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EXHIBIT 10.8
Execution Copy
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as
of May 21, 1999, between and among THE X.X. XXXXXXX COMPANY, INC., a North
Carolina corporation (the "Company"), THE 1818 MEZZANINE FUND, L.P., a Delaware
limited partnership (the "Fund"), and CHARLESBANK EQUITY FUND IV, LIMITED
PARTNERSHIP, a Massachusetts limited partnership ("Charlesbank").
1. Background. The Fund is the holder of warrants exercisable
immediately to purchase initially 1,034,000 shares of the Company's Class A
Common Stock, par value $.01 per share, at an exercise price of $.01 per share
(the "Warrants"). The Company, the Fund and Charlesbank are parties to a
Warrantholder Agreement, dated as of the date hereof (the "Warrantholder
Agreement"), pursuant to which such parties have agreed to enter into this
Agreement. Capitalized terms used herein but not otherwise defined shall have
the meanings given them in the Warrantholder Agreement or in Section 3.
2. Registration Under Securities Act, etc.
2.1 Registration on Request.
(a) Request. At any time, or from time to
time following an Initial Public Offering, one or more holders (the "Initiating
Holders") of 33% or more of the shares of Common Stock issued upon exercise of
the Warrants (assuming exercise of any unexercised Warrants), may, upon written
request, require the Company to effect the registration under the Securities Act
of any Registrable Securities held by such Initiating Holders. The Company
promptly will give written notice of such requested registration to all other
holders of Registrable Securities who may join in such registration, and
thereupon the Company will use its reasonable best efforts to effect, at the
earliest possible date, the registration under the Securities Act, including by
means of an "evergreen" shelf registration on Form S-3 (or any successor form)
pursuant to Rule 415 under the Securities Act if so requested in such request
(but only if the Company is then eligible to use such a shelf registration and
if Form S-3 (or such successor form) is then available to the Company), of
(i) the Registrable Securities that
the Company has been so requested to register by such Initiating
Holders, and
(ii) all other Registrable
Securities that the Company has been requested to register by the
holders thereof (such holders together with the Initiating Holders
hereinafter are referred to as the "Selling Holders") by written
request given to the Company within 20 days after the giving of such
written notice by the Company, all to the extent requisite to permit
the disposition of the Registrable Securities so to be registered.
(b) Registration of Other Securities.
Whenever the
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Company shall effect a registration pursuant to this Section 2.1, no securities
other than Registrable Securities or securities to be offered and sold by the
Company for its own account shall be included among the securities covered by
such registration unless the Selling Holders of not less than 51% of all
Registrable Securities to be covered by such registration shall have consented
in writing to the inclusion of such other securities.
(c) Registration Statement Form.
Registrations under this Section 2.1 shall be on such appropriate registration
form of the Commission as shall be reasonably selected by the Company.
(d) Effective Registration Statement. A
registration requested pursuant to this Section 2.1 shall not be deemed to have
been effected (i) unless a registration statement with respect thereto has
become effective and remained effective in compliance with the provisions of the
Securities Act with respect to the disposition of all Registrable Securities
covered by such registration statement until the earlier of (x) such time as all
of such Registrable Securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such registration statement and (y) 180 days after the effective date of such
registration statement, except with respect to any registration statement filed
pursuant to Rule 415 under the Securities Act, in which case the Company shall
use its best efforts to keep such registration statement effective until such
time as all of the Registrable Securities cease to be Registrable Securities,
(ii) if after it has become effective, such registration is interfered with by
any stop order, injunction or other order or requirement of the Commission or
other governmental agency or court for any reason not attributable to the
Selling Holders and has not thereafter become effective, or (iii) if the
conditions to closing specified in the underwriting agreement, if any, entered
into in connection with such registration are not satisfied or waived, other
than by reason of a failure on the part of the Selling Holders.
(e) Selection of Underwriters. The
underwriter or underwriters of each underwritten offering of the Registrable
Securities so to be registered shall be selected by the Company and shall be
reasonably acceptable to the Selling Holders of more than 50% of each class of
Registrable Securities to be included in such registration.
(f) Priority in Requested Registration. If
the managing underwriter of any underwritten offering shall advise the Company
in writing (and the Company shall so advise each Selling Holder of Registrable
Securities requesting registration of such advice) that, in its opinion, the
number of securities requested to be included in such registration exceeds the
number that can be sold in such offering within a price range acceptable to the
Selling Holders of 66-2/3% of the Registrable Securities requested to be
included in such registration, the Company, except as provided in the following
sentence, will include in such registration, to the extent of the number and
type that the Company is so advised can be sold in such offering, prior to the
inclusion of any securities which are not Registrable Securities the number of
Registrable Securities requested to be included in such registration, pro rata
among the Selling Holders
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requesting such registration on the basis of the estimated gross proceeds from
the sale thereof. If the total number of Registrable Securities requested to be
included in such registration cannot be included as provided in the preceding
sentence, holders of Registrable Securities requesting registration thereof
pursuant to Section 2.1, representing not less than 33-1/3% of the Registrable
Securities with respect to which registration has been requested and
constituting not less than 66-2/3% of the Initiating Holders, shall have the
right to withdraw the request for registration by giving written notice to the
Company within 15 days after receipt of such notice by the Company and, in the
event of such withdrawal, such request shall not be counted for purposes of the
requests for registration to which holders of Registrable Securities are
entitled pursuant to Section 2.1 hereof.
(g) Limitations on Registration on Request.
Notwithstanding anything in this Section 2.1 to the contrary, in no event will
the Company be required to (i) effect, in the aggregate, more than two
registrations pursuant to this Section 2.1 or (ii) effect more than one
registration pursuant to this Section 2.1 within the twelve-month period
occurring immediately subsequent to the effectiveness (within the meaning of
Section 2.1(d)) of a registration statement filed pursuant to this Section 2.1.
(h) Listing. The Company shall list the
Registrable Securities subject to Section 2.1(a) on the National Market System
of the Nasdaq Stock Market or another of the national securities exchanges or
automated quotation systems.
(i) Expenses. The Company will pay all
Registration Expenses (except for any underwriting commissions or discounts) in
connection with any registration requested pursuant to this Section 2.1.
2.2 Incidental Registration.
(a) Right to Include Registrable Securities.
If the Company at any time, other than in connection with an Initial Public
Offering, proposes to register any shares of Common Stock or any securities
convertible into Common Stock under the Securities Act by registration on any
form other than Forms S-4 or S-8, whether or not for sale for its own account,
it will each such time give prompt written notice to all registered holders of
Registrable Securities of its intention to do so and of such holders' rights
under this Section 2.2. Upon the written request of any such holder (a
"Requesting Holder") made as promptly as practicable and in any event within 20
days after the receipt of any such notice, the Company will use its reasonable
best efforts to effect the registration under the Securities Act of all
Registrable Securities that the Company has been so requested to register by the
Requesting Holders thereof; provided, however, that prior to the effective date
of the registration statement filed in connection with such registration,
immediately upon notification to the Company from the managing underwriter of
the price at which such securities are to be sold, if such price is below the
price that any Requesting Holder shall have indicated to be acceptable to such
Requesting Holder, the Company shall so advise such Requesting Holder of such
price, and such Requesting Holder shall then have the right to withdraw its
request to have its Registrable
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Securities included in such registration statement; provided further, that if,
at any time after giving written notice of its intention to register any
securities and prior to the effective date of the registration statement filed
in connection with such registration, the Company shall determine for any reason
not to register or to delay registration of such securities, the Company may, at
its election, give written notice of such determination to each Requesting
Holder of Registrable Securities and (i) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from any obligation of
the Company to pay the Registration Expenses in connection therewith), without
prejudice, however, to the rights of any holder or holders of Registrable
Securities entitled to do so to cause such registration to be effected as a
registration under Section 2.1, and (ii) in the case of a determination to delay
registering, shall be permitted to delay registering any Registrable Securities,
for the same period as the delay in registering such other securities.
Notwithstanding anything contained in this Section 2.2(a), the Company shall
not, if any Requesting Holder shall have requested the registration of shares of
Common Stock issuable upon exercise of any Warrant in the registration,
consummate the sale of the securities included in the registration until such
time as any applicable waiting period under the Xxxx-Xxxxx-Xxxxxx Act shall have
expired or early termination thereunder shall have been granted if such
Requesting Holder notifies the Company that it is required to make a filing
under the Xxxx-Xxxxx-Xxxxxx Act before it may exercise its Warrants. No
registration effected under this Section 2.2 shall relieve the Company of its
obligation to effect any registration upon request under Section 2.1.
(b) Priority in Incidental Registrations. If
the managing underwriter of any underwritten offering shall inform the Company
in writing of its opinion that the number or type of Registrable Securities
requested to be included in such registration would materially adversely affect
such offering, and the Company has so advised the Requesting Holders in writing,
then the Company will include in such registration, to the extent of the number
and type that the Company is so advised can be sold in (or during the time of)
such offering, first, all securities proposed by the Company to be sold for its
own account, second, if such offering has been requested by a Person pursuant to
any registration rights agreement between the Company and such Person and by the
terms of such registration rights agreement the securities subject to such
registration rights agreement must be included in such registration prior to
those held by the Requesting Holders, the securities requested to be included in
such offering by such Person, third, Registrable Securities requested to be
included in such registration pursuant to this Agreement and such other
securities proposed to be registered by the Company for the accounts of each
other Person that by the terms of any applicable registration rights agreement
in effect as of the date hereof between the Company and such Person must be
included in the same proportion as the Registrable Securities of any Requesting
Holder under this Agreement, pro rata among such Requesting Holders and such
other Persons on the basis of the estimated proceeds from the sale thereof and
fourth, all other securities proposed to be registered.
(c) Expenses. The Company will pay all
Registration Expenses in connection with any registration effected pursuant to
this Section 2.2.
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2.3 Registration Procedures. If and whenever the
Company is required to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 2.1 and 2.2, the Company will,
as expeditiously as possible:
(i) prepare and (within 90 days after the
end of the period within which requests for registration may be given
to the Company or in any event as soon thereafter as practicable) file
with the Commission the requisite registration statement to effect such
registration and thereafter use its reasonable best efforts to cause
such registration statement to become effective; provided, however,
that the Company may discontinue any registration of its securities
that are not Registrable Securities (and, under the circumstances
specified in Section 2.2(a), its securities that are Registrable
Securities) at any time prior to the effective date of the registration
statement relating thereto;
(ii) 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 and to comply with the provisions
of the Securities Act with respect to the disposition of all
Registrable Securities covered by such registration statement until the
earlier of (a) such time as all of such Registrable Securities have
been disposed of in accordance with the intended methods of disposition
by the seller or sellers thereof set forth in such registration
statement and (b) 180 days after the effective date of such
registration statement, except with respect to any registration
statement filed pursuant to Rule 415 under the Securities Act if the
Company is eligible to file a registration statement on Form S-3, in
which case the Company shall use its reasonable best efforts to keep
the registration statement effective and updated, from the date such
registration statement is declared effective until such time as all of
the Registrable Securities cease to be Registrable Securities;
(iii) furnish to each seller of Registrable
Securities covered by such registration statement, such number of
conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits),
such number of copies of the prospectus contained in such registration
statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities
Act, and such other documents, as such seller may reasonably request;
(iv) use its reasonable best efforts (x) to
register or qualify all Registrable Securities and other securities
covered by such registration statement under such other securities or
blue sky laws of such States of the United States of America where an
exemption is not available and as the sellers of Registrable Securities
covered by such registration statement shall reasonably request, (y) to
keep such registration or qualification in effect for so
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long as such registration statement remains in effect and (z) to take
any other action that may be reasonably necessary or advisable to
enable such sellers to consummate the disposition in such jurisdictions
of the securities to be sold by such sellers, except that the Company
shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it would
not but for the requirements of this subdivision (iv) be obligated to
be so qualified or to consent to general service of process in any such
jurisdiction;
(v) use its reasonable best efforts to cause
all Registrable Securities covered by such registration statement to be
registered with or approved by such other federal or state governmental
agencies or authorities as may be necessary in the opinion of counsel
to the Company and counsel to the seller or sellers of Registrable
Securities to enable the seller or sellers thereof to consummate the
disposition of such Registrable Securities;
(vi) in the case of an underwritten or "best
efforts" offering, furnish, if reasonably available, at the effective
date of such registration statement to each seller of Registrable
Securities, and each such seller's underwriters, if any, a signed
counterpart of:
(x) an opinion of counsel for the
Company, dated the effective date of such registration
statement and, if applicable, the date of the closing under
the underwriting agreement, and
(y) a "comfort" letter signed by
the independent public accountants who have certified the
Company's financial statements included or incorporated by
reference in such registration statement,
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in
the case of the accountants' comfort letter, with respect to events
subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants' comfort
letters delivered to the underwriters in underwritten public offerings
of securities and, in the case of the accountants' comfort letter, such
other financial matters, and, in the case of the legal opinion, such
other legal matters, as the underwriters may reasonably request;
(vii) cause representatives of the Company
to participate in any "road show" or "road shows" reasonably requested
by any underwriter of an underwritten or "best efforts" offering of any
Registrable Securities;
(viii) notify each seller of Registrable
Securities covered by such registration statement at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that,
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or upon the happening of any event as a result of which, the prospectus
included in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or 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 seller promptly prepare
and furnish to it a reasonable number of copies of a supplement to or
an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances under which they were made;
(ix) otherwise use its reasonable best
efforts to comply with all applicable rules and regulations of the
Commission, and, if required, make available to its security holders,
as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months,
beginning with the first full calendar month after the effective date
of such registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder, and promptly furnish to each such seller of
Registrable Securities a copy of any amendment or supplement to such
registration statement or prospectus;
(x) provide and cause to be maintained a
transfer agent and registrar (which, in each case, may be the Company)
for all Registrable Securities covered by such registration statement
from and after a date not later than the effective date of such
registration; and
(xi) use its reasonable best efforts to list
all Registrable Securities covered by such registration statement on
the National Market System of the Nasdaq Stock Market or any national
securities exchange on which Registrable Securities of the same class
covered by such registration statement are then listed and, if no such
Registrable Securities are so listed, on the National Market System of
the Nasdaq Stock Market or any national securities exchange on which
the Common Stock is then listed.
The Company may require each seller of Registrable Securities as to which any
registration is being effected to furnish the Company in a reasonably prompt
manner such information regarding such seller and the distribution of such
securities as the Company may from time to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company of
the happening of any event of the kind described in subdivision (viii) of this
Section 2.3, such holder will forthwith discontinue such holder's disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until such
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holder's receipt of the copies of the supplemented or amended prospectus
contemplated by subdivision (viii) of this Section 2.3 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 holder's possession of the
prospectus relating to such Registrable Securities current at the time of
receipt of such notice.
2.4 Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by
the underwriters for any underwritten offering by holders of Registrable
Securities pursuant to a registration requested under Section 2.1, the Company
will use its reasonable best efforts to enter into an underwriting agreement
with such underwriters for such offering, such agreement to be reasonably
satisfactory in substance and form to the Company, each such holder and the
underwriters and to contain such representations and warranties by the Company
and such other terms as are generally prevailing in agreements of that type,
including, without limitation, indemnities to the effect and to the extent
provided in Section 2.7. The holders of the Registrable Securities proposed to
be sold by such underwriters will reasonably cooperate with the Company in the
negotiation of the underwriting agreement. Such holders of Registrable
Securities to be sold by such underwriters shall be parties to such underwriting
agreement and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Registrable Securities and that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. No holder of Registrable Securities shall be
required to make any representations or warranties to, or agreements with, the
Company other than representations, warranties or agreements regarding such
holder, such holder's Registrable Securities and such holder's intended method
of distribution or any other representations required by applicable law.
(b) Incidental Underwritten Offerings. If the Company
proposes to register any of its securities under the Securities Act as
contemplated by Section 2.2 and such securities are to be distributed by or
through one or more underwriters, the Company will, if requested by any
Requesting Holder of Registrable Securities, use its reasonable best efforts to
arrange for such underwriters to include all the Registrable Securities to be
offered and sold by such Requesting Holder among the securities of the Company
to be distributed by such underwriters, subject to the provisions of Section
2.2(b). The holders of Registrable Securities to be distributed by such
underwriters shall be parties to the underwriting agreement between the Company
and such underwriters and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Registrable Securities and that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. Any such
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Requesting Holder of Registrable Securities shall not be required to make any
representations or warranties to or agreements with the Company other than
representations, warranties or agreements regarding such Requesting Holder, such
Requesting Holder's Registrable Securities and such Requesting Holder's intended
method of distribution or any other representations required by applicable law.
(c) Underwriting Discounts and Commission. The
holders of Registrable Securities sold in any offering pursuant to Section
2.4(a) or Section 2.4(b) shall pay all underwriting discounts and commissions of
the underwriter or underwriters with respect to the Registrable Securities sold
thereby.
2.5 Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement, the Company will give the holders of Registrable
Securities registered under such registration statement, their underwriters, if
any, and their respective counsel the opportunity to participate in the
preparation of such registration statement, each prospectus included therein or
filed with the Commission, and each amendment thereof or supplement thereto, and
will give each of them such reasonable access to its books and records and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of such holders' and such underwriters'
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act.
2.6 Limitations, Conditions and Qualifications to Obligations
under Registration Covenants. The Company shall be entitled to postpone for a
reasonable period of time (but not exceeding 90 days) the filing of any
registration statement otherwise required to be prepared and filed by it
pursuant to Section 2.1 if the Company determines, in its good faith judgment,
that such registration and offering would interfere with any material financing,
acquisition, corporate reorganization or other material transaction involving
the Company or any of its affiliates and promptly gives the holders of
Registrable Securities requesting registration thereof pursuant to Section 2.1
written notice of such determination, containing a general statement of the
reasons for such postponement and an approximation of the anticipated delay. If
the Company shall so postpone the filing of a registration statement, holders of
Registrable Securities requesting registration thereof pursuant to Section 2.1,
representing not less than 33-1/3% of the Registrable Securities with respect to
which registration has been requested and constituting not less than 66-2/3% of
the Initiating Holders, shall have the right to withdraw the request for
registration by giving written notice to the Company within 30 days after
receipt of the notice of postponement and, in the event of such withdrawal, such
request shall not be counted for purposes of the requests for registration to
which holders of Registrable Securities are entitled pursuant to Section 2.1
hereof.
2.7 Indemnification.
(a) Indemnification by the Company. The Company will,
and hereby does, indemnify and hold harmless, in the case of any registration
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statement filed pursuant to Section 2.1 or 2.2, each seller of any Registrable
Securities covered by such registration statement and each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls such seller or any such underwriter
within the meaning of the Securities Act, and their respective directors,
officers, partners, members, agents and affiliates against any losses, claims,
damages or liabilities, joint or several, to which such seller or underwriter or
any such director, officer, partner, member, agent, affiliate or controlling
person may become subject under the Securities Act or otherwise, including,
without limitation, the reasonable fees and expenses of legal counsel (including
those incurred in connection with any claim for indemnity hereunder), insofar as
such losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such securities were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and the Company will
reimburse such seller or underwriter and each such director, officer, partner,
member, agent, affiliate and controlling Person for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such seller
or underwriter, as the case may be, specifically stating that it is for use in
the preparation thereof; and provided further, that the Company shall not be
liable to any Person who participates as an underwriter in the offering or sale
of Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of the Securities Act, in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of such Person's failure to send or give
a copy of the final prospectus, as the same may be then supplemented or amended,
to the Person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the sale
of Registrable Securities to such Person if such statement or omission was
corrected in such final prospectus. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of such seller
or any such director, officer, partner, member, agent or controlling person and
shall survive the transfer of such securities by such seller.
(b) Indemnification by the Sellers. As a condition to
including any Registrable Securities in any registration statement, the Company
shall have received an undertaking satisfactory to it from the prospective
seller of such Registrable Securities, to indemnify and hold harmless (in the
same manner and to the
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same extent as set forth in Section 2.7(a)) the Company, and each director of
the Company, each officer of the Company and each other Person, if any, who
participates as an underwriter in the offering or sale of such securities and
each other Person who controls the Company or any such underwriter within the
meaning of the Securities Act, with respect to any statement or alleged
statement in or omission or alleged omission from such registration statement,
any preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, if such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such seller
specifically stating that it is for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement; provided, however, that the liability of such
indemnifying party under this Section 2.7(b) shall be limited to the amount of
the net proceeds received by such indemnifying party in the offering giving rise
to such liability. Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or any such
director, officer or controlling person and shall survive the transfer of such
securities by such seller.
(c) Notices of Claims, etc. Promptly after receipt by
an indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in Section 2.7(a) or (b), such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party,
give written notice to the latter of the commencement of such action; provided,
however, that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under the
preceding subdivisions of this Section 2.7, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. In
case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it may
wish, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party; provided, however, that any indemnified party may, at
its own expense, retain separate counsel to participate in such defense.
Notwithstanding the foregoing, in any action or proceeding in which both the
Company and an indemnified party is, or is reasonably likely to become, a party,
such indemnified party shall have the right to employ separate counsel at the
Company's expense and to control its own defense of such action or proceeding
if, in the reasonable opinion of counsel to such indemnified party, (a) there
are or may be legal defenses available to such indemnified party or to other
indemnified parties that are different from or additional to those available to
the Company or (b) any conflict or potential conflict exists between the Company
and such indemnified party that would make such separate representation
advisable; provided, however, that in no event shall the Company be required to
pay fees and expenses under this Section 2.7 for more than one firm of attorneys
in any jurisdiction in any one legal action or group of related legal actions.
No indemnifying party shall be liable for any settlement of any action or
proceeding effected without its written consent, which consent shall not be
unreasonably withheld. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
that does not include as an
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unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation or which requires action other than the payment of money by the
indemnifying party.
(d) Contribution. If the indemnification provided for
in this Section 2.7 shall for any reason be held by a court to be unavailable to
an indemnified party under Section 2.7(a) or (b) hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof, then, in lieu of
the amount paid or payable under Section 2.7(a) or (b), the indemnified party
and the indemnifying party under Section 2.7(a) or (b) shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating the same,
including those incurred in connection with any claim for indemnity hereunder),
(i) in such proportion as is appropriate to reflect the relative fault of the
Company and the prospective sellers of Registrable Securities covered by the
registration statement which resulted in such loss, claim, damage or liability,
or action or proceeding in respect thereof, with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action or
proceeding in respect thereof, as well as any other relevant equitable
considerations or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and such prospective
sellers from the offering of the securities covered by such registration
statement; provided, however, that for purposes of this clause (ii), the
relative benefits received by the prospective sellers shall be deemed not to
exceed the amount of proceeds received by such prospective sellers. 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. Such prospective sellers'
obligations to contribute as provided in this Section 2.7(d) are several in
proportion to the relative value of their respective Registrable Securities
covered by such registration statement and not joint. In addition, no Person
shall be obligated to contribute hereunder any amounts in payment for any
settlement of any action or claim effected without such Person's consent, which
consent shall not be unreasonably withheld.
(e) Other Indemnification. Indemnification and
contribution similar to that specified in the preceding subdivisions of this
Section 2.7 (with appropriate modifications) shall be given by the Company and
each seller of Registrable Securities with respect to any required registration
or other qualification of securities under any federal or state law or
regulation of any governmental authority other than the Securities Act.
(f) Indemnification Payments. The indemnification and
contribution required by this Section 2.7 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as and
when bills are received or expense, loss, damage or liability is incurred.
SECTION 2.8. Additional Agreements.
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(a) Requested Registrations. In any requested
registration initiated by one of more holders of Registrable Securities under
Section 2.1, the parties agree (notwithstanding any contrary provision of this
Agreement) that Charlesbank and its Affiliates may request that the Company
include shares of Common Stock held by them in the proposed registration as set
forth in Section 2.1; provided, that in connection with the any such requested
registration (provided that such request has not been withdrawn in accordance
with Section 2.1(f)), if the managing underwriter of any underwritten offering
shall advise the Company in writing that, in its opinion, the total number of
securities requested to be included in such registration exceeds the number that
can be sold within the price range and time period acceptable to the initiating
holders thereof as provided in Section 2.1(f), (i) in the case of the first such
registration, shares of Common Stock held by Charlesbank and its Affiliates
shall be included in the proposed registration only to the extent that all of
the securities to be sold by the Selling Holders can be included, and (ii) in
the case of the second such requested registration, Registrable Securities held
by Selling Holders and shares of Common Stock held by Charlesbank and its
Affiliates shall be included in the proposed registration pro rata among such
Persons on the basis of the estimated gross proceeds thereof.
(b) Priority in Incidental Registrations. In any
registration of securities as to which incidental registration rights under
Section 2.2 apply, the parties agree (notwithstanding any contrary provision of
this Agreement) that Charlesbank and its Affiliates shall have the right to
participate on an equal basis with the holders of Registrable Securities in such
registration to the full extent provided in this Agreement.
(c) Expenses and Indemnification. The indemnification
and expense reimbursement provisions contained in this Agreement shall apply to
Charlesbank and its Affiliates as if such Persons were holders of Registrable
Securities.
(d) Transferability of Rights. The rights of
Charlesbank and its Affiliates under this Section 2.8 shall be transferable and
inure to the benefit of such Persons and their direct and indirect transferees.
3. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Affiliate" shall have the meaning given to such term in the
Warrantholder Agreement.
"Commission" means the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"Common Stock" shall mean and include the Class A Common
Stock, par value $.01 per share, of the Company and each other class of capital
stock of the Company that does not have a preference over any other class of
capital stock of the
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Company as to dividends or upon liquidation, dissolution or winding up of the
Company and, in each case, shall include any other class of capital stock of the
Company into which such stock is reclassified or reconstituted.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time. Reference
to a particular section of the Securities Exchange Act of 1934, as amended,
shall include a reference to the comparable section, if any, of any such similar
Federal statute.
"Xxxx-Xxxxx-Xxxxxx Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the rules and regulations promulgated
thereunder.
"Initial Public Offering" means the initial public offering of
the Common Stock and such Common Stock is listed on the New York Stock Exchange,
Inc. or quoted or listed on the National Market System of the Nasdaq Stock
Market.
"Person" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, government (or an agency or political
subdivision thereof) or other entity of any kind.
"Registrable Securities" means any shares of Common Stock
issuable upon exercise of the Warrants and any Related Registrable Securities
and any shares of Common Stock owned by the Fund. As to any particular
Registrable Securities, once issued, such securities shall cease to be
Registrable Securities when (a) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, (b) they shall have been sold as permitted by Rule 144 (or any
successor provision) under the Securities Act and the purchaser thereof does not
receive "restricted securities" as defined in Rule 144, (c) they shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent public distribution of them shall not, in the opinion of counsel for
the holders, require registration of them under the Securities Act or (d) they
shall have ceased to be outstanding. All references to percentages of
Registrable Securities shall be calculated pursuant to Section 9.
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with Section 2, including, without
limitation, all registration and filing fees, all fees of the New York Stock
Exchange, Inc., other national securities exchanges or the National Association
of Securities Dealers, Inc., all fees and expenses of complying with securities
or blue sky laws, all word processing, duplicating and printing expenses,
messenger and delivery expenses, the fees and disbursements of counsel for the
Company and of its independent public accountants, including the expenses of
"cold comfort" letters required by or incident to such performance and
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compliance, any fees and disbursements of underwriters customarily paid by
issuers or sellers of securities (excluding any underwriting discounts or
commissions with respect to the Registrable Securities) and the reasonable fees
and expenses of one counsel to the Selling Holders (selected by Selling Holders
representing at least 50% of the Registrable Securities covered by such
registration). Notwithstanding the foregoing, in the event the Company shall
determine, in accordance with Section 2.2(a) or Section 2.6, not to register any
securities with respect to which it had given written notice of its intention to
so register to holders of Registrable Securities, all of the costs of the type
(and subject to any limitation to the extent) set forth in this definition and
incurred by Requesting Holders in connection with such registration on or prior
to the date the Company notifies the Requesting Holders of such determination
shall be deemed Registration Expenses.
"Related Registrable Securities" means with respect to shares
of Common Stock issuable upon exercise of the Warrants, any securities of the
Company issued or issuable with respect to such shares of Common Stock by way of
a dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise.
"Securities Act" means the Securities Act of 1933, as amended,
or any similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. References to a
particular section of the Securities Act of 1933, as amended, shall include a
reference to the comparable section, if any, of any such similar Federal
statute.
4. Rule 144 and Rule 144A. Following an Initial Public
Offering, the Company shall take all actions reasonably necessary to enable
holders of Registrable Securities to sell such securities without registration
under the Securities Act within the limitation of the provisions of (a) Rule 144
under the Securities Act, as such Rule may be amended from time to time, (b)
Rule 144A under the Securities Act, as such Rule may be amended from time to
time, or (c) any similar rules or regulations hereafter adopted by the
Commission. Upon the request of any holder of Registrable Securities, the
Company will deliver to such holder a written statement as to whether it has
complied with such requirements.
5. Amendments and Waivers. This Agreement may be amended with
the consent of the Company and the Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if the Company shall have obtained the written consent to such amendment,
action or omission to act, of the holder or holders of at least 50% of the
Registrable Securities affected by such amendment, action or omission to act.
Each holder of any Registrable Securities at the time or thereafter outstanding
shall be bound by any consent authorized by this Section 5, whether or not such
Registrable Securities shall have been marked to indicate such consent.
6. Nominees for Beneficial Owners. In the event that any
Registrable Securities are held by a nominee for the beneficial owner thereof,
the beneficial owner
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thereof may, at its election in writing delivered to the Company, be treated as
the holder of such Registrable Securities for purposes of any request or other
action by any holder or holders of Registrable Securities pursuant to this
Agreement or any determination of any number or percentage of shares of
Registrable Securities held by any holder or holders of Registrable Securities
contemplated by this Agreement. If the beneficial owner of any Registrable
Securities so elects, the Company may require assurances reasonably satisfactory
to it of such owner's beneficial ownership of such Registrable Securities.
7. Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopier,
courier service or personal delivery:
(a) if to the Fund, addressed to it in the manner set
forth in the Warrantholder Agreement, or at such other address as it shall have
furnished to the Company in writing in the manner set forth herein;
(b) if to any other holder of Registrable Securities,
at the address that such holder shall have furnished to the Company in writing
in the manner set forth herein, or, until any such other holder so furnishes to
the Company an address, then to and at the address of the last holder of such
Registrable Securities who has furnished an address to the Company; or
(c) if to the Company, addressed to it in the manner
set forth in the Warrantholder Agreement, or at such other address as the
Company shall have furnished to each holder of Registrable Securities at the
time outstanding in the manner set forth herein.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; when delivered
to a courier, if delivered by overnight courier service; five Business Days
after being deposited in the mail, postage prepaid, if mailed; and when receipt
is acknowledged, if telecopied.
8. Assignment. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and, with respect to
the Company, its respective successors and permitted assigns and, with respect
to the Fund, any holder of any Registrable Securities, subject to the provisions
respecting the minimum numbers of percentages of shares of Registrable
Securities required in order to be entitled to certain rights, or take certain
actions, contained herein. Except by operation of law, this Agreement may not be
assigned by the Company without the prior written consent of the holders of a
majority in interest of the Registrable Securities outstanding at the time such
consent is requested.
9. Calculation of Percentage Interests in Registrable
Securities. For purposes of this Agreement, all references to a percentage of
the Registrable Securities shall be calculated based upon the number of shares
of Registrable Securities outstanding at the time such calculation is made,
assuming the conversion of all Warrants into shares
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of Common Stock.
10. No Inconsistent Agreements. The Company will not hereafter
enter into any agreement with respect to its securities that is inconsistent
with the rights granted to the holders of Registrable Securities in this
Agreement. Without limiting the generality of the foregoing, the Company will
not hereafter enter into any agreement with respect to its securities that
grants, or modify any existing agreement with respect to its securities to
grant, to the holder of its securities in connection with an incidental
registration of such securities higher priority to the rights granted to the
Fund under Section 2.2(b). Without the prior written consent of the Fund, the
Company will not hereafter enter into any agreement with respect to its
securities that grants Charlesbank or its Affiliates demand registration rights
unless such agreement permits the Fund to include its pro rata share (based on
the estimated gross proceeds of a proposed registration) of Registrable
Securities in any proposed demand registration under such agreement on a pari
passu basis with Charlesbank and its Affiliates.
11. Remedies. Each holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
12. Certain Distributions. The Company shall not at any time
make a distribution on or with respect to the Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the resulting or surviving corporation and such Registrable
Securities are not changed or exchanged) of securities of another issuer if
holders of Registrable Securities are entitled to receive such securities in
such distribution as holders of Registrable Securities and any of the securities
so distributed are registered under the Securities Act, unless the securities to
be distributed to the holders of Registrable Securities are also registered
under the Securities Act.
13. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended that all of the rights and privileges of the
Fund shall be enforceable to the fullest extent permitted by law.
14. Effectiveness; Entire Agreement. This Amended and Restated
Registration Rights Agreement shall become effective on the Effective Date (as
defined in the Warrantholder Agreement). If, prior to the Effective Date, the
Warrantholder Agreement is terminated for any reason, this Agreement shall
automatically terminate and be of no further force and effect. From and after
the Effective Date, the Registration
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Rights Agreement, dated May 7, 1997, between the Company and the Fund shall be
superseded in its entirety by this Amended and Restated Registration Rights
Agreement and have no further force and effect. From and after the Effective
Date, this Agreement, together with the Warrantholder Agreement and the
Warrants, is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein. From
and after the Effective Date, this Agreement, the Warrantholder Agreement and
the Warrants shall supersede all other agreements and understandings between the
parties with respect to such subject matter.
15. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
17. Counterparts. This Agreement may be executed in multiple
counterparts, each of which when so executed shall be deemed an original and all
of which taken together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amended and Restated Registration Rights Agreement to be executed and delivered
by their respective representatives hereunto duly authorized as of the date
first above written.
THE X. X. XXXXXXX COMPANY, INC.
By: /s/ J. Xxxxxxx Xxxxxxx
---------------------------------------
Name: J. Xxxxxxx Xxxxxxx
Title: Sr. Vice President, General Counsel
& Secretary
THE 1818 MEZZANINE FUND, L. P.
Per Pro Xxxxx Brothers Xxxxxxxx & Co.,
General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: XXXXXX X. XXXXXX
CHARLESBANK EQUITY FUND IV,
LIMITED PARTNERSHIP
By: Charlesbank Equity Fund IV GP,
Limited Partnership, its general partner
By: Charlesbank Capital Partners, LLC
Its general partner
By: /s/ Xxx Xxxxx
-----------------------------------
Name: XXX XXXXX
Title: Managing Director
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: XXXX X. XXXXX
Title: Managing Director
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