EXHIBIT 10.22
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT, dated as of January 6, 1999 (this
"Agreement"), among XXXXXXX XXXXXXXX XXXXXXXX CO., a Massachusetts business
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trust having its principal office at Prudential Tower, 000 Xxxxxxxx Xxxxxx,
Xxxxxx, XX 00000 (the "Company"), POSITANO PARTNERS LTD., a Bermuda exempt
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company ("Positano"), Xxxxxxx X. Xxxxxxx ("MB") and the persons listed on
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Schedule 1 hereto (such persons, together with Positano and MB, the "Holders")
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(the Holders, together with the Company, the "Parties").
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WHEREAS, the Parties and certain other parties have entered into a
Recapitalization Agreement, dated as of November 28, 1998 (the "Recapitalization
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Agreement"), providing for the recapitalization (the "Recapitalization") of the
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Company and its related entities;
WHEREAS, each Holder will hold Company Shares or options to acquire
Company Shares upon consummation of the Recapitalization; and
WHEREAS, the Recapitalization Agreement provides that the Parties
shall enter into this Agreement in connection with the closing of the
transactions contemplated by the Recapitalization Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained in this Agreement, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein, have
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the meanings set forth below.
"Commission" means the Securities and Exchange Commission.
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"Company Shares" means the units of beneficial interest in the
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Company.
"Demand Registration" has the meaning specified in Section 2.01(a).
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Initial Public Offering" means the sale of Company Shares by the
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Company or one or more Holders in an underwritten public offering registered
under the Securities Act.
"Piggyback Registration" has the meaning specified in Section 2.02(a).
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"Registrable Securities" means (a) Company Shares now beneficially
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owned by any Holder or hereafter acquired upon the exercise of BSH Options (as
defined in the Recapitalization Agreement) and (b) any securities issued or
issuable directly or indirectly in
respect of such Company Shares by way of conversion, exchange, share dividend,
share split or combination, recapitalization, merger, consolidation, other
reorganization or otherwise; provided, that any security referred to in clause
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(a) or (b) shall cease to be a Registrable Security when (a) a registration
statement covering such security has been declared effective by the Commission
and such security has been disposed of pursuant to such effective registration
statement, (b) such security is sold or may be sold pursuant to Rule 144
promulgated under the Securities Act (or another exemption from the registration
requirements of the Securities Act), or (c) such security shall have ceased to
be outstanding.
"Securities Act" means the Securities Act of 1933, as amended.
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ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1. Demand Registration. (a) (1) Positano shall have the
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right at any time and from time to time to make up to three requests that the
Company register, in an underwritten public offering or otherwise, under the
Securities Act, all or part of the Registrable Securities held by it; provided,
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that the registration resulting from the first such request by Positano, if made
prior to an Initial Public Offering, shall constitute an Initial Public
Offering, and (2) at any time following an Initial Public Offering, MB shall
have the right to make up to one request that the Company register, in an
underwritten public offering or otherwise, under the Securities Act, all or part
of his Registrable Securities; provided, that the expected market value of the
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Registrable Securities to be offered by MB is at least equal to $15 million (any
registration resulting from a request described in clause (1) or (2) a "Demand
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Registration"). A request for a Demand Registration shall specify the number of
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shares of Registrable Securities proposed to be sold. A registration shall not
count as a Demand Registration until (a) the registration statement relating
thereto has been declared effective by the Commission and (b) the Holder making
the demand for registration is able to register and sell at least 75% of the
Registrable Securities requested to be included in such registration.
(b) In the event that Positano makes its first request for a Demand
Registration prior to an Initial Public Offering, the Company shall, promptly
after receipt of such request (but conditioned, to the extent practicable, on
consummation of the Initial Public Offering), cause the Company to be
reconstituted into a corporation organized under the laws of the State of
Delaware, or any other jurisdiction selected by Positano, and to convert the
Company Shares into shares of common stock of such corporation by merger or
otherwise pursuant to a transaction which will be tax-free to the holders of
Company Shares.
(c) Promptly (but in no event more than 10 days) after receipt of a
request for a Demand Registration, the Company shall provide notice of such
request to all Holders other than those who made the request under Section
2.01(a), and (1) each such Holder shall have the right, within 10 days after the
date of receipt of such notice from the Company, to request that the Company
include in the offering to which the Demand Registration relates all or a
portion of such Holder's Registrable Securities and (2) in the case of a request
by MB for a Demand
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Registration, Positano shall have the right, within 10 days after the date of
receipt of notice of such request from the Company, to request that the Company
defer such request by MB for a Demand Registration to a date up to 180 days
after the date of such request, and if so requested by Positano, the Company
shall not act on such request by MB prior to the date requested by Positano.
(d) The Company shall not include in any Demand Registration any
securities that are not Registrable Securities without the prior written consent
of the Holder making the demand for registration. If a Demand Registration is an
underwritten offering and the managing underwriters advise the Company in
writing that, in their opinion, the number or class of Registrable Securities
and, if permitted hereunder, other securities requested to be included in such
offering, exceeds the number or class of Registrable Securities and other
securities, if any, which can be sold therein without adversely affecting the
marketability of the offering, (i) in the case of a Demand Registration pursuant
to the first request by Positano under Section 2.01(a), where such Demand
Registration is effected prior to an Initial Public Offering, the Company shall
include in such Demand Registration (A) first, the number of Registrable
Securities requested to be included in such Demand Registration by Positano, (B)
second, the number of equity securities to be registered for the account of the
Company, (C) third, the number of Registrable Securities requested to be
included in such Demand Registration by any other Holders pro rata, if
necessary, among such other Holders based on the number of Registrable
Securities owned by each such other Holder and (D) fourth, any other securities
of the Company requested to be included in such registration pro rata, if
necessary, on the basis of the number of such other securities owned by each
holder of such other securities and (ii) in the case of any other Demand
Registration, the Company shall include in such Demand Registration (A) first,
the number of Registrable Securities requested to be included in such
registration by any Holders pro rata, if necessary, among such Holders based on
the number of Registrable Securities owned by each such Holder and (B) second,
any other securities of the Company requested to be included in such
registration pro rata, if necessary, on the basis of the number of such other
securities owned by each holder of such other securities.
(e) Positano shall select the book-running and other managing
underwriters in connection with an offering pursuant to a Demand Registration
(other than an MB Demand Registration in which Positano is not offering a
greater number of Company Shares than MB) and any additional investment bankers
and managers to be used in connection with the offering, in each case which
shall be reasonably satisfactory to the Company.
SECTION 2.2. Piggyback Registration. (a) At any time that the
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Company proposes to register any of its common equity securities under the
Securities Act for sale solely for cash, for its own account or pursuant to a
Demand Registration, and the registration form to be used may be used for the
registration of Registrable Securities (each a "Piggyback Registration"), the
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Company shall give written notice of such proposed registration to the Holders
as soon as practicable (but in no event less than 20 days before the anticipated
filing date of the registration statement effecting such registration), and the
Company shall include in any such registration by it all Registrable Securities
with respect to which it has received written requests for inclusion therein
within 10 days after receipt by such Holders of such written notice
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from the Company. If any Piggyback Registration is an underwritten offering, the
Company and Positano shall select the book-running and other managing
underwriters in connection with such offering and any additional investment
bankers and managers to be used in connection with the offering.
(b) If a Piggyback Registration is an underwritten primary
registration on behalf of the Company, the Company shall include in such
registration all securities requested to be included in such registration;
provided, that if the managing underwriters advise the Company in writing that
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in their opinion the number or class of such securities requested to be included
in such registration exceeds the number or class which can be sold in such
offering without adversely affecting the marketability of the offering, the
Company shall include in such registration (1) first, the securities that the
Company proposes to sell, (2) second, to the extent Registrable Securities
requested for inclusion therein need to be reduced as a result of such advice,
the Registrable Securities requested to be included in such registration, pro
rata among the Holders of such Registrable Securities on the basis of the number
of Registrable Securities owned by each such Holder and (3) third, other
securities, if any, requested to be included in such registration, pro rata
among the holders of such securities on the basis of the number of such
securities owned by each such holder.
(c) If a Piggyback Registration is in connection with a Demand
Registration, the restrictions set forth in Section 2.01(d) shall apply. If a
Piggyback Registration is an underwritten secondary registration on behalf of
holders of securities of the Company (and is not a Demand Registration) and the
managing underwriters advise the Company in writing that in their opinion the
number or class of securities requested to be included in such registration
exceeds the number or class which can be sold in such offering without adversely
affecting the marketability of the offering, the Company shall include in such
registration (1) first, the Registrable Securities requested to be included in
such registration, pro rata among the Holders of such Registrable Securities on
the basis of the number of Registrable Securities owned by each such Holder and
(2) second, any other securities requested to be included in such registration
not covered by clause (1) above pro rata among the holders of such securities on
the basis of the number of such securities owned by each such holder.
(d) The Company shall not be obligated to include any Registrable
Securities in a registration statement (1) filed on Forms S-4 or S-8 or such
other similar successor forms then in effect under the Securities Act, (2)
pursuant to which the Company is offering to exchange its own securities or (3)
relating solely to dividend reinvestment plans.
(e) Any Piggyback Registration relating to a sale of securities by
the Company for its own account shall be managed by the Company; the Company
shall have the power to select the managing underwriter(s) for such offering,
and shall in consultation with the managing underwriter(s) have the power to
determine the offering price, the underwriting discounts and commissions, the
terms of the underwriting agreement, the timing of the registration and related
offering, counsel to the Company, and all other administrative matters related
to the registration and related offering. To the extent that Holders participate
in such a registration and related offering, such Holders shall enter into, and
sell their Registrable
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Securities only pursuant to, the underwriting arranged by the Company, and shall
either commit to attend the closing of the offering and take such other actions
as may be reasonably necessary to effect their participation in the offering and
to provide any assurances reasonably requested by the Company and the managing
underwriter(s) in that regard, or shall deliver to the Company in custody
certificates representing all Registrable Securities to be included in the
registration and shall execute and deliver to the Company a custody agreement
and a power of attorney, each in form and substance appropriate for the purpose
of effecting their participation in such registration.
ARTICLE III
REGISTRATION
SECTION 3.1. Registration Procedures. Subject to the limitations in
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Article II, whenever the Holders have requested that any Registrable Securities
be registered pursuant to this Agreement, the Company shall use its reasonable
best efforts to effect the registration and sale of such Registrable Securities
in accordance with the intended method of disposition thereof, and pursuant
thereto the Company shall as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
with respect to such Registrable Securities and use its reasonable best efforts
to cause such registration statement to become effective;
(b) 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 for
a period of not less than six months and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such registration
statement;
(c) if requested, prior to filing such registration statement or any
amendment or supplement thereto, furnish to the selling Holders and each
managing underwriter, if any, copies thereof, and thereafter furnish to the
selling Holders and each such underwriter, if any, such number of copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference therein)
and the prospectus included in such registration statement (including each
preliminary prospectus) as such Holders or such underwriter may reasonably
request in order to facilitate the sale of the Registrable Securities;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; provided, that the Company shall not be
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required to (1) qualify generally to do business in any jurisdiction where it
would not otherwise be required
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to qualify but for this subsection, (2) subject itself to taxation in any such
jurisdiction, or (3) consent to general service of process (i.e., service of
process which is not limited solely to securities law violations) in any such
jurisdiction;
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, promptly prepare a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus shall not contain
an untrue statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading;
(f) notify each seller of such Registrable Securities and, if
requested by any such seller of Registrable Securities, confirm such notice in
writing, (1) when the prospectus or any prospectus supplement or post-effective
amendment included in such registration statement has been filed, and, with
respect to any registration statement or any post-effective amendment thereto,
when the same has become effective, (2) of any request by the Commission for
amendments to such registration statement or amendments or supplements to the
prospectus or for additional information relating thereto, (3) of the issuance
by the Commission of any stop order suspending the effectiveness of the
registration statement under the Securities Act or of the suspension by any
state securities commission of the qualification of such Registrable Securities,
as applicable, for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes;
(g) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the Nasdaq National Market (or
such other national securities exchange as the Board of Directors of the Company
determines provides the best liquidity on which such Registrable Securities may
be listed), if so requested by the holders of a majority of the Registrable
Securities being sold, or if so requested by the managing underwriter of an
offering pursuant to such registration statement;
(h) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(i) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities;
(j) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the managers,
officers, members, employees and independent accountants of the Company to
supply
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all information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
(k) otherwise use its reasonable best efforts to 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 day of
the first full calendar quarter of the Company after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(l) permit any Holder of Registrable Securities (which Holder, in the
Company's sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company) to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such Holder and its counsel should be included;
(m) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any securities included in such registration statement for sale in any
jurisdiction, use its reasonable best efforts promptly to obtain the withdrawal
of such order;
(n) use its reasonable best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the sellers thereof to consummate the disposition of such Registrable
Securities;
(o) obtain a "cold comfort" letter from the independent public
accountants of the Company in customary form and covering such matters of the
type customarily covered by "cold comfort" letters as the holders of a majority
of the Registrable Securities being sold reasonably request;
(p) cooperate, and cause its management to cooperate, in the selling
effort of such offering, and, if the holders of a majority of the Registrable
Securities being sold in such offering reasonably request, coordinate and
conduct a "road show" in connection with such offering; and
(q) otherwise facilitate such registration and related offering.
The Company may require the Holders promptly to furnish in writing to
the Company such information regarding the Holders' plan of distribution of the
Registrable Securities and other information as the Company may from time to
time reasonably request or as may be legally required in connection with such
registration.
SECTION 3.2. Registration Expenses. In connection with any Demand
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Registration or Piggyback Registration, each participating Holder shall be
responsible for any
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underwriting discounts or commission that may be payable in connection with the
sale of its respective securities. The Company shall pay all other expenses
incurred in connection with such registration, including, but not limited to,
(1) all filing fees with the Commission, (2) fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the securities), (3)
printing expenses, (4) the fees and expenses incurred in connection with the
listing of the securities, (5) fees and expenses of counsel and independent
certified public accountants for the Company (including the expenses of any
comfort letters pursuant to Section 3.01(o) hereof), (6) the reasonable fees and
expenses of any additional experts retained by the Company in connection with
such registration and (7) fees and expenses of one counsel to the selling
Holders to be selected by Positano, if Positano is a selling Holder.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
SECTION 4.1. Indemnification by the Company. The Company agrees to
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indemnify and hold harmless each Holder, its employees, officers and directors,
and each person, if any, who controls such Holder within the meaning of either
Section 15 of the Securities Act or section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus relating to the Registrable Securities (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) 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 not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by or on behalf of such Holder
expressly for use therein; provided, however, that this indemnity agreement with
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respect to any preliminary prospectus shall not inure to the benefit of any
Holder if a copy of the current prospectus was not provided to a purchaser and
such current prospectus would have cured the defect giving rise to such loss,
claim, damage or liability or for any sales occurring after the Company has
informed such Holder under Section 3.01(e) and prior to the delivery by the
Company of any supplement or amendment to such prospectus. The Company also
agrees to indemnify any underwriters of Registrable Securities, their officers
and directors and each person who controls such underwriters on substantially
the same basis as that of the indemnification of the Holders provided in this
Section 4.01.
SECTION 4.2. Indemnification by the Holders. Each Holder agrees to
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indemnify and hold harmless the Company, its officers and directors, 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 to the same extent as
the foregoing indemnity from the Company to the Holders, but only with reference
to information furnished in writing by or on behalf of such Holder expressly for
use in any registration statement or prospectus relating to the Registrable
Securities, or any amendment or supplement thereto, or any preliminary
prospectus.
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Each Holder also agrees to indemnify and hold harmless underwriters of
Registrable Securities, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Company provided in this Section 4.02. Notwithstanding
anything to the contrary in this Agreement, the obligation of each Holder to
indemnify according to this Agreement shall be individual to each Holder and
shall be limited to the net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such registration statement.
SECTION 4.3. Conduct of Indemnification Proceedings. In case any
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proceeding (including any governmental investigation) shall be instituted
involving any Party in respect of which indemnity may be sought pursuant to
Section 4.01 or 4.02, such Party (the "Indemnified Party") shall promptly notify
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the Party against whom such indemnity may be sought (the "Indemnifying Party")
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in writing and the Indemnifying Party, upon the request of the Indemnified
Party, shall retain counsel reasonably satisfactory to such Indemnified Party to
represent such Indemnified Party and any others the Indemnifying Party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. 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 (1) the
Indemnifying Party and the Indemnified Party shall have mutually agreed to the
retention of such counsel or (2) the named parties to any such proceeding
(including any impleaded parties) include both the Indemnified Party and the
Indemnifying Party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for all such Indemnified Parties, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Indemnified Parties, such firm shall be
designated in writing by the 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 shall indemnify and hold harmless such
Indemnified Parties from and against any loss or liability (to the extent stated
above) by reason of such settlement or judgment.
SECTION 4.4. Contribution. (a) To the extent any indemnification
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by an Indemnifying Party to an Indemnified Party is prohibited or limited by
law, the Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of such Indemnifying Party and Indemnified
Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of material
fact or omission or alleged omission to state a material fact, has been made by,
or relates to information supplied by, such Indemnifying Party or Indemnified
Party, and such Party's relative intent, knowledge, access to information and
opportunity to correct or prevent such
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action. The amount paid or payable by a Party as a result of the losses, claims,
damages or liabilities referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such Party in connection with any
investigation or proceeding.
(b) The Parties agree that it would not be just and equitable if
contribution pursuant to this Section 4.04 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Party guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Party
who was not guilty of such fraudulent misrepresentation.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Participation in Underwritten Registrations. No
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Holder may participate in any underwritten registered offering contemplated
hereunder unless such Holder (a) agrees to sell its securities on the basis
provided in any underwriting arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms hereof and of such
underwriting arrangements.
SECTION 5.2. Rule 144. The Company covenants that from and after
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an Initial Public Offering it shall use its reasonable best efforts to file any
reports required to be filed by it under the Securities Act and the Exchange Act
and that it shall take such further action as the Holders may reasonably
request, all to the extent required from time to time to enable the Holders to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rule 144 under the Securities Act,
as such rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any Holder, the Company
shall promptly deliver to the Holders a written statement as to whether it has
complied with such requirements.
SECTION 5.3. Holdback Agreements. (a) To the extent not
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inconsistent with applicable law, each Holder agrees not to effect any public
sale or distribution (including sales pursuant to Rule 144) of equity securities
of the Company or any securities convertible into or exchangeable or exercisable
for such securities, during the seven days prior to and the period of up to 180
days beginning on the effective date of any Demand Registration or Piggyback
Registration for a public offering to be underwritten on a firm commitment basis
in which Registrable Securities are included (except as part of such
underwritten registration), unless the underwriters managing the registered
public offering otherwise agree.
(b) The Company agrees (1) not to effect any public sale or
distribution (including sales pursuant to Rule 144) of its equity securities, or
any securities convertible into or exchangeable or exercisable for such
securities, during the seven days prior to and the period of up to 180 days
beginning on the effective date of any Demand Registration or Piggyback
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Registration for a public offering to be underwritten on a firm commitment basis
in which Registrable Securities are included (except as part of such
underwritten registration or pursuant to registrations on Forms S-4 or S-8 or
any successor forms), unless the underwriters managing the registered public
offering otherwise agree, and (2) to use its reasonable best efforts to cause
each other holder of at least 5% (on a fully diluted basis) of equity securities
of the Company or any securities convertible into or exchangeable or exercisable
for such equity securities, purchased from the Company at any time after the
date hereof (other than in a registered public offering) to agree not to effect
any public sale or distribution (including sales pursuant to Rule 144) of any
such securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
SECTION 5.4. Successors and Assigns. This Agreement shall inure to
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the benefit of and be binding upon the successors, assigns and transferees of
Positano and the Company but no other Holder shall be permitted to assign any
rights or obligations hereunder. If any successor, assignee or transferee of
Positano shall acquire Registrable Securities in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held subject
to all of the terms of this Agreement, and by taking and holding such
Registrable Securities such person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and to receive the benefits hereof. For purposes of this Agreement, "successor"
for any entity other than a natural person shall mean a successor to such entity
as a result of such entity's merger, consolidation, liquidation, dissolution,
sale of substantially all of its assets, or similar transaction.
SECTION 5.5. Termination. (a) This Agreement shall be terminated
-----------
upon the earlier to occur of (1) the sale of all Registrable Securities by the
Holders and (2) the mutual consent of the Parties; provided, however, that
-------- -------
Article IV shall survive such termination.
(b) This Agreement shall terminate as to a given Holder other than
Positano and MB at such time following an Initial Public Offering as such Holder
beneficially owns, in the aggregate, fewer than 1% of the Company Shares then
outstanding.
SECTION 5.6. Notices. All notices, requests, demands or other
-------
communications required by or otherwise with respect to this Agreement shall be
in writing and shall be deemed to have been duly given to any party when
delivered by hand, by messenger, or by a nationally recognized overnight
delivery company, when delivered by telecopy and confirmed by return telecopy,
or when delivered by first-class mail, postage prepaid and return receipt
requested, in each case to the applicable addresses set forth below:
-11-
(a) if to the Company to:
x/x Xxxxxxx Xxxxxxxx Xxxxxxxx Xx.
Xxxxxxxxxx Tower
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx, Procter & Xxxx LLP
Exchange Place
Boston, Massachusetts 02109-2881
Attention: Xxxxxx X. Cable, P.C.
Facsimile: (000) 000-0000
(b) if to Positano:
H&F Investors III, Inc.
Xxx Xxxxxxxx Xxxxx
00/xx/ Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
(c) if to MB to:
x/x Xxxxxxx Xxxxxxxx Xxxxxxxx Xx.
Xxxxxxxxxx Tower
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
-12-
Xxxxxxx, Procter & Xxxx LLP
Exchange Place
Boston, Massachusetts 02109-2881
Attention: Xxxxxx X. Cable, P.C.
Facsimile: (000) 000-0000
(d) if to a Holder other than Positano or MB, to the address listed
after such Holder's name on Schedule 1 hereto, with copies to
such person as such Holder may by notice to all parties designate
in writing.
SECTION 5.7. Amendments. Unless otherwise expressly provided
----------
herein, this Agreement may not be amended or modified except by an instrument in
writing signed by, or on behalf of, each of the Parties.
SECTION 5.8. Severability. In the event that any one or more of the
------------
provisions, paragraphs, words, clauses, phrases or sentences 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, paragraph, word, clause, phrase or
sentence in every other respect and of the other remaining provisions,
paragraphs, words, clauses, phrases or sentences hereof shall not be in any way
impaired, it being intended that all rights, powers and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
SECTION 5.9. Specific Performance. The Parties acknowledge that
--------------------
there would be no adequate remedy at law if any Party fails to perform in any
material respect any of its obligations hereunder, and accordingly agree that
each Party, in addition to any other remedy to which it may be entitled at law
or in equity, shall be entitled to compel specific performance of the
obligations of any other Party under this Agreement in accordance with the terms
and conditions of this Agreement in any court of the United States or any State
thereof having jurisdiction.
SECTION 5.10. Governing Law. This Agreement shall be construed and
-------------
enforced in accordance with the laws of the Commonwealth of Massachusetts
applicable to contracts made and to be performed wholly within such state.
SECTION 5.11. Descriptive Headings, Etc. The headings in this
-------------------------
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning of terms contained herein. Unless the context of this
Agreement otherwise requires: (1) words of any gender shall be deemed to include
each other gender; (2) words using the singular or plural number shall also
include the plural or singular number, respectively; (3) the words "hereof,"
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Article, Section and paragraph references are to the
Articles, Sections and paragraphs to this Agreement unless otherwise specified;
(4) the word "including" and words of similar import when used in this Agreement
shall mean "including, without limitation," unless otherwise specified; (5) "or"
is not exclusive; and (6) provisions apply to successive events and
transactions.
-13-
SECTION 5.12. Counterparts. This Agreement may be executed and
------------
delivered in one or more counterparts, each of which, when so executed and
delivered, shall be deemed to be an original, but all of which counterparts,
taken together, shall constitute one and the same instrument.
SECTION 5.13. Entire Agreement. This Agreement is intended by the
----------------
Parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the Parties hereto
in respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the Company, on the one hand, and
the other Parties to this Agreement, on the other, with respect to such subject
matter.
-14-
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as
of the date first written above.
XXXXXXX XXXXXXXX XXXXXXXX CO.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Executive Officer and
President
Xxxxxxx Xxxxxxxx Xxxxxxxx Co. (the "Trust") is a
Massachusetts business trust. A copy of the
Trust's Declaration of Trust, as the same may be
amended and/or restated from time to time, is on
file with the Secretary of State of The
Commonwealth of Massachusetts. Each of the
parties hereto acknowledges and agrees that this
Agreement is not executed on behalf of the
trustees or officers of the Trust as individuals
or, in the event the trustee is a corporation or
other entity, on behalf of the individual owners
of such corporation or entity, and the obligations
of this Agreement are not binding upon any of the
trustees, officers or shareholders of the Trust,
or any of their respective trustees, officers,
directors, partners, members or shareholders,
individually, but are binding only upon the assets
and property of the Trust. Each of the parties
hereto agrees that no shareholder, trustee or
officer of the Trust, or any of their respective
trustees, officers, directors, partners, members
and shareholders, may be held personally liable or
responsible for any obligations of the Trust
arising out of this Agreement. With respect to
obligations of the Trust arising out of this
Agreement, each of the parties hereto shall look
for payment or satisfaction of any claim solely to
the assets and property of the Trust.
POSITANO PARTNERS LTD.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Xxxxxxx Xxxxxxx as Trustee under the
Xxxxxxx X. Xxxxxxx Annuity Trust,
dated as of July 16, 1998
By: /s/ Xxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxxx as Trustee under the
Xxxxxxx X. Xxxxxxx Annuity Trust,
dated as of July 16, 1998
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
By: /s/ Xxxx Xxxxxxxxx
-------------------------------
Xxxx Xxxxxxxxx
By: /s/ Xxxx Xxxx
-------------------------------
Xxxx Xxxx
By: /s/ Xxxxx Xxxxxxxxxx
-------------------------------
Xxxxx Xxxxxxxxxx
By: /s/ Xxxxx Xxxxxxxx
-------------------------------
Xxxxx Xxxxxxxx
By: /s/ Xxxxxxxx Xxxx
-------------------------------
Xxxxxxxx Xxxx
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxx
By: /s/ Xxxxxxx XxXxxxxx
-------------------------------
Xxxxxxx XxXxxxxx
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Xxxxxxx Xxxxxxx
By: /s/ Xxxxxxxx Xxxx
-------------------------------
Xxxxxxxx Xxxx
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------
Xxxxxxxx Xxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
By: /s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Xxxxxx Xxxxxxx
By: /s/ Xxxx Xxxxxxx
--------------------------------
Xxxx Xxxxxxx
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Xxxxxx Xxxxxx
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
By: /s/ Xxxxx Xxxx
--------------------------------
Xxxxx Xxxx
By: /s/ Xxxxx Xxxxx
--------------------------------
Xxxxx Xxxxx
By: /s/ Xxxxxx Xxxx
--------------------------------
The Xxxxxx Xxxx Revocable Trust
Xxxxxx Xxxx, Trustee
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Xxxxxx Xxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
By: /s/ Xxxxxx Xxxxx
------------------------------
Xxxxxx Xxxxx
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Xxxxxxx Xxxxxxxx
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------
Xxxxxxxx Xxxxxxxx
By: /s/ Xxxxx Pinchanski
------------------------------
Xxxxx Pinchanski
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxx
By: /s/ Xxxxx Xxxxxxxx
------------------------------
Xxxxx Xxxxxxxx
By: /s/ Xxxxxxx Xxxxx
------------------------------
Xxxxxxx Xxxxx
By: /s/ Xxxxxxx Xxxx
------------------------------
Xxxxxxx Xxxx
By: /s/ Xxxxxx Xxxxxx
------------------------------
Xxxxxx Xxxxxx
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
Schedule 1
The Xxxxxxx X. Xxxxxxx 1998 Annuity
Trust, dated as of July 16, 1998
00 Xxxxxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
Xxxx Xxxxxxxxx
000 Xxxxxxxxxxxx Xxxxxx, #000
Xxxxxx, XX 00000
Xxxx Xxxx
American Media Management, Inc.
0 Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxxx, XX 00000
Xxxxx Xxxxxxxxxx
000 Xxxxxxxxxxxx Xxxxxx, Xxx. 0
Xxxxxx, XX 00000
Xxxxx Xxxxxxxx
00 Xxxxxxxx Xxxxxx, #000
Xxxxxxxxx, XX 00000
Xxxxxxxx Xxxx
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Xxxxxx Xxxxxxxx
00 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx XxXxxxxx
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxx
000 Xxxx Xxx Xxxxxx, Xxx. 0X
Xxx Xxxx, XX 00000
Xxxxxxxx X. Xxxx
Xxxxxxxx Xxxxxx
0 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxx X. Xxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Xxxxxx Xxxxxxx
00 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
Xxxx Xxxxxxx
00 Xxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxx Xxxxxx
00 Xxxxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
Xxxx X. Xxxxxxx
0 Xxxxxxxxxx Xxxx
Xxxxx Xxxxxx, XX 00000
Xxxx X. Xxxxxxx
000 Xxxxx Xxxxxx, Xxxx 0X
Xxxxxx, XX 00000
Xxxxx Xxxx
000 Xxxxxxxx Xxxxxx, Xxx. 00X
Xxxxxx, XX 00000
Xxxxx X. Xxxxx
00 Xxxxxxxxx
Xxxxxxxxx, XX 00000-0000
Xxxxxx Xxxx
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxx
0 Xxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Xxxxxx Xxxxx
000 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX
Xxxxxxx Xxxxxxxx
00 Xxxxxxxx Xxxx X #00X
Xxx Xxxx, XX
Xxxxxxxx Xxxxxxxx
000 Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Xxxxx Pinchanski
000 Xxxxxxx Xxxxxx, Xxxx X
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxxxx Xxxxx, XX 00000
Xxxxx Xxxxxxxx
00 Xxxx 00/xx/ Xxxxxx, Xxx. 0XX
Xxx Xxxx, XX 00000
Xxxxxxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxxxxxx Xxxx
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
