and
“registration”
each
shall refer to a registration effected by preparing and filing a registration
statement or statements or similar documents in compliance with the Securities
Act and the declaration or ordering of effectiveness of such registration
statement(s) or documents by the SEC.
“Representatives”
has
the
meaning set forth in Section 2.9.
“Rule
144”
means
Rule 144 promulgated by the SEC pursuant to the Securities Act, as such Rule
may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC having substantially the same effect as such
Rule.
“Rule
415”
means
Rule 415 promulgated by the SEC pursuant to the Securities Act, as such Rule
may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC having substantially the same effect as such
Rule.
“SEC”
means
the United States Securities and Exchange Commission or any other federal agency
at the time administering the Securities Act.
“Securities
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations of the
SEC
promulgated thereunder.
“Securities
Purchase Agreement”
has
the
meaning set forth in the recitals.
ARTICLE
2
Registration
Rights
2.1 Current
Public Information.
The
Company covenants that it will use its best efforts to file all reports required
to be filed by it under the Exchange Act and the rules and regulations adopted
by the SEC thereunder, and will use its reasonable best efforts to take such
further action as the Designated Holders may reasonably request, all to the
extent required to enable the Designated Holders to sell Registrable Securities
pursuant to Rule 144 or Rule 144A adopted by the SEC under the Securities Act
or
any similar rule or regulation hereafter adopted by the SEC. The Company shall,
upon the request of a Designated Holder, deliver to such Designated Holder
a
written statement as to whether it has complied with such requirements during
the twelve month period immediately preceding the date of such
request.
3
2.2 Registration.
(a) On
or
prior to each Filing Date, the Company shall prepare and file with the SEC
a
Registration Statement covering the resale of all Registrable Securities not
already covered by an existing and effective Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415. The Registration
Statement shall provide for the resale from time to time, and pursuant to any
method or combination of methods legally available by the Designated Holders
of
any and all Registrable Securities. The Company shall use its reasonable best
efforts to cause the Registration Statement to be declared effective under
the
Securities Act as soon as possible but, in any event, no later than its
Effectiveness Date, and shall use its reasonable best efforts to keep the
Registration Statement continuously effective, supplemented and amended to
the
extent necessary to ensure that is available for the resale of all Registrable
Securities by the Designated Holders and that it conforms in all material
respects to the requirements of the Securities Act during the entire period
beginning on the Effectiveness Date and ending on the date on which all
Registrable Securities have ceased to be Registrable Securities. (the
“Effectiveness
Period”).
(b) If
for
any reason the SEC does not permit all of the Registrable Securities to be
included in a Registration Statement filed pursuant to Section 2.2(a)
or for
any other reason all Registrable Securities then outstanding are not then
included in such an effective Registration Statement, then the Company shall
prepare and file as soon as reasonably possible after the date on which the
SEC
shall indicate as being the first date or time that such filing may be made,
but
in any event by the Filing Date therefore, an additional Registration Statement
covering the resale of all Registrable Securities not already covered by an
existing and effective Registration Statement for an offering to be made on
a
continuous basis pursuant to Rule 415. Each such Registration Statement shall
provide for the resale from time to time, and pursuant to any method or
combination of methods legally available by the Designated Holders of any and
all Registrable Securities. The Company shall use its reasonable best efforts
to
cause each such Registration Statement to be declared effective under the
Securities Act as soon as possible but, in any event, no later than its
Effectiveness Date, and shall use its reasonable best efforts to keep such
Registration Statement continuously effective under the Securities Act during
the entire Effectiveness Period.
(c) The
Company may, at any time it is eligible to do so, file a post-effective
amendment on Form S-3 to any Registration Statement on Form S-1 for the resale
of any then existing Registrable Securities or in any such other manner as
is
preferred or permitted by the SEC to convert such Registration Statement to
a
Form S-3 Registration Statement. Upon the effectiveness of such Form S-3
Registration Statement, all references to a Registration Statement in this
Agreement shall then automatically be deemed to be a reference to the Form
S-3
Registration Statement.
2.3 Demand
Registration.
In
addition to the registration obligations of the Company set forth in
Section 2.2
herein,
the following provisions shall apply:
(a) Subject
to Section 2.3(i),
upon
the written request of the Majority Holders, requesting that the Company effect
the registration under the Securities Act of all or part of such Designated
Holders’ Registrable Securities and specifying the intended method of
disposition thereof (the “Demand
Notice”),
the
Company will promptly give written notice of such requested registration to
all
Designated Holders, and thereupon the Company will use its reasonable best
efforts to file with the SEC as soon as reasonably practicable following the
Demand Notice (but in no event later than the date that is 90 days after the
Demand Notice) a Registration Statement. The Company shall use its reasonable
best efforts to cause such Registration Statement to be declared effective
by
the SEC within 90 days after the initial filing of the Registration
Statement. The
Company shall include in such Registration Statement:
4
(i) the
Registrable Securities which the Company has been so requested to be registered
by such Designated Holders for disposition in accordance with the intended
method of disposition stated in such request;
(ii) all
other
Registrable Securities the holders of which shall have made a written request
to
the Company for registration thereof within 30 days after the giving of such
written notice by the Company (which request shall specify the intended method
of disposition of such Registrable Securities); and
(iii) all
shares of Common Stock which the Company or Persons entitled to exercise
“piggy-back” registration rights pursuant to contractual commitments of the
Company may elect to register in connection with the offering of Registrable
Securities pursuant to this Section 2.3;
all
to
the extent requisite to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities and the additional
shares of Common Stock, if any, so to be registered; provided, that, the
provisions of this Section 2.3
shall
not require the Company to effect more than two registrations of Registrable
Securities.
(b) Notwithstanding
anything to the contrary contained in this Agreement, the Company shall not
be
required to effect a registration pursuant to this Section 2.3
within
180 days following the effective date of a registration statement filed by
the
Company in accordance with Sections 2.2,
2.3
or
2.4
for the
account of another Designated Holder of Registrable Securities if the Designated
Holders were afforded the opportunity to include the Registrable Securities
in
such registration.
(c) The
registrations under this Section 2.3
shall be
on an appropriate Registration Statement that permits the disposition of such
Registrable Securities in accordance with the intended methods of distribution
specified by the Majority Holders in their request for registration. The Company
agrees to include in any such Registration Statement all information which
Designated Holders of Registrable Securities being registered shall reasonably
request to effect the registration.
(d) A
registration requested pursuant to this Section 2.3
shall
not be deemed to have been effected (i) unless a Registration Statement with
respect thereto has become effective; provided, that a Registration Statement
which does not become effective after the Company has filed a Registration
Statement with respect thereto solely by reason of the refusal to proceed of
the
Majority Holders (other than a refusal to proceed based upon the advice of
counsel relating to a matter with respect to the Company) or because of a breach
of this Agreement by any Designated Holder shall be deemed to have been effected
by the Company at the request of the Majority Holders unless the Designated
Holders electing to have Registrable Securities registered pursuant to such
Registration Statement shall have elected to pay all fees and expenses otherwise
payable by the Company in connection with such registration pursuant to
Section 2.8,
(ii)
if, after it has become effective, such registration is withdrawn by the Company
(other than at the request of the Majority Holders) or interfered with by any
stop order, injunction or other order or requirement of the SEC or other
governmental agency or court for any reason prior to the expiration of a 180
day
period following such Registration Statement’s effectiveness, or (iii) if the
conditions to closing specified in any purchase agreement or underwriting
agreement entered into in connection with such registration are not satisfied,
other than due solely to some act or omission by the Designated Holders electing
to have Registrable Securities registered pursuant to such Registration
Statement.
(e) Intentionally
Omitted.
5
(f) If
a
requested registration pursuant to this Section 2.3
involves
an underwritten offering, and the managing underwriter shall advise the Company
in writing (with a copy to each Designated Holder of Registrable Securities
requesting registration) that, in its opinion, the number of securities
requested to be included in such registration (including securities of the
Company which are not Registrable Securities) exceeds the number which can
be
sold in such offering within a price range reasonably acceptable to the Company
and to the holders of a majority (by number of shares) of the Registrable
Securities requested to be included in such Registration Statement, the Company
will include in such registration, to the extent of the number which the Company
is so advised can be sold in such offering, (i) first, the Registrable
Securities which have been requested to be included in such registration by
the
Designated Holders pursuant to this Agreement (pro rata based on the amount
of
Registrable Securities sought to be registered by such Persons), (ii) second,
provided that no securities sought to be included by the Designated Holders
have
been excluded from such registration, the securities of other Persons entitled
to exercise “piggy-back” registration rights pursuant to contractual commitments
of the Company (pro rata based on the amount of securities sought to be
registered by such Persons) and (iii) third, securities the Company proposes
to
register.
(g) The
Company shall use its reasonable best efforts to keep any Registration Statement
filed pursuant to this Section 2.3
continuously effective (i) for a period of two years after the Registration
Statement first becomes effective, plus the number of days during which such
Registration Statement was not effective or usable pursuant to Sections 2.6(e)
or
2.6(i);
or (ii)
if such Registration Statement related to an underwritten offering, for such
period as in the opinion of counsel for the underwriters a prospectus is
required by law to be delivered in connection with sales of Registrable
Securities by an underwriter or dealer. In the event the Company shall give
any
notice pursuant to Sections 2.6(e)
or
(i),
the
additional time period mentioned in Section 2.3(f)(i)
during
which the Registration Statement is to remain effective shall be extended by
the
number of days during the period from and including the date of the giving
of
such notice pursuant to Sections 2.6(e)
or
(i)
to and
including the date when each seller of a Registrable Security covered by the
Registration Statement shall have received the copies of the supplemented or
amended prospectus contemplated by Sections 2.6(e)
or
(i).
(h) The
Company shall have the right at any time, to suspend the filing of a
Registration Statement under this Section 2.3
or
require that the Designated Holders of Registrable Securities suspend further
open market offers and sales of Registrable Securities pursuant to a
Registration Statement filed hereunder for a period not to exceed an aggregate
of 30 days in any six month period or an aggregate of 60 days in any
twelve-month period for valid business reasons (not including avoidance of
their
obligations hereunder) (i) to avoid premature public disclosure of a pending
corporate transaction, including pending acquisitions or divestitures of assets,
mergers and combinations and similar events; (ii) upon the occurrence of any
of
the events specified in Section 2.6(e),
until
the time that the Designated Holders receive copies of a supplement or amendment
to the prospectus included in the applicable Registration Statement as
contemplated in Section 2.6(e);
and
(iii) upon the occurrence of any of the events specified in Section 2.6(i),
until
the time the Company notifies the Designated Holders in writing that such
suspension is no longer effective.
(i) The
right
of Designated Holders to register Registrable Securities pursuant to this
Section 2.3
is only
exercisable if, prior to the expiration of the Effectiveness Period, the Company
becomes ineligible to register the Registrable Securities on the Registration
Statement contemplated by Section 2.2
or such
Registration Statement otherwise becomes unusable (other than due solely to
some
act or omission by the Designated Holders electing to have Registrable
Securities registered pursuant to such Registration Statement) or ineffective
and the Company is not able to correct the misstatements, have the applicable
stop order rescinded or otherwise restore the effectiveness of the Registration
Statement as contemplated by this Agreement.
6
2.4 Piggyback
Registration.
(a) Whenever
the Company proposes to register any of its securities under the Securities
Act
(other than pursuant to a registration pursuant to Section 2.2
or
Section 2.3
or a
registration on Form S-4 or S-8 or any successor or similar forms) and the
registration form to be used may be used for the registration of Registrable
Securities, whether or not for sale for its own account, the Company will give
prompt written notice (but in no event less than 30 days before the anticipated
filing date) to all Designated Holders (other than Designated Holders all of
whose Registrable Securities are then covered by an effective Registration
Statement), and such notice shall describe the proposed registration and
distribution and offer to all such Designated Holders the opportunity to
register the number of Registrable Securities as each such Designated Holder
may
request. The Company will include in such registration statement all Registrable
Securities with respect to which the Company has received written requests
for
inclusion therein within 15 days after the Designated Holders’ receipt of the
Company’s notice (a “Piggyback
Registration”).
(b) The
Company shall use its reasonable best efforts to cause the managing underwriter
or underwriters of a proposed underwritten offering involving a Piggyback
Registration to permit the Registrable Securities requested to be included
in a
Piggyback Registration to be included on the same terms and conditions as any
similar securities of the Company or any other security holder included therein
and to permit the sale or other disposition of such Registrable Securities
in
accordance with the intended method of distribution thereof.
(c) Any
Designated Holder shall have the right to withdraw its request for inclusion
of
its Registrable Securities in any Registration Statement pursuant to this
Section 2.4
by
giving written notice to the Company of its request to withdraw; provided,
that
in the event of such withdrawal (other than pursuant to Section 2.4(e)
hereof,
the Company shall not be required to reimburse such Designated Holder for the
fees and expenses referred to in Section 2.8
hereof
incurred by such Designated Holder prior to such withdrawal, unless such
withdrawal was due to a material adverse change to the Company. The Company
may
withdraw a Piggyback Registration at any time prior to the time it becomes
effective.
(d) If
(i) a
Piggyback Registration involves an underwritten offering of the securities
being
registered, whether or not for sale for the account of the Company, to be
distributed (on a firm commitment basis) by or through one or more underwriters
of recognized standing under underwriting terms appropriate for such a
transaction, and (ii) the managing underwriter of such underwritten offering
shall inform the Company and Designated Holders requesting such registration
by
letter of its belief that the distribution of all or a specified number of
such
Registrable Securities concurrently with the securities being distributed by
such underwriters would interfere with the successful marketing of the
securities being distributed by such underwriters (such writing to state the
basis of such belief and the approximate number of such Registrable Securities
which may be distributed without such effect), then the Company will be required
to include in such registration only the amount of securities which it is so
advised should be included in such registration. In such event: (x) in cases
initially involving the registration for sale of securities for the Company’s
own account, securities shall be registered in such offering in the following
order of priority: (i) first, the securities which the Company proposes to
register, and (ii) second, Registrable Securities and securities which have
been
requested to be included in such registration by Persons entitled to exercise
“piggy-back” registration rights pursuant to contractual commitments of the
Company (pro rata based on the amount of securities sought to be registered
by
Designated Holders and such other Persons); and (y) in cases not initially
involving the registration for sale of securities for the Company’s own account,
securities shall be registered in such offering in the following order of
priority: (i) first, the securities of any Person whose exercise of a “demand”
registration right pursuant to a contractual commitment of the Company is the
basis for the registration, (ii) second, Registrable Securities and
securities which have been requested to be included in such registration by
Persons entitled
7
to
exercise “piggy-back” registration rights pursuant to contractual commitments of
the Company (pro rata based on the amount of securities sought to be registered
by Designated Holders and such other Persons), and (iii) third, the securities
which the Company proposes to register.
(e) If,
as a
result of the proration provisions of this Section 2.4,
any
Designated Holders shall not be entitled to include all Registrable Securities
in a Piggyback Registration that such Designated Holders has requested to be
included, such holder may elect to withdraw his request to include Registrable
Securities in such registration.
(f) The
right
of the Designated Holders to register Registrable Securities pursuant to this
Section 2.4
is only
exercisable with respect to Registrable Securities not then covered by an
effective Registration Statement.
2.5 Underwriting;
Holdback Agreements.
(a) In
the
event that one or more Designated Holders elect to dispose of Registrable
Securities under a Registration Statement pursuant to an underwritten offering
or a requested registration pursuant to Section 2.3
involves
an underwritten offering, the managing underwriter or underwriters shall be
selected by the holders of a majority (by number of shares) of the Registrable
Securities to be sold in the underwritten offering or requested to be included
in such Registration Statement and shall be reasonably acceptable to the
Company. In connection with any such underwritten offering, the Company shall
take all such reasonable actions as are required by the managing underwriters
in
order to expedite and facilitate the registration and disposition of the
Registrable Securities, including the Company causing appropriate officers
of
the company or its Affiliates to participate in a “road show” or similar
marketing effort being conducted by such managing underwriters with respect
to
such underwritten offering.
(b) All
Designated Holders proposing to distribute their Registrable Securities through
an underwritten offering shall enter into an underwriting agreement in customary
form with the managing underwriters selected for such underwritten
offering.
(c) To
the
extent not inconsistent with applicable law, in connection with a public
offering of securities of the Company, upon the request of the Company or,
in
the case of an underwritten public offering of the Company’s securities, the
managing underwriters, each Designated Holder who beneficially owns (as defined
in Rule 13d-3 adopted by the SEC under the Exchange Act) at least 5% of the
outstanding capital stock of the Company will not effect any sale or
distribution (other than those included in the registration statement being
filed with respect to such public offering) of, or any short sale of, or any
grant of option to purchase, or any hedging or similar transaction with respect
to, any securities of the Company, or any securities, options or rights
convertible into or exchangeable or exercisable for such securities during
the
14 days prior to and the 90-day period beginning on the effective date of such
public offering, unless the Company, or in the case of an underwritten public
offering, the managing underwriters otherwise agree to a shorter period of
time.
At the request of the Company or the managing underwriters, each such Designated
Holder shall execute a customary “lock-up” agreement consistent with the
provisions of this Section 2.5;
provided, however, that no Designated Holder shall be required to enter into
any
such “lock up” agreement unless and until all of the Company’s executive
officers and directors execute substantially similar “lock up” agreements and
the Company uses commercially reasonable efforts to cause each holder of more
than 5% of its outstanding capital stock to execute substantially similar “lock
up” agreements. Neither the Company nor the underwriter shall terminate,
materially amend or waive the enforcement of any material provision under a
“lock up” agreement unless each “lock up” agreement with a Designated Holder is
also amended or waived in a similar manner or terminated, as the case may be.
The Company may impose stop-transfer instructions to enforce the restrictions
imposed by this Section 2.5.
8
2.6 Registration
Procedures.
The
Company will use its reasonable best efforts to effect the registration of
Registrable Securities pursuant to this Agreement in accordance with the
intended methods of disposition thereof, and pursuant thereto the Company will
as expeditiously as possible:
(a) before
filing the Registration Statement, the Company will furnish to any counsel
selected by the holders of a majority of the Registrable Securities a copy
of
such Registration Statement, and will provided such counsel with all written
correspondence with the SEC regarding the Registration Statement;
(b) prepare
and file with the SEC 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 for the periods provided for in
Section 2.2
and
Section 2.3,
or the
periods contemplated by the Company or the Persons requesting any Registration
Statement filed pursuant to Section 2.4;
(c) furnish
to each Designated Holder selling such Registrable Securities such number of
copies of such Registration Statement, each amendment and supplement thereto,
the prospectus included in the Registration Statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Designated Holder;
(d) use
its
reasonable best efforts to register or qualify such Registrable Securities
under
such other state securities or blue sky laws as the selling Designated Holders
selling such Registrable Securities reasonably requests and do any and all
other
acts and things which may be reasonably necessary or reasonably advisable to
enable such Designated Holder to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such Designated Holder
and
to keep each such registration or qualification (or exemption therefrom)
effective during the period which the Registration Statement is required to
be
kept effective (provided, that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this subparagraph, (ii) subject itself to taxation
in any such jurisdiction or (iii) consent to general service of process in
any
such jurisdiction);
(e) notify
each Designated Holder selling such Registrable Securities, at any time when
a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in the Registration Statement contains an untrue statement of a material fact
or
omits any fact necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, and, at the request
of
any such Designated Holder, the Company will as soon as possible prepare and
furnish to such Designated a reasonable number of copies of a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made;
(f) cause
all
such Registrable Securities to be listed or quoted on each securities exchange
or quotation service on which similar securities issued by the Company are
then
listed or quoted and, if not so listed, to be approved for trading on any
automated quotation system of a national securities association on which similar
securities of the Company are quoted;
(g) provide
a
transfer agent and registrar for all such Registrable Securities not later
than
the effective date of such Registration Statement;
9
(h) enter
into such customary agreements (including underwriting agreements containing
customary representations and warranties) and take all other customary and
appropriate actions as the holders of a majority of the Registrable Securities
being sold or the managing underwriters, if any, reasonably request in order
to
expedite or facilitate the disposition of such Registrable
Securities;
(i) notify
each Designated Holder of any stop order issued or threatened by the
SEC;
(j) otherwise
comply with all applicable rules and regulations of the SEC, and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months beginning with the
first
day of the Company’s first full calendar quarter after the effective date of the
Registration Statement, which earnings statement shall satisfy the provisions
of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) in
the
event of the issuance of any stop order suspending the effectiveness of a
Registration Statement, or of any order suspending or preventing the use of
any
related prospectus or suspending the qualification of any securities included
in
such Registration Statement for sale in any jurisdiction, the Company will
use
its reasonable best efforts to promptly obtain the withdrawal of such
order;
(l) with
respect to an underwritten offering pursuant to any Registration Statement
filed
under Section 2.2
or
Section 2.3,
obtain
one or more comfort letters, dated the effective date of the Registration
Statement and, if required by the managing underwriters, dated the date of
the
closing under the underwriting agreement, signed by the Company’s independent
public accountants in customary form and covering such matter of the type
customarily covered by comfort letters in similar transactions;
(m) with
respect to an underwritten offering pursuant to any Registration Statement
filed
under Section 2.2
or
Section 2.3,
obtain
a legal opinion of the Company’s outside counsel, dated the effective date of
such Registration Statement and, if required by the managing underwriters,
dated
the date of the closing under the underwriting agreement, with respect to the
Registration Statement, each amendment and supplement thereto, the prospectus
included therein (including the preliminary prospectus) and such other documents
relating thereto in customary form and covering such matters of the type
customarily covered by legal opinions in similar transactions;
(n) subject
to execution and delivery of mutually satisfactory confidentiality agreements,
make available at reasonable times for inspection by each Designated Holder
selling such Registrable Securities, any managing underwriter participating
in
any disposition of such Registrable Securities pursuant to the Registration
Statement, and any attorney, accountant or other agent retained by such
Designated Holder or any such managing underwriter, during normal business
hours
of the Company at the Company’s corporate office in South Bend, Indiana and
without unreasonable disruption of the Company’s business or unreasonable
expense to Company and solely for the purpose of due diligence with respect
to
the Registration Statement, legally disclosable, financial and other records
and
pertinent corporate documents of the Company and its subsidiaries reasonable
requested by such Persons, and cause the Company’s employees to, and request its
independent accountants to, supply all similar information reasonably requested
by any such Person, as shall be reasonably necessary to enable them to exercise
their due diligence responsibility;
(o) 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 OTC Bulletin Board
or
the National Association of Securities Dealers; and
10
(p) take
all
other steps reasonably necessary to effect the registration of the. Registrable
Securities contemplated hereby.
2.7 Conditions
Precedent to Company’s Obligations Pursuant to this Agreement.
It
shall be a condition precedent to the obligations of the Company to take any
action pursuant to this Article 2 with respect to the Registrable
Securities of any Designated Holder that such Designated Holder shall timely
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of distribution of such securities
as shall reasonably be required to effect the registration of such Designated
Holder’s Registrable Securities.
2.8 Fees
and Expenses.
All
expenses incident to the Company’s performance of or compliance with this
Agreement including, without limitation, all registration and filing fees
payable by the Company, fees and expenses of compliance by the Company with
securities or blue sky laws, printing expenses of the Company, messenger and
delivery expenses of the Company, and fees and disbursements of counsel for
the
Company and all independent certified public accountants of the Company, and
other Persons retained by the Company will be borne by the Company, and the
Company will pay its internal expenses (including, without limitation, all
salaries and expenses of the Company’s employees performing legal or accounting
duties), the expense of any annual audit or quarterly review, the expense of
any
liability insurance of the Company and the expenses and fees for listing or
approval for trading of the securities to be registered on each securities
exchange on which similar securities issued by the Company are then listed
or on
any automated quotation system of a national securities association on which
similar securities of the Company are quoted. In connection with any
Registration Statement filed hereunder, the Company will pay the reasonable
fees
and expenses of a single counsel retained by the Designated Holders of a
majority (by number of shares) of the Registrable Securities requested to be
included in such Registration Statement. The Company shall have no obligation
to
pay any underwriting discounts or commissions attributable to the sale of
Registrable Securities and any of the expenses incurred by any Designated Holder
which are not payable by the Company, such costs to be borne by such Designated
Holder or Holders, including, without limitation, underwriting fees, discounts
and expenses, if any, applicable to any Designated Holder’s Registrable
Securities; fees and disbursements of counsel or other professionals that any
Designated Holder may choose to retain in connection with a Registration
Statement filed pursuant to this Agreement (except as otherwise provided
herein); selling commissions or stock transfer taxes applicable to the
Registrable Securities registered on behalf of any Designated Holder; any other
expenses incurred by or on behalf of such Designated Holder in connection with
the offer and sale of such Designated Holder’s Registrable Securities other than
expenses which the Company is expressly obligated to pay pursuant to this
Agreement.
2.9 Indemnification.
(a) The
Company agrees to indemnify and hold harmless, to the fullest extent permitted
by law, each Designated Holder and its general or limited partners, officers,
directors, members, managers, employees, advisors, representatives, agents
and
Affiliates (collectively, the “Representatives”),
and
each underwriter, if any, and any Person who controls such underwriter (within
the meaning of Section 15 of the Securities Act), from and against any loss,
claim, damage, liability, reasonable attorney’s fees, cost or expense and costs
and expenses of investigating and defending any such claim (collectively, the
“Losses”),
joint
or several, and any action in respect thereof to which such Designated Holder
or
its Representatives may become subject under the Securities Act or otherwise,
insofar as such Losses (or actions or proceedings, whether commenced or
threatened, in respect thereto) arise out of or are based upon (i) any breach
by
the Company of any of its representations, warranties or covenants contained
in
this Agreement, (ii) any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, prospectus or preliminary or summary
prospectus or any amendment or supplement thereto or (iii) any omission or
alleged omission to state therein a material fact
11
required
to be stated therein or necessary to make the statements therein not misleading,
and the Company shall reimburse each such Designated Holder and its
Representatives for any reasonable legal or any other expenses incurred by
them
in connection with investigating or defending or preparing to defend against
any
such Loss, action or proceeding; provided, however, that the Company shall
not
be liable to any such Designated Holder or other indemnitee in any such case
to
the extent that any such Loss (or action or proceeding, whether commenced or
threatened, in respect thereof) arises out of or is based upon (x) an untrue
statement or alleged untrue statement or omission or alleged omission, made
in
such Registration Statement, any such prospectus or preliminary or summary
prospectus or any amendment or supplement thereto, in reliance upon, and in
conformity with, written information prepared and furnished to the Company
by
any Designated Holder or its Representatives expressly for use therein and,
with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus relating to the Registration
Statement, to the extent that a prospectus relating to the Registrable
Securities was required to be delivered by such Designated Holder under the
Securities Act in connection with such purchase, there was not sent or given
to
such Person, at or prior to the written confirmation of the sale of such
Registrable Securities to such Person, a copy of the final prospectus that
corrects such untrue statement or alleged untrue statement or omission or
alleged omission if the Company had previously furnished copies thereof to
such
Designated Holder or (y) use of a Registration Statement or the related
prospectus during a period when a stop order has been issued in respect of
such
Registration Statement or any proceedings for that purpose have been initiated
or use of a prospectus when use of such prospectus has been suspended pursuant
to Sections 2.6(e)
or (i);
provided that in each case, that such Holder received prior written notice
of
such stop order, initiation of proceedings or suspension from the Company.
In no
event, however, shall the Company be liable for indirect, incidental or
consequential or special damages of any kind.
(b) In
connection with the filing of the Registration Statement by the Company pursuant
to this Agreement, the Designated Holders will furnish to the Company in writing
such information as the Company reasonably requests for use in connection with
such Registration Statement and the related prospectus and, to the fullest
extent permitted by law, each such Designated Holder will indemnify and hold
harmless the Company and its Representatives, and each underwriter, if any,
and
any Person who controls such underwriter (within the meaning of Section 15
of
the Securities Act), from and against any Losses, severally but not jointly,
and
any action in respect thereof to which the Company and its Representatives
may
become subject under the Securities Act or otherwise, insofar as such Losses
(or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon (i) the purchase or sale of Registrable
Securities during a suspension as set forth in Section 2.6(e)
or
Section 2.6(i)
in each
case after receipt of written notice of such suspension, (ii) any untrue or
alleged untrue statement of a material fact contained in the Registration
Statement, prospectus or preliminary or summary prospectus or any amendment
or
supplement thereto, or (iii) any omission or alleged omission of a material
fact
required to be stated therein or necessary to make the statements therein not
misleading, but, with respect to clauses (ii) and (iii) above, only to the
extent that such untrue statement or omission is made in such Registration
Statement, any such prospectus or preliminary or summary prospectus or any
amendment or supplement thereto, in reliance upon and in conformity with written
information prepared and furnished to the Company by such Designated Holder
expressly for use therein or by failure of such Designated Holder to deliver
a
copy of the Registration Statement or prospectus or any amendments or
supplements thereto, and such Designated Holder will reimburse the Company
and
each Representative for any reasonable legal or any other expenses incurred
by
them in connection with investigating or defending or preparing to defend
against any such Loss, action or proceeding; provided, however, that such
Designated Holder shall not be liable in any such case to the extent that prior
to the filing of any such Registration Statement or prospectus or amendment
or
supplement thereto, such Designated Holder has furnished in writing to the
Company information expressly for use in such Registration Statement or
prospectus or any amendment or supplement thereto which corrected or made not
misleading information previously furnished to the Company. The obligation
of
each Designated Holder to indemnify the
12
Company
and its Representatives shall be limited to the net proceeds received by such
Designated Holder from the sale of Registrable Securities under such
Registration Statement. In no event, however, shall any Designated Holder be
liable for indirect, incidental or consequential or special damages of any
kind.
(c) Promptly
after receipt by any Person in respect of which indemnity may be sought pursuant
to Section 2.9(a)
or
2.9(b)
(an
“Indemnified
Party”)
of
notice of any claim or the commencement of any action, the Indemnified Party
shall, if a claim in respect thereof is to be made against the Person against
whom such indemnity may be sought (an “Indemnifying
Party”),
promptly notify the Indemnifying Party in writing of the claim or the
commencement of such action; provided, that the failure to notify the
Indemnifying Party shall not relieve the Indemnifying Party from any liability
which it may have to an Indemnified Party under Section 2.9(a)
or
2.9(b)
except
to the extent of any actual prejudice resulting therefrom. If any such claim
or
action shall be brought against an Indemnified Party, and it shall notify the
Indemnifying Party thereof, the Indemnifying Party shall be entitled to
participate therein, and, to the extent that it wishes, jointly with any other
similarly notified Indemnifying Party, to assume the defense thereof with
counsel reasonably satisfactory to the Indemnified Party. After notice from
the
Indemnifying Party to the Indemnified Party of its election to assume the
defense of such claim or action, the Indemnifying Party shall not be liable
to
the Indemnified Party for any legal or other expenses subsequently incurred
by
the Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation; provided, that the Indemnified Party shall
have the right to employ separate counsel to represent the Indemnified Party
and
its Representatives who may be subject to liability arising out of any claim
in
respect of which indemnity may be sought by the Indemnified Party against the
Indemnifying Party, but the fees and expenses of such counsel shall be for
the
account of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such counsel
or
(ii) in the written opinion of counsel to such Indemnified Party, representation
of both parties by the same counsel would be inappropriate due to actual or
potential conflicts of interest between them, it being understood, however,
that
the Indemnifying Party shall not, in connection with any one such claim or
action or separate but substantially similar or related claims or actions in
the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all Indemnified
Parties. No Indemnifying Party shall, without the prior written consent of
the
Indemnified Party, effect any settlement of any claim or pending or threatened
proceeding in respect of which the Indemnified Party is or could have been
a
party and indemnity could have been sought hereunder by such Indemnified Party,
unless such settlement includes an unconditional release of such Indemnified
Party from all liability arising out of such claim or proceeding other than
the
payment of monetary damages by the Indemnifying Party on behalf of the
Indemnified Party. Whether or not the defense of any claim or action is assumed
by the Indemnifying Party, such Indemnifying Party will not be subject to any
liability for any settlement made without its written consent, which consent
will not be unreasonably withheld.
(d) If
the
indemnification provided for in this Section 2.9
is
unavailable to the Indemnified Parties in respect of any Losses referred to
herein notwithstanding that this Section 2.9
by its
terms provides for indemnification in such case, then each 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 Losses in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Designated Holders on the other from the
offering of the Registrable Securities, or if such allocation is not permitted
by applicable law, in such proportion as is appropriate to reflect not only
the
relative benefits but also the relative fault of the Company on the one hand
and
the Designated Holders on the other in connection with the statements or
omissions which resulted in such Losses, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of each
Designated Holder on the other shall be determined by reference to, among other
things, whether any action taken, including any untrue or alleged untrue
statement of a material fact, or
13
the
omission or alleged omission to state a material fact relates to information
supplied by such party, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The
Company and the Designated Holders agree that it would not be just and equitable
if contribution pursuant to this Section 2.9(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 paragraph. The amount paid or payable by an Indemnified
Party as a result of the Losses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 2.9,
no
Designated Holder shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities of such
Designated Holder were offered to the public exceeds the amount of any Losses
which such Designated Holder has otherwise paid 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. Each Designated Holder’s
obligations to contribute pursuant to this Section 2.9
is
several in the proportion that the proceeds of the offering received by such
Designated Holder bears to the total proceeds of the offering received by all
the Designated Holders. The indemnification provided by this Section 2.9
shall be
a continuing right to indemnification with respect to sales of Registrable
Securities and shall survive the registration and sale of any Registrable
Securities by any Designated Holder and the expiration or termination of this
Agreement. The indemnity and contribution agreements contained herein are in
addition to any liability that any Indemnifying Party might have to any
Indemnified Party.
(e) Notwithstanding
the foregoing, to the extent the provisions on indemnification and contribution
contained in the underwriting agreement entered into in connection with an
underwritten public offering are in conflict with the foregoing provisions,
the
provisions in the underwriting agreement shall control for parties to that
agreement.
2.10 Participation
in Registrations.
(a) No
Person
may participate in any registration hereunder which is underwritten unless
such
Person (i) agrees to sell such Person’s securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements and this
Agreement.
(b) Each
Person that is participating in any registration under this Agreement agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 2.6(e)
or
Section 2.6(i)
above,
such Person will forthwith discontinue the disposition of its Registrable
Securities pursuant to the Registration Statement and all use of the
Registration Statement or any prospectus or related document until such Person’s
receipt of the copies of a supplemented or amended prospectus as contemplated
by
such Section 2.6(e)
or
Section 2.6(i)
and, if
so directed by the Company, will deliver to the Company (at the Company’s
expense) all copies, other than permanent file copies, then in such Designated
Holder’s possession of such documents at the time of receipt of such notice.
Furthermore, each Designated Holder agrees that if such Designated Holder uses
a
prospectus in connection with the offering and sale of any of the Registrable
Securities, the Designated Holder will use only the latest version of such
prospectus provided by Company.
14
2.11 Compliance.
With
respect to any registration under this Agreement, each Designated Holder shall
comply in all material respects with all applicable securities and other laws,
rules and regulations, including but not limited to all rules and regulations
of
the SEC, the National Association of Securities Dealers and any securities
exchange or quotation service on which the Company’s securities are listed or
quoted.
ARTICLE
3
Transfers
of Certain Rights
3.1 Transfer.
The
rights granted to the Purchasers under this Agreement may be transferred,
subject to the provisions of Sections 3.2
and
3.3;
provided that nothing contained herein shall be deemed to permit an assignment,
transfer or disposition of the Registrable Securities in violation of the terms
and conditions of the Securities Purchase Agreement or applicable
law.
3.2 Transferees.
Any
transferee to whom rights under this Agreement are transferred shall, before
and
as a condition to such transfer, deliver to the Company a written instrument
(i)
stating the name and address of the transferor and the transferee and the number
of Registrable Securities with respect to which the rights are intended to
be
transferred, and (ii) by which such transferee agrees to be bound by the
obligations imposed upon the Purchasers under this Agreement to the same extent
as if such transferee were a Purchaser hereunder.
3.3 Subsequent
Transferees.
A
transferee to whom rights are transferred pursuant to this Section 3
may not
again transfer such rights to any other Person, other than as provided in
Sections 3.1
or
3.2
above.
ARTICLE
4
Miscellaneous
4.1 Recapitalizations,
Exchanges, etc.
The
provisions of this Agreement shall apply to the full extent set forth herein
with respect to (i) the Registrable Securities, (ii) any and all shares of
Common Stock into which the Registrable Securities are converted, exchanged
or
substituted in any recapitalization or other capital reorganization by the
Company and (iii) any and all equity securities of the Company or any successor
or assign of the Company (whether by merger, consolidation, sale of assets
or
otherwise) which may be issued in respect of, in conversion of, in exchange
for
or in substitution of, the Registrable Securities and shall be appropriately
adjusted for any stock dividends, splits, reverse splits, combinations,
recapitalizations and the like occurring after the date hereof. The Company
shall cause any successor or assign (whether by merger, consolidation, sale
of
assets or otherwise) to enter into a new registration rights agreement with
the
Designated Holders on terms substantially the same as this Agreement as a
condition of any such transaction.
4.2 No
Inconsistent Agreements.
The
Company has not and shall not enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Purchasers in
this Agreement. The parties acknowledge and agree that the Company may grant
registration rights hereafter, which shall be pari passu with the registration
rights of the Purchasers, and shall not be deemed to conflict with this
covenant.
4.3 Amendments
and Waivers.
The
provisions of this Agreement may be amended and the Company may take action
herein prohibited, or omit to perform any act herein required to be performed
by
it, if, but only if, the Company has obtained the written consent of Designated
Holders of at least a majority of the Registrable Securities then in
existence.
15
4.4 Severability.
Whenever possible, each provision of this Agreement shall be interpreted in
such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement shall be held to be prohibited by or invalid under applicable
law, such provision shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
4.5 Counterparts.
This
Agreement may be executed in one or more counterparts each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
4.6 Notices.
Any
notices 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 five days after being placed
in
the mail, if mailed by regular United States 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:
|
||||
|
0000
Xxxxx Xxxxxx Xxxxxx
|
||||
|
Xxxxx
Xxxx, Xxxxxxx 00000
|
||||
|
Attention:
|
Xxxx
X. Xxxxxx
|
|||
|
Xxxxx
X. Xxxxx, Esq.
|
||||
|
Telephone:
(000) 000-0000
|
||||
|
Facsimile:
(000) 000-0000
|
||||
|
With
copy to:
|
||||
|
Xxxxxx
& Xxxxxxxxx LLP
|
||||
|
600
1st
Source Center
|
||||
|
000
Xxxxx Xxxxxxxx Xxxxxx
|
||||
|
Xxxxx
Xxxx, Xxxxxxx 00000
|
||||
|
Attention:
Xxxxxxx X. Xxxxx, Esq.
|
||||
|
Telephone:
(000) 000-0000
|
||||
|
Facsimile:
(000) 000-0000
|
||||
|
If
to the Buyer:
|
||||
|
Tontine
Capital Partners, L.P.
|
||||
|
00
Xxxxxxxx Xxxxxx, 0xx Xxxxx
|
||||
|
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
||||
|
Attention:
Xx. Xxxxxxx X. Xxxxxxx
|
||||
|
Telephone:
(000) 000-0000
|
||||
|
Facsimile:
(000) 000-0000
|
||||
16
|
With
copy to:
|
||||
|
Barack
Xxxxxxxxxx Xxxxxxxxxx Xxxxxxx & Xxxxxxxxx LLP
|
||||
|
Until
June 30, 2007 to:
|
||||
|
000
X. Xxxxxx Xxxxx, Xxxxx 0000
|
||||
|
Xxxxxxx,
Xxxxxxxx 00000
|
||||
|
After
June 30, 2007:
|
||||
|
000
Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000
|
||||
|
Xxxxxxx,
Xxxxxxxx 00000
|
||||
|
Attention:
Xxxx X. Xxxxxxxxx, Esq.
|
||||
|
Telephone:
|
(000)
000-0000
|
|||
|
Facsimile:
|
(000)
000-0000
|
|||
Each
party shall provide notice to the other party of any change in
address.
4.7 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Indiana, without regard to the conflicts of laws rules or
provisions.
4.8 Forum;
Service of Process.
Any
legal suit, action or proceeding brought by the Company, Purchasers, any other
Designated Holders, any Person entitled to indemnification or contribution
hereunder, or any of their respective Affiliates arising out of or based upon
this Agreement shall be instituted exclusively in any federal or state court
in
the State of Indiana, and each such Person irrevocably waives any objection
which it may now or hereafter have to the laying of venue or any such
proceeding, and irrevocably submits to the jurisdiction of such courts in any
such suit, action or proceeding.
4.9 Captions.
The
captions, headings and arrangements used in this Agreement are for convenience
only and do not in any way limit or amplify the terms and provisions
hereof.
4.10 No
Prejudice.
The
terms of this Agreement shall not be construed in favor of or against any party
on account of its participation in the preparation hereof.
4.11 Words
in Singular and Plural Form.
Words
used in the singular form in this Agreement shall be deemed to import the
plural, and vice versa, as the sense may require.
4.12 Remedy
for Breach.
The
Company hereby acknowledges that in the event of any breach or threatened breach
by the Company of any of the provisions of this Agreement, the Designated
Holders would have no adequate remedy at law and could suffer substantial and
irreparable damage. Accordingly, the Company hereby agrees that, in such event,
the Designated Holders shall be entitled, and notwithstanding any election
by
any Designated Holder to claim damages, to obtain a temporary and/or permanent
injunction to restrain any such breach or threatened breach or to obtain
specific performance of any such provisions, all without prejudice to any and
all other remedies which any Designated Holders may have at law or in
equity.
4.13 Successors
and Assigns, Third Party Beneficiaries.
This
Agreement and all of the provisions hereof shall be binding upon and inure
to
the benefit of the parties hereto, each assignee of the Designated Holders
pursuant to Article
3
and
their respective successors and assigns and executors,
17
administrators and heirs. Designated Holders are intended
third party beneficiaries of this Agreement and this Agreement may be enforced
by such Designated Holders.
4.14 Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding between the parties
as to the subject matter hereof and merges and supersedes all prior discussions,
agreements and understandings of any and every nature among them.
4.15 Attorneys’
Fees.
In the
event of any action or suit based upon or arising out of any actual or alleged
breach by any party of any representation, warranty, covenant or agreement
in
this Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys’ fees and expenses of such action or suit from the other party in
addition to any other relief ordered by any court.
4.16 Termination
of Rights.
All
rights under this Agreement will terminate as to a Designated Holder when that
Designated Holders no longer holds any Registrable Securities.
[Signature
Page Follows]
18
IN
WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed as of the date and year first written
above.
|
COMPANY:
|
|||
|
By:
|
|||
|
Title:
|
|||
|
PURCHASER:
|
|||
|
TONTINE
CAPITAL PARTNERS, L.P.
|
|||
|
By:
|
Tontine
Capital Management, LLC, its general partner
|
||
|
By:
|
|||
|
Xxxxxxx
X. Xxxxxxx, as managing member
|
|||
|
TONTINE
CAPITAL OVERSEAS MASTER FUND, L.P.
|
|||
|
By:
|
Tontine
Capital Overseas GP, LLC, its general partner
|
||
|
By:
|
|||
|
Xxxxxxx
X. Xxxxxxx, as managing
member
|
|||
