EXHIBIT 10.51
FORM OF REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT, dated as of April __, 1998, by and among
XXXXXX CORPORATION, a Delaware corporation (the "Company"), and the other
parties listed on the signature pages hereto (the "Initial Holders").
This Agreement is being entered into in connection with the
Restructuring (as such term is used in the Company's registration statement
on Form S-4, dated _________, 1998 and filed with the Securities and Exchange
Commission. The Restructuring provides for the issuance of Common Stock (as
hereinafter defined).
The parties hereto desire to provide certain registration rights to the
Initial Holders with respect to the shares of Common Stock.
Accordingly, the parties hereto agree as follows:
1. Definitions
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As used herein, unless the context otherwise requires, the following
terms have the following respective meanings:
"Account" means, with respect to a Holder or Other Holder who has been
engaged to provide investment management services, each Person (including,
without limitation, any other Holder or Other Holder) on behalf of whom such
Holder or Other Holder provides such services.
"Affiliate" means, at any time, a Person (other than a Subsidiary or a
Holder): (a) that directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, the Company;
or (b) that beneficially owns (calculated in accordance with Rule 13d-3 under
the Exchange Act) or holds ten percent (10%) or more of any class of the
Voting Stock of the Company. As used in this definition, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Common Stock" means any shares of Common Stock, par value $1.00 per
share, of the Company now or hereafter authorized to be issued, and any and
all securities of any kind whatsoever of the Company which may be issued on
or after the date hereof in respect of, or in exchange for, shares of Common
Stock pursuant to a merger, consolidation, stock split, stock dividend,
recapitalization of the Company or otherwise.
"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 Exchange Act shall include a
reference to the comparable section, if any, of any such similar Federal
statute.
"Holder" means a registered holder of Registrable Common Stock.
"Initial Holders" has the meaning assigned to it in the preamble hereof.
"Material Disclosure Event" means any pending or imminent event
relating to the Company which, based on (i) the good faith, reasonable
opinion of the Board of Directors of the Company and (ii) the advice of
competent outside counsel to the Board of Directors of the Company, (x)
requires disclosure of material, non-public information relating to such
event in the Shelf Registration so that such registration statement would not
be materially misleading, (y) is otherwise not required to be publicly
disclosed at that time (e.g., on Form 8-K or Form 10-Q) under applicable
federal or state securities laws, and (z) if publicly disclosed at the time
of such event, would have a material adverse effect on the business and
financial condition of the Company.
"Other Holder" means any person or entity to whom the Company has
granted or does grant registration rights.
"Other Holder Registrable Common Stock" means the shares of Common
Stock held by any Other Holder.
"Person" means a corporation, an association, a partnership, an
organization, a business, a trust, an individual, or any other entity or
organization, including a government or political subdivision or an
instrumentality or agency thereof.
"Registrable Common Stock" means (i) the shares of Common Stock issued
to an Initial Holder pursuant to the Restructuring or (ii) any Common Stock
issued with respect to the Common Stock referred to in clause (i) hereof by
way of a stock dividend, stock split or reverse stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or
otherwise. As to any particular Registrable Common Stock, such securities
shall cease to be Registrable Common Stock when (i) 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, (ii) they shall have been
distributed to the public pursuant to Rule 144 (or any successor provision)
under the Securities Act, (iii) 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 disposition of them
shall not require the registration under the Securities Act, or (iv) they
shall have ceased to be outstanding.
"Registration Expenses" means all expenses incident to the registration
and disposition of the Registrable Common Stock pursuant to Section 2 hereof,
including, without limitation, all registration, filing and applicable
national securities exchange fees; all fees and expenses of complying with
state securities or blue sky laws (including fees and disbursements of
counsel to the underwriters or the Holders in connection with "blue sky"
qualification of the Registrable Common Stock and determination of their
eligibility for investment under the laws of the various jurisdictions); all
duplicating and printing expenses; all 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 or, in
connection with a registration pursuant to Section 2.3 only, any special
audits required by, or incident to, such registration; all fees and
disbursements of underwriters (other than underwriting discounts and
commissions); all transfer taxes; and the reasonable fees and expenses of one
counsel to the Holders; provided, however, that Registration Expenses shall
exclude and the Holders shall pay underwriting discounts and commissions in
respect of the Registrable Common Stock being registered.
"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 shall include a reference to the
comparable section, if any, of any such similar federal statute.
"Subsidiary" means any corporation in which the Company or one or more
Subsidiaries owns sufficient voting securities to enable it or them (as a
group) ordinarily, in the absence of contingencies, to elect a majority of
the directors (or Persons performing similar functions) of such corporation.
"Voting Stock" means, with respect to any corporation, any shares of
stock of such corporation whose holders are entitled under ordinary
circumstances to vote for the election of directors of such corporation
(irrespective of whether, at the time, stock of any other class or classes
shall have or might have voting power by reason of the happening of any
contingency).
2. Shelf Registration; Registration Under Securities Act, Etc.
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2.1 Shelf Registration
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Within 35 days following the date hereof, the Company shall file with
the Commission, at the Company's expense, a "shelf" registration statement on
any appropriate form pursuant to Rule 415 under the Securities Act covering
all Registrable Common Stock (the "Shelf Registration"). The Company shall
use its reasonable commercial efforts to have the Shelf Registration declared
effective as promptly as practicable after such filing (but not later than
100 days after the date hereof) and to keep the Shelf Registration
continuously effective three years following the date on which the Shelf
Registration is declared effective (subject to Suspension Periods (as
hereinafter defined) and extensions coincident with the length of such
Suspension Periods) (the "Shelf Registration Period"); provided, however,
that if a registration statement on Form S-3 (or such successor form as is
prescribed by the Commission) is available to the Company on the third
anniversary of the date on which the Shelf Registration is declared
effective, the Company shall use its reasonable commercial efforts to keep
the Shelf Registration continuously effective for two additional years. The
Company shall, to the extent necessary, supplement or amend the Shelf
Registration (in each case, at the Company's expense) to keep the Shelf
Registration effective during the Shelf Registration Period. The Company
further agrees to supplement or amend any Shelf Registration, as required by
the registration form utilized by the Company, by the instructions applicable
to such registration form or by the Securities Act or the rules and
regulations thereunder or as reasonably requested by any Holder. The Company
shall furnish to the Holders copies, in substantially the form proposed to be
used and/or filed, of the registration statement and any such supplement or
amendment at least 30 days prior to its being used and/or filed with the
Commission. The Company hereby consents to the use (in compliance with
applicable law) of the prospectus or any amendment or supplement thereto by
each of the selling Holders of Registrable Common Stock in connection with
the offering and sale of the Registrable Common Stock covered by the
prospectus or any amendment or supplement thereto. The Company shall pay all
Registration Expenses incurred in connection with the Shelf Registration,
whether or not it becomes effective. In no event shall the Shelf
Registration include securities other than Registrable Common Stock, unless
the Holders of all Registrable Common Stock consent to such inclusion.
Nothing herein shall obligate the Company to incur or pay for fees and
disbursements of underwriters in connection with a distribution under the
Shelf Registration.
For purposes hereof, "Suspension Period" shall mean a period of time
commencing on the date on which the Company provides notice that the Shelf
Registration is no longer effective, that the prospectus included in the
Shelf Registration no longer complies with the requirements therefor
prescribed by Section 10(a) of the Securities Act, or there is a Material
Disclosure Event and the Board of Directors of the Company has elected (in
its good faith reasonable judgment) to require the suspension of the sale by
the Holder of Registrable Common Stock pursuant to the Shelf Registration,
and shall end on the date when the Holder either receives copies of the
supplemented or amended prospectus contemplated by Section 2.4(g) or such
earlier time that the Holder is otherwise advised in writing by the Company
that use of the prospectus may be resumed. The Holder agrees that it will
not sell any Registrable Common Stock pursuant to the Shelf Registration
during any Suspension Period. The Company agrees (i) that the Company will
use its best efforts to ensure that there is not more than one Suspension
Period in any 12-month period, (ii) to cause each Suspension Period to end as
soon as reasonably practicable and (iii) that no Suspension Period shall
exceed 30 consecutive days. The Company further agrees that no other holder
of any shares of the Company's capital stock will be permitted to sell any
such shares of the Company's capital stock pursuant to a registration
statement during a Suspension Period. If one or more Suspension Periods
occur, the Shelf Registration Period shall be extended by such number of days
coincident with the aggregate number of days included in all Suspension
Periods.
2.2 Registration on Request
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(a) Request
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Subject to the provisions of Section 2.2(h) below, (i) if the Shelf
Registration remains continuously effective during the Shelf Registration
Period in accordance with the terms hereof, at any time or from time to time
after the expiration of the Shelf Registration Period, or (ii) if for any
reason the Shelf Registration does not become effective within 65 days after
the date hereof or ceases to be effective at any time prior to the expiration
of the Shelf Registration Period, at any time or from time to time after the
date which is 65 days from the date hereof (if the Shelf Registration fails
to become effective) or the date on which the Shelf Registration ceases to be
effective, as the case may be, the Holders, individually and jointly, of more
than 10% of issued and outstanding shares of Common Stock (the "Initiating
Holders") shall have the right to require the Company to effect the
registration under the Securities Act of all or part of the Registrable
Common Stock held by such Initiating Holders, by delivering a written request
therefor to the Company specifying the number of shares of Registrable Common
Stock and the intended method of distribution. The Company shall promptly
give written notice of such requested registration to all other Holders, and
thereupon the Company shall, as expeditiously as possible, use its best
efforts to (A) effect the registration under the Securities Act (including by
means of a shelf registration pursuant to Rule 415 under the Securities Act
if so requested in such request and if the Company is then eligible to use
such a registration) of the Registrable Common Stock which the Company has
been so requested to register by the Initiating Holders, and all other
Registrable Common Stock which the Company has been requested to register by
any other Holder (together with the Initiating Holders, the "Selling
Holders") by written request given to the Company within 10 days after giving
of written notice by the Company, all to the extent necessary to permit
distribution in accordance with the intended method of distribution set forth
in the written request or requests delivered by the Selling Holders, and (B)
if requested by the Selling Holders, obtain acceleration of the effective
date of the registration statement relating to such registration.
(b) Registration of Other Securities
--------------------------------
Whenever the Company shall effect a registration pursuant to this
Section 2.2, no securities (other than Registrable Common Stock) shall be
included among the securities covered by such registration (i) if, in
connection with an underwritten offering by any Selling Holders of
Registrable Common Stock, the managing underwriter of such offering shall
have advised the Company and the Selling Holders in writing that the
inclusion of such other securities would adversely affect such offering or
(ii), if such offering is not an underwritten offering, unless the Selling
Holders of not less than 50% of the Registrable Common Stock to be covered by
such registration shall have consented (which consent shall not be
unreasonably withheld or delayed) in writing to the inclusion of such other
securities.
(c) Registration Statement Form
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Registrations under this Section 2.2 shall be on such appropriate
registration form of the Commission as shall be selected by the Company and
as shall be reasonably acceptable to the Selling Holders. The Company agrees
to include in any such registration statement all information which, in the
opinion of counsel to the Selling Holders, counsel to the underwriters, if
any, and counsel to the Company, is required to be included.
(d) Expenses
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The Company shall pay all Registration Expenses in connection with any
registration requested pursuant to this Section 2.2.
(e) Effective Registration Statement
--------------------------------
A registration requested pursuant to this Section 2.2 shall not be
deemed to have been effected (including for purposes of paragraph (h) of this
Section 2.2) (i) unless a registration statement with respect thereto has
become effective and has been kept continuously effective for a period of at
least 120 days (or such shorter period which shall terminate when all the
Registrable Common Stock covered by such registration statement have been
sold pursuant thereto), (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 for any reason not attributable to the Selling
Holders or waived.
(f) Selection of Underwriters
-------------------------
The underwriters of each underwritten offering of the Registrable
Common Stock to be registered shall be selected by the Selling Holders and
shall be reasonably satisfactory to the Company.
(g) Priority in Requested Registration
----------------------------------
If the managing underwriter of any underwritten offering shall advise
the Company in writing (with a copy to each Selling Holder) that, in its
opinion, the number of shares of Registrable Common Stock requested to be
included in such registration exceeds the number of shares which can be sold
in such offering within a price range acceptable to the Selling Holders of
Registrable Common Stock, the Company will include in such registration that
number of shares of Registrable Common Stock which the Company is so advised
can be sold in such offering. The Registrable Common Stock requested to be
included in such registration shall be reduced pro rata among the Selling
Holders requesting such registration of Registrable Common Stock on the basis
of the percentage of Registrable Common Stock of such Selling Holders
requesting such registration. In connection with any such registration to
which this Section 2.2(g) is applicable, no securities other than Registrable
Common Stock shall be covered by such registration.
(h) Limitations on Registration on Request
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Notwithstanding anything to the contrary contained herein, the
registration rights granted to the Holders in Section 2.2(a) are subject to
the following limitations: (i) the Holders shall be entitled to require the
Company to, and the Company shall be required to, effect no more than three
registrations pursuant to Section 2.2(a)(i) hereof and no more than four
registrations pursuant to Section 2.2(a)(ii) hereof, (ii) the Company shall
not be required to effect a registration pursuant to Section 2.2(a) if, with
respect thereto, the managing underwriter, the Commission, the Securities Act
or the rules and regulations thereunder, or the form on which the
registration statement is to be filed, would require the conduct of an audit
other than the regular audit conducted by the Company at the end of its
fiscal year, but rather the filing may be delayed until the completion of
such regular audit (unless the Holders agree to pay the expenses of the
Company in connection with such an audit other than the regular audit) and
(iii) the Holders shall not be entitled to require the Company to, and the
Company shall not be required to, effect a registration pursuant to Section
2.2(a) within three (3) months following the effective date of another
registration pursuant to Section 2.2(a).
(i) Postponement
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The Company shall be entitled once in any 12-month period to postpone
for a reasonable period of time (but not exceeding 30 days) (the
"Postponement Period") the filing of any registration statement required to
be prepared and filed by it pursuant to this Section 2.2 if the Company
determines, in its reasonable judgment, that such registration and offering
would materially interfere with any material financing, corporate
reorganization or other material transaction involving the Company or any
subsidiary, or would require premature disclosure thereof, and promptly gives
the Selling Holders 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, the Selling Holders of not less than 50% of the
shares of Registrable Common Stock to be registered shall have the right to
withdraw the request for registration in respect of the Registrable Common
Stock by giving written notice to the Company at any time and, in the event
of any such withdrawal, such request shall not be counted for purposes of the
requests for registration to which the Holders are entitled pursuant to this
Section 2.2.
2.3 Incidental Registration
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(a) Right to Include Registrable Common Stock
-----------------------------------------
If the Company at any time prior to the expiration of the Holders'
right to request the registration of Registrable Common Stock pursuant to
Section 2.2(a) hereof proposes to register any of its securities under the
Securities Act by registration on Form X-0, X-0 or S-3 or any successor or
similar form(s) (except registrations on such Form or similar form(s) solely
for registration of securities in connection with an employee stock option,
stock purchase, stock bonus or similar plan, pursuant to a dividend
reinvestment plan, pursuant to a merger, exchange, offer or transaction of
the type specified in Rule 145(a) under the Securities Act or pursuant to a
"shelf" registration), whether or not for sale for its own account, it will
each such time give prompt written notice to the Holders of its intention to
do so and of the Holders' rights under this Section 2.3 and the Holders shall
be entitled to include, subject to the provisions of this Agreement,
Registrable Common Stock on the same terms and conditions (if any) as apply
to other comparable securities of the Company sold in connection with such
registration. Upon the written request of any Holder (a "Requesting
Holder"), specifying the maximum number of shares of Registrable Common Stock
intended to be disposed of by such Requesting Holder, made as promptly as
practicable and in any event within 15 days after the receipt of any such
notice, the Company shall use its best efforts to effect the registration
under the Securities Act of all Registrable Common Stock which the Company
has been so requested to register by the Requesting Holders; provided,
however, 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 shall give written notice of such determination and
its reasons therefor to the Holders and (i) in the case of a determination
not to register, shall be relieved of its obligation under this Section 2.3
to register any Registrable Common Stock 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 the
Holders to request that such registration be effected as a registration under
Section 2.2, and (ii) in the case of a determination to delay registering,
shall be permitted to delay registering any Registrable Common Stock, for the
same period as the delay in registering such other securities. No
registration effected under this Section 2.3 shall relieve the Company of its
obligation to effect any registration upon request under Section 2.2. The
Company will pay all Registration Expenses in connection with any
registration of Registrable Common Stock requested pursuant to this Section
2.3.
(b) Right to Withdraw
-----------------
Any Requesting Holder shall have the right to withdraw its request for
inclusion of Registrable Common Stock in any registration statement pursuant
to this Section 2.3 at any time by giving written notice to the Company of
its request to withdraw.
(c) Priority in Incidental Registrations
------------------------------------
If the managing underwriter of any underwritten offering shall inform
the Company by letter of its opinion that the number of shares of Registrable
Common Stock and Other Holder Registrable Common Stock when added to the
number of other securities to be offered in such registration, would
materially adversely affect such offering, then the Company shall include in
such registration that number of shares of Registrable Common Stock and Other
Holder Registrable Common Stock which the Company is so advised by the
managing underwriter can be sold in (or during the time of) such offering
without materially adversely affecting such offering in the following order
of priority:
First: the holder or holders of securities (including the
Company in the case of a primary offering) originally requesting such
registration shall be entitled to participate in accordance with the
relative priorities, if any, that shall exist among them; and then
Second: the holder or holders of Registrable Common Stock shall
be entitled to participate in such offering, pro rata among themselves
in accordance with the number of shares of Registrable Common Stock
which each such holder shall have requested be registered; and then
Third: all other holders (including the Company, if such
registration shall have been originally requested by a person other
than the Company) of securities having the right to include shares of
Common Stock in such registration shall be entitled to participate pro
rata in accordance with the number of shares proposed to be registered
by them.
(d) Plan of Distribution
--------------------
Any participation by the Holders in a registration by the Company shall
be in accordance with the Company's plan of distribution.
2.4 Registration Procedures
-----------------------
If and whenever the Company is required to use its best efforts to
effect the registration of any Registrable Common Stock under the Securities
Act as provided in Sections 2.1, 2.2 and 2.3 hereof, the Company shall as
expeditiously as possible:
(a) prepare and file with the Commission as soon as practicable
the requisite registration statement to effect such registration (and
shall include all financial statements required by the Commission to be
filed therewith) and thereafter use its best efforts to cause such
registration statement to become effective; provided, however, that
before filing such registration statement (including all exhibits) or
any amendment or supplement thereto or comparable statements under
securities or blue sky laws of any jurisdiction, the Company shall
furnish such documents to each Holder selling Registrable Common Stock
covered by such registration statement and each underwriter, if any,
participating in the offering of the Registrable Common Stock and their
respective counsel, which documents will be subject to the review and
comments of each such Holder, each underwriter and their respective
counsel; and provided further, that (i) as to registration pursuant to
Section 2.1 or 2.2 hereof, the Company may discontinue any registration
of its securities which are not Registrable Common Stock and (ii) as to
registration pursuant to Section 2.3 hereof, the Company may
discontinue any registration of its securities, in each case, at any
time prior to the effective date of the registration statement relating
thereto;
(b) notify each Holder selling Registrable Common Stock covered
by such registration statement of the Commission's requests for
amending or supplementing the registration statement and the
prospectus, and 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 Common Stock
covered by such registration statement for such period as shall be
required for the disposition of all of such Registrable Common Stock in
accordance with the intended method of distribution thereof; provided
that, except with respect to the Shelf Registration and any other such
registration statement filed pursuant to Rule 415 under the Securities
Act, such period need not exceed 120 days;
(c) furnish, without charge, to each Holder selling Registrable
Common Stock covered by such registration statement and each
underwriter 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
Holders and such underwriters may reasonably request;
(d) use its best efforts (i) to register or qualify all
Registrable Common Stock and other securities covered by such
registration statement under such securities or blue sky laws of such
States of the United States of America where an exemption is not
available and as any Holder or Holders selling Registrable Common Stock
covered by such registration statement or any managing underwriter
shall reasonably request, (ii) to keep such registration or
qualification in effect for so long as such registration statement
remains in effect, and (iii) to take any other action which may be
reasonably necessary or advisable to enable the Holders to consummate
the disposition in such jurisdictions of the securities to be sold by
such Holder or Holders; provided, however, that the Company shall not
for any purpose be required to execute a general consent to service of
process or to qualify to do business as a foreign corporation in any
jurisdiction where it is not so qualified;
(e) use its best efforts to cause all Registrable Common Stock
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, counsel to any underwriter, or counsel to any Holder or
Holders selling Registrable Common Stock covered by such registration
statement to consummate the disposition of such Registrable Common
Stock;
(f) furnish to each Holder selling Registrable Common Stock
covered by such registration statement and each underwriter, if any,
participating in the offering of the securities covered by such
registration statement, a signed counterpart of (i) an opinion of
counsel for the Company, and (ii) 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 dated the dates such
opinions and comfort letters are customarily dated) and, in the case of
the legal opinion, such other legal matters, and, in the case of the
accountants' comfort letter, such other financial matters, as such
Holder or Holders, or the underwriters, may reasonably request;
(g) immediately notify the Holders selling Registrable Common
Stock covered by such registration statement and each managing
underwriter, if any, participating in the offering of the securities
covered by such registration statement (i) when such registration
statement, any pre-effective amendment, the prospectus or any
prospectus supplement related thereto or post-effective amendment to
such registration statement has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same
has become effective; (ii) of any request by the Commission for
amendments or supplements to such registration statement or the
prospectus related thereto or for additional information; (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or the initiation of any
proceedings for that purpose; (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any
of the Registrable Common Stock for sale under the securities or blue
sky laws of any jurisdiction or the initiation of any proceeding for
such purpose; and (v) at any time when a prospectus relating thereto is
required to be delivered under the Securities Act or, in the case of
the Shelf Registration, at any time during the Shelf Registration
Period, upon discovery that, 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 in the
case of this clause (v), at the request of any Holder or Holders
selling Registrable Common Stock covered by such registration statement
promptly prepare and furnish to such Holder or Holders and each
underwriter, if any, participating in the offering of the Registrable
Common Stock, 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;
(h) otherwise comply with all applicable rules and regulations
of the Commission, 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 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 the Holders a copy of any amendment or supplement to such
registration statement or prospectus;
(i) cause to be maintained a transfer agent and registrar
(which, in each case, may be the Company) for the Common Stock from and
after the date of such registration;
(j) use its commercially reasonable efforts to cause all
Registrable Common Stock covered by such registration statement to be
(i) listed for trading on the New York Stock Exchange, Inc. ("NYSE"),
provided that, if the Company is unable to have the Registrable Common
Stock listed for trading on the NYSE, the Company will use its best
efforts to cause all Registrable Common Stock to be quoted on the
National Market System ("National Market System") of the NASDAQ Stock
Market ("NASDAQ") within the meaning of Rule 11Aa2-1 of the Commission
if the quoting of such Registrable Common Stock is then permitted under
NASDAQ rules; or (ii) if no similar securities of the Company are then
so quoted, use its best efforts to (x) secure designation of all such
Registrable Common Stock as a NASDAQ National Market System security or
(y) failing that, cause all such Registrable Common Stock to be listed
on another national securities exchange or (z) failing that, to secure
NASDAQ authorization for such shares and, without limiting the
generality of the foregoing, to arrange for at least two market makers
to register as such with respect to such shares with the National
Association of Securities Dealers, Inc.;
(k) deliver promptly to counsel to the Holders selling
Registrable Common Stock covered by such registration statement and
each underwriter, if any, participating in the offering of the
Registrable Common Stock, copies of all correspondence between the
Commission and the Company, its counsel or auditors and all memoranda
relating to discussions with the Commission or its staff with respect
to such registration statement;
(1) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement;
(m) provide a CUSIP number for all Registrable Common Stock, no
later than the effective date of the registration statement;
(n) make available its employees and personnel and otherwise
provide reasonable assistance to the underwriters (taking into account
the needs of the Company's businesses) in their marketing of
Registrable Common Stock; and
(o) in the case of a Shelf Registration, upon the occurrence of
any event or the discovery of any facts, each as contemplated by
Section 2.4(g)(v) hereof, use its best efforts to prepare a supplement
or post-effective amendment to the registration statement or the
related prospectus or any document incorporated therein by reference or
file any other required documents so that, thereafter, such prospectus
will not contain at the time of such delivery any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
The Company may require the Holders selling Registrable Common Stock covered
by such registration statement to furnish the Company such information
regarding the Holders and the distribution of the Registrable Common Stock as
the Company may from time to time reasonably request in writing. In the
event of a registration effected pursuant to Section 2.1, 2.2(a) or 2.3(a)
hereof, if a Holder fails to provide such information and the failure by such
Holder to furnish such information would prevent or unreasonably delay the
registration statement relating to such registration from being declared
effective by the Commission, the Company may exclude such Holder's
Registrable Common Stock from such registration, which right of the Company
shall, in the case of a registration effected pursuant to Section 2.1 or
2.2(a) hereof, be subject to the consent of the Holders of not less than 50%
of the shares of Registrable Common Stock to be included in such registration
(other than such Holder's Registrable Common Stock).
The Holders agree that upon receipt of any notice from the Company of
the happening of any event of the kind described in paragraph (g)(iii) or (v)
of this Section 2.4, each of the Holders will discontinue its disposition of
Registrable Common Stock pursuant to the registration statement relating to
such Registrable Common Stock until, in the case of paragraph (g)(v) of this
Section 2.4, its receipt of the copies of the supplemented or amended
prospectus contemplated by paragraph (g)(v) of this Section 2.4 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 its
possession, of the prospectus relating to such Registrable Common Stock
current at the time of receipt of such notice. If the disposition by the
Holders of their securities is discontinued pursuant to the foregoing
sentence, the Company shall extend the period of effectiveness of the
registration statement by the number of days during the period from and
including the date of the giving of notice to and including the date when the
Holders shall have received copies of the supplemented or amended prospectus
contemplated by paragraph (g)(v) of this Section 2.4; and, if the Company
shall not so extend such period, the Holders' request pursuant to which such
registration statement was filed shall not be counted for purposes of the
requests for registration to which the Holders are entitled pursuant to
Section 2.2 hereof.
2.5 Underwritten Offerings
----------------------
(a) Requested Underwritten Offerings
--------------------------------
If requested by the underwriters for any underwritten offering by the
Selling Holders pursuant to a registration requested under Section 2.1 or
2.2, the Company shall enter into a customary underwriting agreement with
such underwriter or underwriters. Such underwriting agreement shall be
reasonably satisfactory in form and substance to the Selling Holders and
shall contain such representations and warranties by, and such other
agreements on the part of, the Company and such other terms as are generally
prevailing in agreements of that type, including, without limitation, such
customary provisions relating to indemnification and contribution by the
Company. The Selling Holders 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 the Selling Holders and that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of the Selling Holders.
No Selling Holder shall be required to make any representations or warranties
to or agreements with the Company or the underwriters other than
representations, warranties or agreements regarding such Selling Holder, its
ownership of and title to the Registrable Common Stock, and its intended
method of distribution; any liability of any Selling Holder to any
underwriter or other Person under such underwriting agreement shall be
limited to liability arising from misstatements in or omissions from its
representations and warranties and shall be limited to an amount equal to the
net proceeds that it derives from such registration; and no Selling Holder
shall be required to indemnify any underwriter, or contribute to any payments
required to be made by any underwriter in lieu thereof, to any greater extent
than such Selling Holder has agreed in Section 2.7.
(b) Incidental Underwritten Offerings
---------------------------------
In the case of a registration pursuant to Section 2.3 hereof, if the
Company shall have determined to enter into any underwriting agreements in
connection therewith, all of the Requesting Holders' Registrable Common Stock
to be included in such registration shall be subject to such underwriting
agreements. The Requesting Holders may, at their option, require that any or
all of the representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such underwriters shall also
be made to and for the benefit of the Requesting Holders and that any or all
of the conditions precedent to the obligations of such underwriters under
such underwriting agreement be conditions precedent to the obligations of the
Requesting Holders. No Requesting Holder shall be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
such Requesting Holder, its ownership of and title to the Registrable Common
Stock, and its intended method of distribution; and any liability of any
Requesting Holder to any underwriter or other Person under such underwriting
agreement shall be limited to liability arising from misstatements in or
omissions from its representations and warranties and shall be limited to an
amount equal to the net proceeds that it derives from such registration.
2.6 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 participating Holders, their underwriters, if any, and their
respective counsel, accountants and other representatives and agents the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the Commission, and, to the
extent practicable, each amendment thereof or supplement thereto, and give
each of them such access to its books and records and such opportunities to
discuss the business of the Company with its officers and employees and the
independent public accountants who have certified its financial statements,
and supply all other information reasonably requested by each of them, as
shall be necessary or appropriate, in the opinion of the participating
Holders' and such underwriters' respective counsel, to conduct a reasonable
investigation within the meaning of the Securities Act.
2.7 Indemnification
---------------
(a) Indemnification by the Company
------------------------------
The Company agrees that in the event of any registration of any
securities of the Company under the Securities Act, the Company shall, and
hereby does, indemnify and hold harmless each Holder, its respective
directors, officers, partners, agents and affiliates 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 Holder or any such
underwriter within the meaning of the Securities Act, against any losses,
claims, damages, or liabilities, joint or several, to which such Holder or
any such director, officer, partner, agent or affiliate or underwriter or
controlling Person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities, joint or several (or
actions or proceedings, whether commenced or threatened, in respect thereof),
arise out of or are based upon (i) 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, (ii) 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, or (iii) any violation by the Company of
any federal, state or common law rule or regulation applicable to the Company
and relating to action required of or inaction by the Company in connection
with any such registration, and the Company shall reimburse such Holder and
each such director, officer, partner, agent or affiliate, underwriter 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 that the Company shall not be
liable in any such case or 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 through an instrument duly executed by or on behalf
of the Holders 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 Common Stock 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 Common Stock to
such Person if such statement or omission was corrected in such final
prospectus. Such indemnity shall remain in full force regardless of any
investigation made by or on behalf of either Holder or any such director,
officer, partner, agent or affiliate or controlling Person and shall survive
the transfer of such securities by such Holder.
(b) Indemnification by the Holders
------------------------------
As a condition to including any Registrable Common Stock in any
registration statement, the Company shall have received an undertaking
reasonably satisfactory to it from each Holder so including any Registrable
Common Stock to indemnify and hold harmless (in the same manner and to the
same extent as set forth in paragraph (a) of this Section 2.7) the Company,
and each director of the Company, each officer of the Company and each other
Person, if any, who controls the Company within the meaning of the Securities
Act, and, to the extent requested, each underwriter, 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,
but only to the extent 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 through an instrument duly executed by
such Holder 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 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 Holder; and provided,
further, that such Holder shall not be liable to any Person who participates
as an underwriter in the offering or sale of Registrable Common Stock 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 any other
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 Common Stock to such other Person if such statement or omission
was corrected by such Holder in such final prospectus.
(c) Indemnification for Controlling Person Liability
------------------------------------------------
In addition to the indemnification provided for in Section 2.7(a), the
Company shall indemnify, to the fullest extent permitted by law, each Holder,
its officers, directors, partners and agents, if any, and each Person, if
any, who controls such Holder within the meaning of Section 15 of the
Securities Act, against all losses, claims, damages, liabilities (or
proceedings in respect thereof) and expenses, joint or several, in each case,
under the Securities Act or common law or otherwise, resulting from:
(i) any violation by the Company of the provisions of the
Securities Act;
(ii) any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or amendment
thereto or prospectus (and as amended or supplemented if amended or
supplemented) or any preliminary prospectus or caused by 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 under which they were made, not misleading, whether
or not, in each such case, the registration statement or amendment
thereto or prospectus (or amendment or supplement thereto) or
preliminary prospectus related or relates to any offering or sale of
Registrable Common Stock by a Holder; and
(iii) any other untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact
necessary to make the statements in any document issued or delivered to
any purchaser or potential purchaser or filed with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act (in light
of the circumstances under which they were made) not misleading, in
each case, in connection with any offering or sale of securities of the
Company by any Person, whether or not such securities offered or sold
are or were registered or required to be registered under the
Securities Act;
in each such case, to the extent that such losses, claims, damages,
liabilities (or proceedings in respect thereto) and expenses, joint or
several, are alleged to result from or exist by virtue of the fact that any
Holder controls or is alleged to control (within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act) the Company or any
Subsidiary or Affiliate of the Company, whether such claim or allegation
arises under Section 15 of the Securities Act or Section 20 of the Exchange
Act or otherwise; provided, however, that such indemnification shall not
extend to losses, claims, damages, liabilities (or proceedings in respect
thereof) or expenses caused by any untrue statement or alleged untrue
statement contained in or by any omission or alleged omission from
information furnished in writing to the Company by such Holder expressly for
use therein, or from any such information provided by an underwriter selected
by the Holders or any of them.
(d) 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 the
preceding subsections of this Section 2.7, such indemnified party shall, 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 or
proceeding; 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 subsections of this Section 2.7, except
to the extent that the indemnifying party is actually prejudiced by such
failure to give notice, and shall not relieve the indemnifying party from any
liability which it may have to the indemnified party otherwise than under
this Section 2.7. In case any such action or proceeding is brought against an
indemnified party, the indemnifying party shall be entitled to participate
therein and, unless in the opinion of outside counsel to the indemnified
party a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, to assume the defense thereof,
jointly with any other indemnifying party similarly notified to the extent
that it may wish, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if the defendants in any such action or
proceeding include both the indemnified party and the indemnifying party and
if in the opinion of outside counsel to the indemnified party there may be
legal defenses available to such indemnified party and/or other indemnified
parties which are different from or in addition to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to defend such action or proceeding on behalf of such
indemnified party or parties and the indemnifying party shall be obligated to
pay the fees and expenses of such separate counsel or counsels. After notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof and approval by the indemnified party of such
counsel, the indemnifying party shall not be liable to such indemnified party
for any legal expenses subsequently incurred by the latter in connection with
the defense thereof other than reasonable costs of investigation (unless the
proviso in the preceding sentence shall be applicable). No indemnifying
party shall be liable for any settlement of any action or proceeding effected
without its written consent which 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 which does not
include as an 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.
(e) 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
subsection (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 subsection (a) or (b) hereof, the indemnified party and the
indemnifying party under subsection (a) or (b) hereof shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating the same), (i)
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand, and the indemnified party on the other,
which resulted in such loss, claim, damage or liability, or action in respect
thereof, with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action 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 or if the
allocation provided in this clause (ii) provides a greater amount to the
indemnified party than clause (i) above, in such proportion as shall be
appropriate to reflect not only the relative fault but also the relative
benefits received by the indemnifying party and the indemnified party from
the offering of the securities covered by such registration statement as well
as any other relevant equitable considerations. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this
Section 2.7(e) were to be determined by pro rata allocation or by any other
method of allocation which does not take into account the equitable
considerations referred to in the preceding sentence of this Section 2.7(e).
No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. The
Holders' obligations to contribute as provided in this subsection (e) are
several and not joint and shall be in proportion to the relative value of
their respective Registrable Common Stock covered by such registration
statement. 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. Notwithstanding anything in this subsection (e) to the contrary,
no indemnifying party (other than the Company) shall be required to
contribute any amount in excess of the net proceeds received by such party
from the sale of the Registrable Common Stock in the offering to which the
losses, claims, damages or liabilities of the indemnified parties relate.
(f) Other Indemnification
---------------------
Indemnification and contribution similar to that specified in the
preceding subsections of this Section 2.7 (with appropriate modifications)
shall be given by the Company and the Holders with respect to any required
registration or other qualification of securities under any federal, state or
blue sky law or regulation of any governmental authority other than the
Securities Act. The indemnification agreements contained in this Section 2.7
shall be in addition to any other rights to indemnification or contribution
which any indemnified party may have pursuant to law or contract and shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of any indemnified party and shall survive the transfer
of any of the Registrable Common Stock by any of the Holders.
(g) 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; provided, however, that such periodic
payments shall only be made upon delivery to the indemnifying party of an
agreement by the indemnified party to repay the amounts advanced to the
extent it is ultimately determined that the indemnified party is not entitled
to indemnification pursuant to this Section 2.7 or otherwise. The parties
hereto agree that for each of them such agreement shall be deemed to be
contained herein. Without limiting the generality of the foregoing, each
indemnifying party, as an interim measure during the pendency of any claim,
action, investigation, inquiry or proceeding arising out of or based upon any
matter or subject for which indemnity (or contribution in lieu thereof) would
be available to any indemnified party under any provision of this Section
2.7, the Company will promptly reimburse each indemnified party, as often as
invoiced therefor (but in no event more often than monthly), for all
reasonable legal or other expenses incurred in connection with the
investigation or defense of any such claim, action, investigation, inquiry or
proceeding, notwithstanding the absence of any judicial determination as to
the propriety or enforceability of the indemnifying party's obligation to
reimburse the indemnified party for such expenses and notwithstanding the
possibility that the obligations to pay such expenses might later have been
held to be improper by a court of competent jurisdiction. To the extent that
any such interim reimbursement is held to be improper, the indemnified party
agrees to promptly return the amount so advanced to the indemnifying party,
together with interest, compounded monthly, at the prime rate (or other
commercial lending rate for borrowers of the highest credit standing) listed
from time to time in The Wall Street Journal which represents the base rate
on corporate loans posted by a substantial majority of the nation's thirty
(30) largest banks. Any such interim reimbursement payments which are not
made to the indemnified party within thirty (30) days of a request therefor
shall bear interest at such prime rate from the date of such request to the
extent such reimbursement payments are ultimately determined to be proper
obligations of the indemnifying party.
2.8 Limitation on Sale of Securities
--------------------------------
If any registration of Registrable Common Stock or Other Holder
Registrable Common Stock shall be in connection with an underwritten public
offering, each of the Holders or the Other Holders, as the case may be, and
the Company agrees (except, in the case of any Holder or Other Holder, to the
extent that such Holder or Other Holder is prohibited by applicable law or
the exercise of its fiduciary duties from agreeing to withhold Registrable
Common Stock or Other Holder Registrable Common Stock, as the case may be,
from sale) (x) not to effect any public sale or distribution of any issue of
the same class or series as the Registrable Common Stock or Other Holder
Registrable Common Stock being registered in an underwritten public offering
(other than pursuant to an employee stock option, stock purchase or similar
plan, pursuant to a dividend reinvestment plan, pursuant to a merger,
exchange offer or a transaction of the type specified in Rule 145(a) under
the Securities Act), any securities of the Company similar to any such issue
or any securities of the Company or of any security convertible into or
exchangeable or exercisable for any such issue of the Company during the 15
days prior to, and during the 45 day period (or such longer period, not in
excess of 90 days, as may be reasonably requested by the underwriter of such
offering) beginning on the effective date of such registration statement
(except as part of such registration) and (y) that any agreement entered into
after the date of this Agreement pursuant to which the Company issues or
agrees to issue any privately placed securities shall contain a provision
under which holders of such securities agree not to effect any public sale or
distribution of any such securities during the period referred to in the
foregoing clause (x), including any sale pursuant to Rule 144 under the
Securities Act (except as part of such registration, if permitted). Without
limiting the scope of the term "fiduciary," a Holder or Other Holder shall be
deemed to be acting as a fiduciary if its actions or the Registrable Common
Stock or Other Holder Registrable Common Stock proposed to be sold is subject
to the Employee Retirement Income Security Act of 1974, as amended, the
Investment Advisers Act of 1940, as amended, or the Investment Company Act of
1940, as amended, or if such Registrable Common Stock or Other Holder
Registrable Common Stock is held in a separate account under applicable
insurance law or regulation. Notwithstanding the foregoing, no Holder or
Other Holder who has been on behalf of an Account shall be required to hold
back Registrable Common Stock or Other Holder Registrable Common Stock
attributable to such Account if such Account directs such Holder or Other
Holder to dispose of some or all of such Registrable Common Stock or Other
Holder Registrable Common Stock, attributable to such Account unless (1) such
Holder or Other Holder shall have directly or indirectly induced such Account
to make such sale or (2) such Account terminates the authority of the Holder
or Other Holder of Registrable Common Stock or Other Holder Registrable
Common Stock to dispose of such securities; provided, however, that any
holdback agreement relating to such underwritten sale shall continue to apply
to Registrable Common Stock or Other Holder Registrable Common Stock
attributable to such Account which such Account has not directed such Holder
or Other Holder to sell.
2.9 No Required Sale
----------------
Nothing in this Agreement shall be deemed to create an independent
obligation on the part of any of the Holders to sell any Registrable Common
Stock pursuant to any effective registration statement.
3. Rule 144
--------
The Company shall take all actions reasonably necessary to enable
holders of Registrable Common Stock to sell such securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144, or (b) any similar rule or regulation hereafter
adopted by the Commission including, without limiting the generality of the
foregoing, filing on a timely basis all reports required to be filed by the
Exchange Act. Upon the request of any Holder, the Company will deliver to
such holder a written statement as to whether it has complied with such
requirements.
4. Amendments and Waivers
----------------------
This Agreement may not be modified or amended, or any of the provisions
hereof waived, temporarily or permanently, except pursuant to the written
consent of the Holders of not less than 50% of the shares of Registrable
Common Stock and the Company.
5. Adjustments
-----------
In the event of any change in the capitalization of the Company as a
result of any stock split, stock dividend, reverse split, combination,
recapitalization, merger, consolidation, or otherwise, the provisions of this
Agreement shall be appropriately adjusted.
6. Notice
------
All notices and other communications hereunder shall be in writing and,
unless otherwise provided herein, shall be deemed to have been given when
received by the party to whom such notice is to be given at its address set
forth below, or such other address for the party as shall be specified by
notice given pursuant hereto:
(a) If to any Holder, the address of such Holder set forth on Annex A
attached hereto;
(b) If to the Company, to it at:
Xxxxxx Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxx, Esq.
7. Assignment
----------
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned by the Company. Any
Holder may, at its election, at any time or from time to time, assign its
rights under this Agreement, in whole or in part, to any transferee of
Registrable Common Stock.
8. Remedies
--------
The parties hereto agree that money damages or any other remedy at law
would not be sufficient or adequate remedy for any breach or violation of, or
a default under, this Agreement by them and that, in addition to all other
remedies available to them, each of them shall be entitled to an injunction
restraining such breach, violation or default or threatened breach, violation
or default and to any other equitable relief, including, without limitation,
specific performance, without bond or other security being required. In any
action or proceeding brought to enforce any provision of this Agreement
(including the indemnification provisions thereof), the successful party
shall be entitled to recover reasonable attorneys' fees in addition to its
costs and expenses and any other available remedy.
9. No Inconsistent Agreements
--------------------------
The Company will not, on or after the date of this Agreement, enter
into any agreement with respect to its securities which is inconsistent with
the rights granted to the Holders in this Agreement or otherwise conflicts
with the provisions hereof, other than any customary lock-up agreement with
the underwriters in connection with any registration and offering by the
Company of its securities to the public (an "Offering") effected hereunder,
pursuant to which the Company shall agree not to register for sale, and the
Company shall agree not to sell or otherwise dispose of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock,
as applicable, for a specified period following such Offering. The Company
hereby represents and warrants that the rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with any
other agreements to which the Company is a party or by which it is bound.
The Company further agrees that if any other registration rights agreement
entered into after the date of this Agreement with respect to any of its
securities contains terms which are more favorable to, or less restrictive
on, the other party thereto than the terms and conditions contained in this
Agreement are (insofar as they are applicable) to the Holders, then the terms
and conditions of this Agreement shall immediately be deemed to have been
amended without further action by the Company or the Holders so that the
Holders shall be entitled to the benefit of any such more favorable or less
restrictive terms or conditions.
10. Headings
--------
Headings of the sections and paragraphs of this Agreement are for
convenience only and shall be given no substantive or interpretive effect
whatsoever.
11. Governing Law; Jurisdiction
---------------------------
(a) This Agreement shall be construed and enforced in accordance with
and governed by the laws of the State of New York, without giving effect to
the conflicts of law principles thereof.
(b) Each of the parties hereto irrevocably and unconditionally
consents to the jurisdiction of the federal courts and courts of the state of
New York situated in New York County, New York in respect of the
interpretation and enforcement of the provisions of this Agreement, and
hereby agrees that service of process in any such action, suit or proceeding
against the other party with respect to this Agreement may be made upon it in
any manner permitted by the laws of New York or the federal laws of the
United States.
12. Counterparts
------------
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all such counterparts shall together
constitute one and the same instrument.
13. Invalidity of Provision
-----------------------
The invalidity or unenforceability of any provision of this Agreement
in any jurisdiction shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any other
jurisdiction. If any restriction or provision of this Agreement is held
unreasonable, unlawful or unenforceable in any respect, such restriction or
provision shall be interpreted, revised or applied in a manner that renders
it lawful and enforceable to the fullest extent possible under law.
14. Further Assurances
------------------
Each party hereto shall do and perform or cause to be done and
performed all further acts and things and shall execute and deliver all other
agreements, certificates, instruments, and documents as any other party
hereto reasonably may request in order to carry out the intent and accomplish
the purposes of this Agreement and the consummation of the transactions
contemplated hereby.
15. Entire Agreement; Effectiveness
-------------------------------
This Agreement and the other writings referred to herein or delivered
in connection herewith contain the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior and
contemporaneous arrangements or understandings with respect thereto.
IN WITNESS WHEREOF, the undersigned have Executed this Agreement as of
the date first above written:
XXXXXX CORPORATION
By:
---------------------------------------
Name:
Title:
XXXXXX CORPORATION, as attorney in fact for the
Holders of Registrable Common Stock
By:
---------------------------------------
Name:
Title:
MAGTEN ASSET MANAGEMENT CORP., as agent on
behalf of those investment advisory clients
listed on Schedule I hereto
By:
---------------------------------------
Name:
Title:
