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EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of December 9,
1999 by and among Metretek Technologies, Inc., a Delaware corporation (the
"Company"), and each Holder (as hereinafter defined) executing a signature page
hereto.
This Agreement is made pursuant to a certain Securities Purchase
Agreement of even date herewith by and among the Company and the purchasers
named therein (the "Purchase Agreement"). In order to induce the purchasers to
enter into the Purchase Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing of the transactions contemplated by the Purchase
Agreement.
In consideration of the foregoing, the parties hereby agree as follows:
Section 1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Advice" has the meaning set forth in Section 4.
"Affiliate" means, with respect to any specified Person, any other
Person who, directly or indirectly, controls, is controlled by, or is under
common control with such specified Person.
"Business Day" means any day other than a day on which banks are
authorized or required to be closed in the State of New York.
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the common stock, par value $.01 per share, of the
Company.
"Company" has the meaning set forth in the preamble and shall include
the Company's successors by merger, acquisition, reorganization or otherwise.
"Controlling Persons" has the meaning set forth in Section 6(a).
"Damages" has the meaning set forth in Section 6(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor statute, and the rules and regulations of
the Commission promulgated thereunder.
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"Holder" means (i) each Person (other than the Company and its
Affiliates) who is a signatory to this Agreement as listed on Schedule 1 hereto
and (ii) each Person (other than the Company and its Affiliates) to whom a
Holder transfers Securities, as provided in Section 11 hereof, if such
Securities remain Registrable Securities.
"Holders' Counsel" means Xxxxxxx, Procter & Xxxx LLP, special counsel
to the Holders, or any successor counsel selected by Holders of a majority in
interest of the Registrable Securities.
"Inspectors" has the meaning set forth in Section 4(m).
"NASD" has the meaning set forth in Section 4(q).
"Nasdaq" has the meaning set forth in Section 4(o).
"Objection Notice" has the meaning set forth in Section 4(a).
"Objecting Party" has the meaning set forth in Section 4(a).
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability company,
unincorporated organization or government or other agency or political
subdivision thereof.
"Piggy-Back Registration" has the meaning set forth in Section 3(a).
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
Registration Statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, and all other amendments and
supplements to the prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such prospectus.
"Public Offering" means a public offering of Securities registered on
Form S-11 or Form S-3 (or any successor or equivalent forms) under the
Securities Act for the Company's own or others' account.
"Purchase Agreement" means the Securities Purchase Agreement, dated as
of the date hereof, between the Company and the Holders pursuant to which the
Securities are being issued, as amended, modified or supplemented from hereto
time, together with any exhibits, schedules or other attachments thereto.
"Records" has the meaning set forth in Section 4(m).
"Registrable Securities" means the Securities; provided, however, that
any Securities shall cease to be Registrable Securities when (i) a Registration
Statement covering such
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Registrable Securities has been declared effective and such Registrable
Securities have been disposed of by the holder thereof pursuant to such
effective Registration Statement, (ii) such Registrable Securities are
transferred by the holder thereof to any Person (other than a Holder) pursuant
to Rule 144 (or any successor rule or similar provision then in effect, but not
Rule 144A) under the Securities Act, including a sale pursuant to the provisions
of Rule 144(k), or (iii) such Securities shall have ceased to be outstanding.
"Registration Expenses" has the meaning set forth in Section 5.
"Registration Statement" means any registration statement of the
Company that covers any of the Registrable Securities pursuant to the provisions
of this Agreement (including any Shelf Registration Statement and any
registration statement pursuant to which a Piggy-Back Registration is effected),
and all amendments and supplements to any such registration statement, including
post-effective amendments, in each case including the Prospectus, all exhibits,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
"Required Filing Date" has the meaning set forth in Section 2(a).
"Securities" means (i) all shares of Common Stock held by any Holder,
(ii) all shares of Common Stock issued or issuable to any Holder upon the
conversion of any convertible securities or the exercise of any options,
warrants or other rights to subscribe for, purchase or otherwise acquire Common
Stock, (iii) all shares of the Company's Series B Preferred Stock held by any
holder, and (iv) all shares of Common Stock directly or indirectly issued or
issuable in respect of the securities referred to in clauses (i), (ii) and (iii)
above by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation, or other
reorganization.
"Securities Act" means the Securities Act of 1933, as amended from time
to time, or any successor statute, and the rules and regulations of the
Commission promulgated thereunder.
"Shelf Registration Statement" has the meaning set forth in Section
2(a).
"Suspension Notice" has the meaning set forth in Section 4.
"Suspension Period" has the meaning set forth in Section 4.
"Target Effective Date" means the date 90 days after the Required
Filing Date.
"Target Effective Period" means the period of time between the date on
which a Shelf Registration Statement is actually declared effective and the
later of (i) the date which is 36 months following the date hereof, and (ii) the
date which is three months after the date on which a Holder ceases to be an
Affiliate of the Company in the opinion of counsel for the Company.
"Target Filing Date" has the meaning set forth in Section 2(a).
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Section 2. Shelf Registration.
(a) Filing; Effectiveness. As soon as practicable but not
later than the sixtieth (60th) day following the date hereof (the "Required
Filing Date"), the Company shall prepare and file with the Commission a "shelf"
registration statement (the "Shelf Registration Statement") on the appropriate
form for an offering to be made on a continuous basis pursuant to Rule 415 under
the Securities Act (or any successor rule or similar provision then in effect)
covering all of the Registrable Securities. The Company shall use its best
efforts to have the Shelf Registration Statement declared effective on or before
the Target Effective Date and to keep such Shelf Registration Statement
continuously effective for the Target Effective Period. Any Holder of
Registrable Securities shall be permitted to withdraw all or any part of the
Registrable Securities from a Shelf Registration Statement at any time prior to
the effective date of such Shelf Registration Statement.
(b) Supplements; Amendments. The Company agrees, if necessary,
to supplement or amend the Shelf Registration Statement, as required by the
rules, regulations or instructions applicable to the registration form used by
the Company for such Shelf Registration Statement or by the Securities Act or as
requested (which request shall result in the filing of a supplement or
amendment) by any Holder of Registrable Securities to which such Shelf
Registration Statement relates, and the Company agrees to furnish to the
Holders, Holders' Counsel and any managing underwriter copies of any such
supplement or amendment prior to its being used and/or filed with the
Commission.
(c) Liquidated Damages. If the Shelf Registration Statement is
not filed on or before the Required Filing Date, the Company shall pay
liquidated damages to each Holder in an amount equal to $1.00 per 1,000 shares
of the Registrable Securities per week beginning on the Required Filing Date. If
the Shelf Registration Statement is filed, but has not become effective on or
before the Target Effective Date, the Company shall pay liquidated damages to
each Holder in an amount equal to $1.00 per 1,000 shares of the Registrable
Securities per week beginning on the Target Effective Date. The weekly
liquidated damages payable by the Company to the Holders as a result of a late
filing or a late declaration of effectiveness shall increase by an amount equal
to $.10 per 1,000 shares of the Registrable Securities two weeks after the
Required Filing Date or the Target Effective Date, as the case may be, and shall
thereafter increase by an amount equal to $.10 per 1,000 shares of the
Registrable Securities at the end of each subsequent two week period for so long
as the Shelf Registration Statement is not filed or is not declared effective,
up to a maximum of $3.20. If a stop order is imposed or if for any other reason
the effectiveness of the Shelf Registration Statement is suspended during the
Target Effective Period, then the Company shall pay liquidated damages to each
Holder of the Registrable Securities in an amount equal to $1.00 per 1,000
shares of Registrable Securities per week beginning on the date of such stop
order or other suspension of effectiveness. The weekly liquidated damages
payable by the Company to the Holders as a result of the imposition of a stop
order or such other suspension of the effectiveness of the Shelf Registration
Statement during the Target Effective Period shall increase by an amount equal
to $.10 per 1,000 shares of the Registrable Securities two weeks after the stop
order was imposed or the effectiveness of the Shelf Registration Statement was
otherwise suspended and shall thereafter increase by an amount equal to $.10 per
1,000 shares of the Registrable Securities at the end of each subsequent two
week period for so long as such stop order remains in effect or the
effectiveness of the Shelf
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Registration Statement continues to be suspended, up to a maximum of $3.20. For
purposes of the two preceding sentences, the Holders will not be entitled to
receive liquidated damages under this Agreement during a Suspension Period (as
hereinafter defined) except to the extent permitted by Section 5 of this
Agreement. The Registrable Securities with respect to which liquidated damages
shall accrue and be payable in accordance with this Section 2(c) shall be those
Registrable Securities held by the Holders which are included or proposed to be
included in the Shelf Registration Statement. Notwithstanding the foregoing, the
liquidated damage provisions set forth in this paragraph shall not apply to the
extent that the Registrable Securities are covered by another registration
statement or by a successor registration statement to the Shelf Registration
Statement, in either case to the same extent and providing for the same method
of distribution as were provided in the Shelf Registration Statement.
The liquidated damages payable by the Company to the Holders pursuant
to this Section 2(c) shall be deemed to commence accruing on the day on which
the event triggering such liquidated damages occurs. Such liquidated damages
shall cease to accrue (i) with respect to the liquidated damages payable as a
result of the Company's failure to file the Shelf Registration Statement on or
prior to the Required Filing Date, on the day after the Shelf Registration
Statement is filed, (ii) with respect to the liquidated damages payable as a
result of the Company's failure to have the Shelf Registration Statement
declared effective on or prior to the Target Effective Date, on the day after
the Shelf Registration Statement is declared effective, or (iii) with respect to
the liquidated damages payable as a result of the imposition of a stop order or
the suspension for any other reason of the effectiveness of the Shelf
Registration Statement, on the day after the stop order is withdrawn or the
effectiveness of the Shelf Registration Statement is otherwise reinstated.
Notwithstanding the foregoing, if the sole reason why (i) the Company
has not filed the Shelf Registration Statement on or before the Required Filing
Date and/or (ii) the Shelf Registration Statement has not become effective on or
before the Target Effective Date, is because the Holders did not provide the
Company with information which is required to be disclosed in the Shelf
Registration Statement and which the Company requested the Holders to so provide
in writing at least 15 days prior to the Required Filing Date and/or the Target
Effective Date, as the case may be, the Company's obligation to pay liquidated
damages with respect to such late filing or such late declaration of
effectiveness will not begin to accrue until five business days after the
Holders have provided such information to the Company.
The Company shall pay the liquidated damages due with respect to any
Registrable Securities at the end of each week during which such liquidated
damages accrue and, to the extent such liquidated damages are not paid when due,
shall thereafter accrue dividends at a rate equal to the U.S. prime rate plus 5%
per annum. Liquidated damages shall be paid to the Holders of Registrable
Securities entitled to receive such liquidated damages by wire transfer in
immediately available funds to the accounts designated by such Holders.
The parties hereto agree that the liquidated damages provided for in
this Section 2 constitute a reasonable estimate as of the date hereof of the
damages that will be suffered by Holders of Registrable Securities by reason of
the failure of the Shelf Registration Statement to be filed, to be declared
effective and/or to remain effective, as the case may be, in accordance with
this Agreement. However, the right of the Holders to be paid the liquidated
damages
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provided for in this Section 2(c) is not intended to be and shall not be
construed or deemed to be an exclusive remedy, it being understood that the
Holders shall have the full right to pursue all available remedies at law or in
equity for any breach by the Company of any of its obligations under this
Agreement.
The liquidated damages provisions of this Section 2(c) shall not apply
if the offering of Registrable Securities pursuant to such Shelf Registration
Statement shall be in the form of an underwritten offering, unless the Holders
can demonstrate that the failure of the Company to file the Shelf Registration
Statement on or before the Required Filing Date, and/or the failure of the
Registration Statement to become effective on or before the Target Effective
Date was due solely or primarily to the acts or omissions of the Company or its
officers, directors, employees, counsel or other representatives.
(d) Effective Registration. A registration statement will not
be deemed to have been effected as a Shelf Registration Statement unless such
Shelf Registration Statement has been declared effective by the Commission and
the Company has complied in all material respects with its obligations under
this Agreement with respect thereto; provided, however, that if, after a Shelf
Registration Statement has been declared effective, the offering of Registrable
Securities pursuant to such Shelf Registration Statement is interfered with by
any stop order, injunction or other order or requirement of the Commission or
any other governmental agency or court, such Shelf Registration Statement will
be deemed not to have become effective during the period of such interference
until the offering of Registrable Securities pursuant to such Shelf Registration
Statement may legally resume. If a Shelf Registration Statement is deemed not to
have been effected, then the Company shall continue to be obligated to effect
such Shelf Registration Statement pursuant to this Section 2.
(e) Selection of Underwriter. If the Holders of a majority of
the Registrable Securities requested to be included in such Shelf Registration
Statement so elect, the offering of Registrable Securities pursuant to such
Shelf Registration Statement shall be in the form of an underwritten offering.
If they so elect, the Holders of a majority of the Registrable Securities
requested to be included in such Shelf Registration Statement shall select one
or more nationally recognized firms of investment bankers to act as the
book-running managing underwriter or underwriters in connection with such
offering and shall select any additional investment bankers and managers to be
used in connection with the offering; that such selection shall be subject to
the consent of the Company, which consent shall not be unreasonably withheld.
(f) Inclusion of Other Securities. The Company shall be
entitled to include in the Shelf Registration Statement shares of Common Stock
for the account of its other security holders which have "piggy-back"
registration rights. Notwithstanding the foregoing, if the managing underwriter
or underwriters of any such Shelf Registration Statement which is an
underwritten offering have informed, in writing, the Company and the Holders
that it is their opinion that the total number of shares which the Company, the
Holders of Registrable Securities and any other Persons participating in such
registration intend to include in such offering is such as to be likely to
materially and adversely affect the success of such offering and/or its
marketing price or other terms, then the Company shall not be entitled to
include such other shares of Common Stock and the number of shares to be offered
for the account of all Persons (other than the Holders) participating in such
Shelf Registration Statement shall be reduced or limited (to
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zero if necessary) pro rata in proportion to the respective number of shares
requested to be included in such offering by such Persons to the extent
necessary to reduce the total number of shares included in such Shelf
Registration Statement to the number of shares, if any, recommended by such
managing underwriter or underwriters.
Section 3. Piggy-Back Registration.
(a) Request for Registration. Each time the Company proposes
to file a registration statement under the Securities Act with respect to an
offering for cash by the Company for its own account or for the account of any
of its securityholders of any class of equity security (other than (i) a
registration statement on Form S-4 or S-8 (or any substitute or successor form
that is adopted by the Commission) or (ii) a registration statement filed in
connection with an exchange offer or the offering of securities solely to the
Company's existing securityholders), then the Company shall give written notice
of such proposed filing to each Holder of Registrable Securities as soon as
practicable (but in no event less than twenty (20) days before the anticipated
filing date), and such notice shall offer such Holder the opportunity to
register such number of shares of Registrable Securities as each such Holder may
request (which request must be made in writing and shall specify the Registrable
Securities intended to be disposed of by such Holder and the intended method of
distribution thereof) (a "Piggy-Back Registration"). The Company shall permit,
or, if the offering relating to a Piggy-Back Registration is an underwritten
offering, shall use its best efforts to cause the managing underwriter or
underwriters of such proposed underwritten offering to permit, the Registrable
Securities requested to be included in such Piggy-Back Registration to be
included on the same terms and conditions as any similar securities of the
Company or any other securityholder included therein and shall permit, or use
its best efforts to cause such managing underwriter or underwriters to permit,
the sale or other disposition of such Registrable Securities in accordance with
such Holder's intended method of distribution thereof. Any Holder shall have the
right to withdraw its request for inclusion of its Registrable Securities in any
registration statement pursuant to this Section 3 by giving written notice to
the Company of such withdrawal. The Company may withdraw a Piggy-Back
Registration at any time prior to the time it becomes effective, provided that
the Company shall give immediate notice of such withdrawal to the Holders who
requested Registrable Securities to be included in such Piggy-Back Registration
and shall reimburse such Holders for all reasonable out-of-pocket expenses
(including counsel fees and expenses) incurred prior to such withdrawal.
(b) Reduction of Offering. If the managing underwriter or
underwriters of any such Piggy-Back Registration which is an underwritten
offering have informed, in writing, the Holders requesting inclusion of
Registrable Securities in such offering that it is their opinion that the total
number of shares which the Company, Holders of Registrable Securities and any
other Persons participating in such registration intend to include in such
offering is such as to materially and adversely affect the success of such
offering, then the number of shares to be offered for the account of all Persons
participating in such Piggy-Back Registration shall be reduced or limited (to
zero if necessary) and the Company shall include in the registration the maximum
number of securities which it is so advised can be sold without the adverse
effect, allocated as follows:
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(i) First, the securities proposed to be registered
by the Company for its own account;
(ii) Second, the securities proposed to be registered
by the Company pursuant to the exercise by any Person of a "demand"
right requesting the registration of securities of the Company pursuant
to an agreement with the Company in existence as of the date of this
Agreement;
(iii) Third, the securities proposed to be registered
by the Company, other than for its own account, including, without
limitation, the Registrable Securities duly requested to be included in
the registration by the Holders and the Shares required to be
registered by the Company pursuant to the exercise by any Person other
than a Holder of Registrable Securities, of its piggy-back rights.
All reductions in shares included in a Registration Statement shall be
allocated pro rata in proportion to the respective number of shares requested to
be included in such offering by such Persons to the extent necessary to reduce
the total number of shares requested to be included in such offering to the
number of shares, if any, recommended by such managing underwriter or
underwriters.
Although the specific shares of Common Stock disposed of pursuant to a
Piggy-Back Registration will cease to be Registrable Securities, the mere
registration of Registrable Securities under this Section 3 shall not relieve
the Company of its obligation to effect or maintain a Shelf Registration
Statement pursuant to Section 2. No failure by the Holders to elect a Piggy-Back
Registration under this Section 3 or to complete the sale of Registrable
Securities pursuant to the registration statement effected in connection
therewith, and no withdrawal of Registrable Securities from a Piggy-Back
Registration, shall relieve the Company of any other obligation under this
Agreement, including without limitation, the Company's obligations under
Sections 4 and 5.
Section 4. Registration Procedures.
In connection with the obligations of the Company to effect or cause
the registration of any Registrable Securities pursuant to the terms and
conditions of this Agreement, the Company shall use its best efforts to effect
the registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as quickly as reasonably practicable,
and in connection therewith:
(a) The Company shall prepare and file with the Commission a
Registration Statement on the appropriate form under the Securities
Act, which Registration Statement shall comply as to form in all
material respects with the requirements of the applicable form and
include all financial statements required by the Commission to be filed
therewith, and use its best efforts to cause such Registration
Statement to become effective and remain effective in accordance with
the provisions of this Agreement; provided, however, that, at least
five (5) Business Days prior to filing a Registration Statement or
Prospectus and three (3) Business Days prior to filing any amendments
or supplements thereto, including documents incorporated by reference
after the initial filing
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of the Registration Statement, the Company shall furnish to the Holders
of the Registrable Securities covered by such Registration Statement,
Holders' Counsel and the underwriters, if any, draft copies of all such
documents proposed to be filed, which documents will be subject to the
review of Holders' Counsel and the underwriters, if any, and the
Company will not, unless required by law or this Agreement, file any
Registration Statement or amendment thereto or any Prospectus or any
supplement thereto to which Holders holding a majority of the
Registrable Securities covered by such Registration Statement or the
underwriters with respect to such Securities, if any, shall object;
provided, however, that any such objection to the filing of any
Registration Statement or amendment thereto or any Prospectus or
supplement thereto shall be made by written notice (the "Objection
Notice") delivered to the Company no later than five (5) or three (3)
Business Days, as applicable, after the party or parties asserting such
objection (the "Objecting Party") receives draft copies of the
documents that the Company proposes to file. The Objection Notice shall
set forth the objections and the specific areas in the draft documents
where such objections arise. The Company shall have five (5) Business
Days after receipt of the Objection Notice to correct such deficiencies
to the reasonable satisfaction of the Objecting Party, and will notify
each Holder of any stop order issued or threatened by the Commission in
connection therewith and shall use its best efforts to prevent the
entry of such stop order or, if entered, to have such stop order
withdrawn at the earliest possible moment.
(b) The Company shall promptly prepare and file with the
Commission such amendments and post-effective amendments to the
Registration Statement as may be necessary to keep such Registration
Statement effective for as long as the Company is required to keep such
Registration Statement effective pursuant to the terms hereof; shall
cause the Prospectus to be supplemented by any required Prospectus
supplement, and, as so supplemented, to be filed pursuant to Rule 424
under the Securities Act; and shall comply with the provisions of the
Securities Act applicable to it with respect to the disposition of all
Registrable Securities covered by such Registration Statement during
the applicable period in accordance with the intended methods of
disposition by the Holders set forth in such Registration Statement or
amendment thereto or such Prospectus or supplement thereto;
(c) The Company shall promptly furnish to any Holder and the
underwriters, if any, without charge, such number of conformed copies
of such Registration Statement and any post-effective amendment thereto
and such number of copies of the Prospectus (including each preliminary
Prospectus) and any amendments or supplements thereto, any documents
incorporated by reference therein and such other documents as any such
Holder or underwriter may request in order to facilitate the public
sale or other disposition of the Registrable Securities being sold by
such Holder.
(d) The Company shall, on or prior to the date on which a
Registration Statement is declared effective, (i) use its best efforts
to register, or qualify the Registrable Securities covered by such
Registration Statement under the securities or "blue sky" laws of each
of the 50 states of the United States (or such jurisdictions as any
Holder, Holders' counsel or underwriter may request) or obtain
appropriate exemptions therefrom; (ii) do any and all other acts and
things which may be necessary to enable the
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Holders of Registrable Securities included in such Registration
Statement to consummate the disposition of such Registrable Securities
in accordance with their intended method of distribution thereof; (iii)
use its best efforts to keep each such state securities or "blue sky"
registration or qualification (or exemption therefrom) effective during
the period in which the Company is required to keep the Registration
Statement effective; and (iv) do any and all other acts or things which
may be necessary or advisable to enable the Holders of Registrable
Securities included in such Registration Statement to complete the
disposition in such jurisdictions of such Registrable Securities in
accordance with their intended method of distribution thereof;
provided, however, that the Company shall not be required (A) to
qualify to do business in any jurisdiction where it would not otherwise
be required to so qualify but for this Section 4(d) or (B) to file any
general consent to service of process.
(e) The Company shall use its best efforts to cause the
Registrable Securities covered by a Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and
operations of the Company to enable the Holders to consummate the
disposition of such Registrable Securities in accordance with their
intended method of distribution thereof.
(f) The Company shall promptly notify each Holder, Holders'
Counsel and any underwriter and (if requested by any such Person)
confirm such notice in writing, (i) when a Registration Statement or a
Prospectus or any post-effective amendment or any Prospectus supplement
has been filed and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of
any request by the Commission or any state securities authority for
amendments and supplements to a Registration Statement and Prospectus
or for additional information after the Registration Statement has
become effective, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of a Registration Statement or the
initiation or threatening of any proceedings for that purpose, (iv) of
the issuance by any state securities commission or other regulatory
authority of any order suspending the registration or qualification or
exemption from registration or qualification of any of the Registrable
Securities under state securities or "blue sky" laws or the initiation
of any proceedings for that purpose, (v) if, between the effective date
of a Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to the offering
of such Registrable Securities cease to be true and correct in all
material respects, and (vi) of the happening of any event which makes
any statement of a material fact made in a Registration Statement or
related Prospectus untrue or which requires the making of any changes
in such Registration Statement or Prospectus so that such Registration
Statement or Prospectus will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and, as
promptly as practicable thereafter, prepare and file an amendment to
such Registration Statement with the Commission and furnish to the
Holders and any underwriter a supplement or amendment to such
Prospectus so that, as thereafter deliverable to the purchasers of such
Registrable Securities, such Prospectus will not contain any untrue
statement of a
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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.
(g) The Company shall make generally available to the Holders
an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act no later than 30 days after the end of the 12-month
period beginning with the first day of the Company's first fiscal
quarter commencing after the effective date of a Registration
Statement, which earnings statement shall cover said 12-month period,
and which requirement will be deemed to be satisfied if the Company
timely files complete and accurate information on Forms 10-Q, 10-K and
8-K under the Exchange Act and otherwise complies with Rule 158 under
the Securities Act.
(h) The Company shall promptly use its best efforts to prevent
the issuance of any order suspending the effectiveness of a
Registration Statement, and, if any such order suspending the
effectiveness of a Registration Statement is issued, shall promptly use
its best efforts to obtain the withdrawal of such order at the earliest
possible moment.
(i) The Company shall, if reasonably requested by the managing
underwriter or underwriters, if any, Holders' Counsel, or any Holder
promptly incorporate in a Prospectus supplement or post-effective
amendment such information as such managing underwriter or underwriters
or Holder or Holders' Counsel reasonably requests to be included
therein, including, without limitation, with respect to the Registrable
Securities being sold by such Holder to such underwriter or
underwriters, the purchase price being paid therefor by such
underwriter or underwriters and any other terms of an underwritten
offering of the Registrable Securities to be sold in such offering, and
the Company shall promptly make all required filings of such Prospectus
supplement or post-effective amendment.
(j) The Company shall, as promptly as practicable after the
filing with the Commission of any document which is incorporated by
reference into a Registration Statement (in the form in which it was
incorporated), deliver a copy of each such document to each of the
Holders and to Holders' Counsel.
(k) The Company shall cooperate with the Holders and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates (which shall not bear any
restrictive legends unless required under applicable law) representing
Registrable Securities sold under a Registration Statement to the
purchasers thereof, and enable such Registrable Securities to be in
such denominations and registered in such names as the managing
underwriter or underwriters, if any, or such Holders may request and
keep available and make available to the Company's transfer agent prior
to the effectiveness of such Registration Statement a supply of such
certificates.
(l) The Company shall enter into such customary agreements
(including, if applicable, an underwriting agreement in customary form)
and take such other actions as the Holders or the underwriters retained
by the Holders participating in an underwritten public offering, if
any, may reasonably request in order to expedite or facilitate the
12
disposition of Registrable Securities (the Holders may, at their
option, require that any or all of the representations, warranties and
covenants of the Company to or for the benefit of any underwriters also
be made to and for the benefit of the Holders).
(m) The Company shall promptly make available to each Holder,
any underwriter participating in any disposition of Registrable
Securities pursuant to a Registration Statement, and any attorney,
accountant or other agent or representative retained by any such Holder
or underwriter (collectively, the "Inspectors"), all financial and
other records, pertinent corporate documents and properties of the
Company (collectively, the "Records"), as shall be reasonably necessary
to enable them to exercise their due diligence responsibility, and
cause the Company's officers, directors and employees to supply all
information requested by any such Inspector in connection with such
Registration Statement.
(n) The Company shall furnish to each Holder of Registrable
Securities included in such offering and to each underwriter, if any, a
signed counterpart, addressed to such Holder or underwriter, of (i) an
opinion or opinions of counsel to the Company, and (ii) a comfort
letter or comfort letters from the Company's independent public
accountants, each in customary form and covering matters of the type
customarily covered by opinions or comfort letters, as the case may be.
(o) The Company shall use its best efforts to cause the
Registrable Securities included in a Registration Statement (if the
Company and the Registrable Securities so qualify) (i) to be listed on
each national securities exchange, if any, on which similar securities
issued by the Company are then listed, or (ii) if similar securities of
the Company are not then listed, to be authorized for quotation or
listing, as applicable, on the Nasdaq Stock Market, Inc.'s ("Nasdaq")
National Market.
(p) The Company shall provide a CUSIP number for all
Registrable Securities covered by a Registration Statement which do not
then have a CUSIP number not later than the effective date of such
Registration Statement.
(q) The Company shall cooperate with each Holder and each
underwriter participating in the disposition of Registrable Securities
and their respective counsel in connection with any filings required to
be made with the National Association of Securities Dealers, Inc.
("NASD").
(r) The Company shall, during the period when the Prospectus
is required to be delivered under the Securities Act, promptly file all
documents required to be filed with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act.
(s) The Company shall appoint or maintain a transfer agent and
registrar for all Registrable Securities covered by a Registration
Statement not later than the effective date of such Registration
Statement.
(t) In connection with an underwritten offering, the Company
shall participate, to the extent reasonably requested by the managing
underwriter for the
13
offering or the Holders, in customary efforts to sell the securities
being offered, including without limitation, participating in "road
shows," at the expense of the Holders.
(u) If a Holder proposes to sell a block of Registrable
Securities with a value in excess of $1 million, the Company shall make
members of the management of the Company available for reasonable
selling efforts, including senior management attendance at road shows,
provided, however, that the selling Holder or Holders shall reimburse
the Company for its reasonable out-of-pocket expenses actually incurred
at the request of such selling Holder or Holders in connection with
such selling efforts.
(v) If the Registrable Securities are of a class of securities
that is listed on a national securities exchange, the Company shall
file copies of any Prospectus with such exchange in compliance with
Rule 153 under the Securities Act so that the Holders shall benefit
from the prospectus delivery procedures described therein.
In the case of a Shelf Registration Statement, each Holder, upon
receipt of any notice (a "Suspension Notice") from the Company of the happening
of any event of the kind described in Section 4(f)(vi), shall forthwith
discontinue disposition of the Registrable Securities pursuant to the Shelf
Registration Statement covering such Registrable Securities until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 4(f) or until such Holder is advised in writing (the "Advice") by the
Company that the use of the Prospectus may be resumed, and such Holder has
received copies of any additional or supplemental filings which are incorporated
by reference in the Prospectus, and, if so directed by the Company, such Holder
will, or will request the managing underwriter or underwriters, if any, to,
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
covering such Registrable Securities current at the time of receipt of such
notice; provided, however, that the Company shall not give a Suspension Notice
until after the Shelf Registration Statement has been declared effective and
shall not give more than one Suspension Notice during any period of 12
consecutive months and in no event shall the period from the date on which any
Holder receives a Suspension Notice to the date on which any Holder receives
either the Advice or copies of the supplemented or amended Prospectus
contemplated by Section 4(f) (the "Suspension Period") exceed thirty (30) days.
In the event that the Company shall give any Suspension Notice, (i) the Company
shall use its best efforts and take such actions as are reasonably necessary to
render the Advice and end the Suspension Period as promptly as practicable and
(ii) the time periods for which a Shelf Registration Statement is required to be
kept effective pursuant to Section 2 hereof shall be extended by the number of
days during the Suspension Period. If any Suspension Period exceeds thirty (30)
days or more than one Suspension Notice is given during any 12 consecutive
months, the Company shall pay liquidated damages to each Holder of Registrable
Securities in an amount equal to $1.00 per 1,000 shares of the Registrable
Securities included in the Shelf Registration Statement per week beginning on
the 31st day of such Suspension Period or the date of such additional Suspension
Notice, as the case may be. The weekly liquidated damages payable by the Company
to the Holders as a result of the continuance of a Suspension Period beyond 30
days or as a result of the giving of more than one Suspension Notice during any
12 months shall increase by an amount equal to $.10 per 1,000 shares of the
Registrable Securities two weeks after the event triggering such liquidated
damages and shall thereafter increase by an amount equal to $.10 per 1,000
shares of the Registrable Securities at the end of each subsequent two week
period for so long as
14
the event triggering such liquidated damages has not been eliminated, up to a
limit of $3.20 per 1,000 shares. The Company shall pay the liquidated damages
due with respect to any Registrable Securities at the end of each week during
which such damages accrue. Liquidated damages shall be paid to the Holders of
Registrable Securities entitled to receive such liquidated damages by wire
transfer in immediately available funds to the accounts designated by such
Holders.
If any Registration Statement refers to any Holder by name or otherwise
as the holder of any securities of the Company, then such Holder shall have the
right to require (i) the insertion therein of language, in form and substance
reasonably satisfactory to such Holder and the Company, to the effect that the
holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such Holder
will assist in meeting any future financial requirements of the Company, or (ii)
in the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar Federal or state securities or
"blue sky" statute and the rules and regulations thereunder then in force, the
deletion of the reference to such Holder.
Section 5. Registration Expenses. Any and all expenses incident to the
Company's performance of or compliance with this Agreement, including without
limitation, all Commission and securities exchange, Nasdaq or NASD registration,
listing and filing fees, all fees and expenses incurred in connection with
compliance with state securities or "blue sky" laws (including reasonable fees
and disbursements of one counsel for any underwriters or Holder in connection
with the state securities or "blue sky" qualifications of the Registrable
Securities), printing expenses, messenger and delivery expenses, internal
expenses (including, without limitation, all salaries and expenses of the
Company's officers and employees performing legal or accounting duties), all
expenses for word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, the fees and
expenses incurred in connection with the listing of the Registrable Securities,
the fees and disbursements of counsel for the Company and of the independent
certified public accountants of the Company (including the expenses of any
comfort letters or costs associated with the delivery by independent certified
public accountants of a comfort letter or comfort letter requested pursuant to
Section 4(n), Securities Act liability insurance (if the Company elects to
obtain such insurance), the reasonable fees and expenses of any special experts
or other Persons retained by the Company in connection with any registration,
the reasonable fees and disbursements of one Holders' counsel, the reasonable
fees and disbursements of one counsel to Holders advised by DDJ Capital
Management, and any reasonable out-of-pocket expenses of the Holders and their
agents, including any reasonable travel costs (but excluding brokerage and
underwriting discounts, fees and commissions and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities) (all such
expenses being herein called "Registration Expenses"), will be borne by the
Company whether or not the Shelf Registration Statement or Piggy-Back
Registration to which such expenses relate becomes effective.
15
Section 6. Holdback Agreement.
(a) Subject to the conditions set forth below in this Section
6, each Holder agrees that, in connection with a Piggy-Back Registration which
is an underwritten offering and pursuant to which the majority of the securities
to be sold are to be sold for the account of the Company, if requested by the
Company and the managing underwriter of such offering, then such Holder shall
not, to the extent so requested, directly or indirectly sell, transfer or
dispose of any Common Stock (or other securities) of the Company held by such
Holder within seven (7) days prior or one hundred eighty (180) days (or such
lesser period as the managing underwriter may permit) after the effective date
of the registration statement for the Piggy-Back registration except pursuant to
such Piggy-Back Registration. If requested by the managing underwriter, the
Holders shall execute a separate agreement to the foregoing effect, in form
reasonably satisfactory to the Holders, the Company and the managing
underwriter. The Company may impose stop-transfer instructions with respect to
the securities subject to the foregoing restriction. Notwithstanding the
foregoing, any obligation of the Holders under this Section 6 or any agreement
entered into pursuant to this Section 6 shall immediately terminate upon their
receipt from the Company of the redemption notice described in Section
A.5(a)(iii) of the Certificate of Designation of the Company's Series B
Preferred Stock. Notwithstanding the foregoing, State Street Bank & Trust, in
its capacity as Trustee for General Motors Employees Global Group Pension Trust,
shall only be subject to the limitations of this Section with respect to
accounts managed or advised by DDJ Capital Management, LLC.
(b) It shall be a condition to the Holders' holdback
obligation and obligation to enter into separate agreements under Section 6(a)
that all officers, directors and Persons who beneficially own at least 10% of
the Company's Common Stock (calculated in the same manner as required by Section
13(d) of the Exchange Act and the regulations thereunder except that all
securities convertible into or exercisable or exchangeable into the Company's
Common Stock ("Convertible Securities") owned by such Persons shall be included
in the calculation regardless of whether such Convertible Securities are
exercisable within 60 days) (collectively the "Holdback Parties") (i) are
subject to the same holdback obligations and enter into similar separate
agreements and (ii) have not received any additional consideration in any form
for entering into such obligations and agreements.
(c) The Company and the managing underwriter shall notify the
Holders in the event that any restriction contained herein is waived for the
benefit of any Holdback Party or any agreement entered into pursuant to Section
6(a) or similar agreement entered into by any Holdback Party is amended in any
way, including shortening the 180 day holdback period, and shall provide to the
Holders the benefit, if they so choose, of any such waiver or amendment. If any
Holdback Party is permitted to sell a certain number of shares of Common Stock
prior to the expiration of the 180 day holdback period, each of the Holders
shall be entitled to be released from its holdback obligations and permitted to
sell a number of shares of Common Stock equal to the greater of (i) the number
of shares that the released Person is permitted to sell or (B) the percentage of
such released Person's shares that the released Person is permitted to sell.
16
Section 7. Selling Holders' Obligations.
(a) Provision of Information. It shall be a condition
precedent to the obligation of the Company hereunder to register the Registrable
Securities of any Holder, that such Holder, and any underwriter selected by such
Holder in an underwritten public offering, furnish to the Company such
information regarding itself, the Registrable Securities held by it, the
intended method of distribution of such Securities and such other information as
the Company shall from time to time reasonably request and that shall be
reasonably required to effect the registration of such Holder's Registrable
Securities.
(b) Underwriting Agreement. Each Holder participating in an
underwritten offering pursuant to Section 2 or 3 agrees to enter into a
customary underwriting agreement on terms reasonably satisfactory to the
managing underwriter.
Section 8. Indemnification and Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, each Holder,
its partners, officers, directors, trustees, stockholders, employees, agents and
investment advisers, and each Person who controls such Holder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act, or
is under common control with, or is controlled by, such Holder, together with
the partners, officers, directors, trustees, stockholders, employees, agents and
investment advisors of such controlling Person (collectively, the "Controlling
Persons"), from and against all losses, claims, damages, liabilities and
expenses (including, without limitation, any legal or other fees and expenses
incurred by any Holder or any such Controlling Person in connection with
defending or investigating any action or claim in respect thereof)
(collectively, the "Damages") to which such Holder, its partners, officers,
directors, trustees, stockholders, employees, agents and investment advisers,
and any such Controlling Person, may become subject under the Securities Act or
otherwise, insofar as such Damages (or proceedings in respect thereof) arise out
of or are based upon any untrue or alleged untrue statement of material fact
contained in any Registration Statement (or any amendment thereto) pursuant to
which Registrable Securities were registered under the Securities Act, including
all documents incorporated therein by reference, or are caused by any omission
or alleged omission to state therein a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, or arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or are caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided, however,
that the Company shall not be liable for Damages to any Holder under this
Section 8(a) to the extent that any such Damages (i) arise out of or are based
upon any such untrue statement or omission which is based upon information
relating to such Holder furnished in writing to the Company by such Holder
expressly for use in any such Registration Statement (or any amendment thereto)
or Prospectus (or amendment or supplement thereto); or (ii) were caused by the
fact that such Holder sold Securities to a Person as to whom it shall be
established that there was not sent or given, or deemed sent or given pursuant
to Rule 153 under the Securities Act, at the time of or prior to the written
confirmation of such sale, a copy of the Prospectus as then
17
amended or supplemented if, and only if, (a) the Company has previously
furnished such amended or supplemented Prospectus to such Holder and to the
exchange, if any, on which the Registrable Securities are listed, and (b) such
Damages were caused by any untrue statement or omission or alleged untrue
statement or omission contained in the Prospectus so delivered which was
corrected in such amended or supplemented Prospectus. In connection with an
underwritten offering, the Company will indemnify the underwriters thereof,
their officers and directors and each Person who controls such underwriters
(within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act) to the same extent as provided above for the Holders of
Registrable Securities with respect to information provided by the underwriter
specifically for inclusion therein.
(b) Indemnification by the Holders. Each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, its
directors and officers and each Person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against all Damages to the same extent as the foregoing
indemnity from the Company to such Holder, but only to the extent such Damages
arise out of or are based upon any untrue statement of a material fact contained
in any Registration Statement (or any amendment thereto) or Prospectus (or any
amendment or supplement thereto) or are caused by any omission to state therein
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, which untrue statement
or omission is based upon information relating to such Holder furnished in
writing to the Company by such Holder expressly for use in any such Registration
Statement (or any amendment thereto) or any such Prospectus (or any amendment or
supplement thereto); provided, however, that such Holder shall not be obligated
to provide such indemnity to the extent that such Damages result from the
failure of the Company to promptly amend or take action to correct or supplement
any such Registration Statement or Prospectus on the basis of corrected or
supplemental information furnished in writing to the Company by such Holder
expressly for such purpose. In no event shall the liability of any Holder of
Registrable Securities hereunder be greater in amount than the amount of the
proceeds received by such Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) Indemnification Procedures. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to either paragraph
(a) or (b) above, such Person (the "indemnified party") shall promptly notify
the Person against whom such indemnity may be sought (the "indemnifying party")
in writing and the indemnifying party shall have the right to assume the defense
and retain counsel reasonably satisfactory to the indemnified party to represent
the indemnified party and any others the indemnifying party may designate in
such proceedings and shall pay the fees and disbursements of such counsel
relating to such proceeding. The failure of an indemnified party to notify the
indemnifying party with respect to a particular proceeding shall not relieve the
indemnifying party from any obligation or liability (i) which it may have
pursuant to this Agreement if the indemnifying party is not substantially
prejudiced by such failure to so notify it or (ii) which it may have otherwise
than pursuant to this Agreement. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to
18
the retention of such counsel, or (ii) the indemnifying party fails promptly to
assume the defense of such proceeding or fails to employ counsel reasonably
satisfactory to such indemnified party, or (iii) (A) the named parties to any
such proceeding (including any impleaded parties) include both such indemnified
party or an Affiliate of such indemnified party and any indemnifying party or an
Affiliate of such indemnifying party, (B) there may be one or more defenses
available to such indemnified party or any Affiliate of such indemnified party
that are different from or additional to those available to any indemnifying
party or any Affiliate of any indemnifying party and (C) such indemnified party
shall have been advised by such counsel that there may exist a conflict of
interest between or among such indemnified party or any Affiliate of such
indemnified party and such indemnifying party or any Affiliate of such
indemnifying party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel of its
choice at the expense of the indemnifying party, the indemnifying party shall
not have the right to assume the defense thereof and such counsel shall be at
the expense of the indemnifying party, it being understood, however, that unless
there exists a conflict among indemnified parties, the indemnifying parties
shall not, in connection with any one such proceeding or separate but
substantially similar or related proceedings in the same jurisdiction, arising
out of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (together with appropriate
local counsel) at any time for such indemnified parties. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but, if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify each
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of each indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which such indemnified party is a party, and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on all claims that are the subject matter of such proceeding with
no payment by such indemnified party of consideration in connection with such
settlement.
(d) Contribution. If the indemnification from the indemnifying
party provided for in this Section 8 is found, pursuant to a final judicial
determination not subject to appeal, to be unavailable to an indemnified party
hereunder or insufficient in respect of any Damages incurred by such indemnified
party, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the Damages paid or payable by such indemnified party
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified parties in connection with the actions or
omissions that resulted in such Damages, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
parties shall be determined by reference to, among other things, whether any
action or omission in question, including any untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact,
has been made by, or relates to information supplied by, such indemnifying party
or indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the Damages referred to above shall be
deemed to include, subject to the limitations set forth in Section 8(c), any
legal or other expenses reasonably incurred by such party in connection with any
investigation or proceeding.
19
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public (less any underwriting discounts or
commissions) exceeds the amount of any damages which such underwriter has
otherwise been required to pay by reason of an untrue or alleged untrue
statement or omission or alleged omission, and no selling Holder shall be
required to contribute any amount in excess of the amount by which the total net
proceeds received by such selling Holder with respect to Registrable Securities
sold by such selling Holder exceeds the amount of any damages which such selling
Holder has otherwise been required to pay by reason of an untrue statement or
alleged untrue statement or omission or alleged omission. Each Holder's
obligation to contribute pursuant to this Section 8(d) is several and not joint
and shall be determined by reference to the proportion that the proceeds of the
offering received by such Holder bears to the total proceeds of the offering
received by all the Holders. 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 remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies that may otherwise be available to
any indemnified party at law or in equity.
Notwithstanding the foregoing, if indemnification is available under
paragraph (a) or (b) of this Section 8, the indemnifying parties shall indemnify
each indemnified party to the full extent provided in such paragraphs without
regard to the relative fault of said indemnifying party or indemnified party or
any other equitable consideration provided for in this Section 8(d).
Section 9. Rule 144. The Company covenants that it will file any
reports required to be filed by it under the Securities Act and the Exchange
Act, and the rules and regulations adopted by the Commission thereunder (or, if
the Company is not required to file such reports, it will, upon the request of
any Holder, make publicly available other information so long as necessary to
permit sales of the Registrable Securities under Rule 144 under the Securities
Act), and it will take such further action as any Holder may reasonably request,
all to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
as such Rule may be amended from time to time, or (b) any successor rule or
similar provision or regulation hereafter adopted by the Commission. Upon the
request of any Holder, so long as such Holder owns any Registrable Securities,
the Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
Section 10. Rule 144A. The Company covenants that it will file all
reports required to be filed by it under the Securities Act and the Exchange
Act, and the rules and regulations adopted by the Commission thereunder (or if
the Company is not required to file such reports, it will, upon the request of
any Holder, make available other information so long as necessary to permit
sales of the Registrable Securities pursuant to Rule 144A under the Securities
Act), and it will take such further action as any Holder may reasonably request,
all to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144A, as such rule may be
amended from time to time, or (b) any successor rule or similar provision or
regulation hereafter adopted by the Commission.
20
Section 11. Transfer of Registration Rights.
The right to register Registrable Securities granted to the Holders
pursuant to this Agreement may be transferred (but only with all related
obligations) by a Holder to any Person that acquires Registrable Securities, but
only if (i) the transferring Holder gives the Company written notice of such
transfer, identifying the name and address of the transferee and the securities
involved; and (ii) the transferee agrees in writing to be bound by the terms,
conditions and obligations of this Agreement.
Section 12. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered
into nor will the Company on or after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's other issued and outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in interest of the outstanding Registrable Securities
affected by such amendment, modification, supplement, waiver or consent;
provided, however, that, no amendment, modification, supplement, waiver or
consent to any departure from the provisions of Section 4 hereof (other than any
immaterial amendment, modification, supplement, waiver or consent) shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally or sent by telecopier, registered or certified
mail (return receipt requested), postage prepaid or courier to the parties at
their respective addresses set forth on the signature pages hereof (or at such
other address for any party as shall be specified by like notice, provided that
notices of a change of address shall be effective only upon receipt thereof).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five (5) Business
Days after being deposited in the mail, postage prepaid, if mailed; by confirmed
receipt of transmission, if telecopied; and on the next Business Day if timely
delivered to a courier guaranteeing overnight delivery.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, permitted assigns and transferees
of each of the parties.
(e) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
21
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
principles or rules of conflicts of law.
(h) 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
Holders shall be enforceable to the fullest extent permitted by law.
(i) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be the
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(j) Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement or where any provision hereof is validly
asserted as a defense, the successful party shall, to the extent permitted by
applicable law, be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
(k) Further Assurances. Each party shall cooperate and take
such action as may be reasonably requested by another party in order to carry
out the provisions and purposes of this Agreement and the transactions
contemplated hereby.
(l) Remedies. In the event of a breach or a threatened breach
by any party to this Agreement of its obligations under this Agreement, any
party injured or to be injured by such breach will be entitled to specific
performance of its rights under this Agreement or to injunctive relief, in
addition to being entitled to exercise all rights provided in this Agreement and
granted by law. The parties agree that the provisions of this Agreement shall be
specifically enforceable, it being agreed by the parties that remedies at law
for violations hereof, including monetary damages, are inadequate and that the
right to object in any action for specific performance or injunctive relief
hereunder on the basis that a remedy at law would be adequate is waived.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Metretek Technologies, Inc.
By: /s/ A. Xxxxxxx Xxxxxxx
---------------------------------
Name: A. Xxxxxxx Xxxxxxx
Title: Executive Vice President
Notice Information: World Trade Center
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn:
Telecopier:
State Street Bank & Trust, solely in its capacity
as Trustee for General Motors Employees Global
Group Pension Trust as directed by DDJ Capital
Management, LLC, and not in its individual capacity
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
State Street Bank and Trust Company
DDJ Canadian High Yield Fund
By: DDJ Capital Management, LLC,
its attorney-in-fact
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Member
23
B III-A Capital Partners, L.P.
By: GP III-A, LLC, its General Partner
By: DDJ Capital management, LLC, Manager
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Member
Notice Information: 000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx Xxxxxxx, Esq.
Telecopier: (000) 000-0000
