REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is dated as of March 14, 1997 by
and among Anvil Holdings, Inc., a Delaware corporation (the "Company"),
Bruckmann, Xxxxxx, Xxxxxxxx & Co., L.P., a Delaware limited partnership ("BRS"),
399 Venture Partners, Inc., a New York corporation ("399 Venture"), CCT II
Partners, L.P., a Delaware limited partnership ("CCT"), Xxxxxxx Xxxxxx, Xxxxxxx
Xxxxxxx, Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxxx and each other executive of the Company
or its subsidiaries who acquires Common Stock (as defined below) from the
Company after the date hereof and executes a joinder hereto (collectively, the
"Executives", and individually an "Executive"), the Persons set forth on the 399
Individual Investor Signature Page attached hereto (collectively, the "399
Individual Investors", and individually an "Individual Investor"), the Persons
set forth on the BRS Individual Investors Signature Page attached hereto
(collectively, the "BRS Individual Investors", and individually a "BRS
Individual Investor") and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
(the "Initial Purchaser" and including the successors and assigns of the initial
purchasers of the Units described below).
WHEREAS, BRS, 399 Venture, CCT, the Executives, the 399 Individual
Investors and the BRS Individual Investors have acquired or retained shares of
the Company's Class A Common Stock, par value $.01 per share (the "Class A
Common"), and shares of the Company's Class B Common Stock, par value $.01 per
share (the "Class B Common"), pursuant to that certain Recapitalization
Agreement, dated as of February 12, 1997, by and among the Company, BRS, an
affiliate of 399 Venture, and certain other parties thereto, as amended (the
"Recapitalization Agreement");
WHEREAS, the Initial Purchaser (together with its successors and
assigns, the "Unit Investors") has acquired Units, each consisting of 40 shares
of 13% Senior Exchangeable Preferred Stock due 2009, of the Company, and 13
shares of Class B Common, pursuant to that certain Purchase Agreement, dated as
of the date hereof, by and among the Company and the Initial Purchaser (the
"Purchase Agreement"); and
WHEREAS, the Company, the Initial Purchaser, BRS, 399 Venture and
certain other parties have entered into a Registration Rights and
Securityholders Agreement, dated as of the date hereof, which incorporates by
reference this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. Definitions. As used herein, the following terms shall have the
following meanings.
"399 Venture Registrable Securities" means (i) any Common Stock
acquired by or issued or issuable to 000 Xxxxxxx, XXX, and the 399 Individual
Investors or their respective affiliates on or after the date hereof, and (ii)
any shares of capital stock of the Company issued or issuable with respect to
the securities referred to in clause (i) above by way of a stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. For purposes of this Agreement, a
Person will be deemed to be a holder of 399
Venture Registrable Securities whenever such Person has the right to acquire
directly or indirectly such 399 Venture Registrable Securities (upon conversion
or exercise in connection with a transfer of securities or otherwise, but
disregarding any restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected.
"BRS Registrable Securities" means (i) any Common Stock acquired by
or issued or issuable to BRS, the BRS Individual Investors or their respective
affiliates on or after the date hereof, and (ii) any shares of capital stock of
the Company issued or issuable with respect to the securities referred to in
clause (i) above by way of a stock dividend or stock split or in connection with
a combination of shares, recapitalization, merger, consolidation or other
reorganization. For purposes of this Agreement, a Person will be deemed to be a
holder of BRS Registrable Securities whenever such Person has the right to
acquire directly or indirectly such BRS Registrable Securities (upon conversion
or exercise in connection with a transfer of securities or otherwise, but
disregarding any restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected.
"Common Stock" means, (i) the Class A Common, the Class B Common and
the Company's Class C Common Stock, par value $.01 per share, and (ii) any
capital stock of the Company issued or issuable with respect to the securities
referred to in clause (i) by way of stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization.
"Company Registrable Securities" has the meaning set forth in
Section 5(c).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Executive Registrable Securities" means (i) any shares of Common
Stock acquired by or issued or issuable to the Executives on or after the date
hereof and (ii) any shares of capital stock of the Company issued or issuable
with respect to the securities referred to in clause (i) above by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. For purposes of
this Agreement, a Person will be deemed to be a holder of Executive Registrable
Securities whenever such Person has the right to acquire directly or indirectly
such Executive Registrable Securities (upon conversion or exercise in connection
with a transfer of securities or otherwise, but excluding any such rights which
are subject to vesting or any similar restrictions or limitations upon the
exercise of such right, including, without limitation, any options issued
pursuant to the Anvil Holdings, Inc. 1997 Stock Option Plan which are not yet
vested pursuant to the terms of any grant under such plan), whether or not such
acquisition has actually been effected.
"Investor Registrable Securities" means, collectively, the 399
Venture Registrable Securities and the BRS Registrable Securities.
"NASD" means the National Association of Securities Dealers, Inc.
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"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a limited liability company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Registrable Securities" means, collectively, the 399 Venture
Registrable Securities, the BRS Registrable Securities, the Executive
Registrable Securities and the Unit Investor Registrable Securities.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with this Agreement, including without limitation
all SEC and stock exchange or NASD registration and filing fees, fees and
expenses of compliance with securities or blue sky laws, printing expenses,
messenger and delivery expenses, transfer agent fees, and fees and disbursements
of counsel for the Company and all independent certified public accountants,
underwriters (excluding discounts and commissions) and other Persons retained by
the Company.
"Rule 144" means Rule 144 under the Securities Act (or any similar
rule then in force).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Unit Investor Registrable Securities" means (i) any Common Stock of
the Company acquired by or issued or issuable to the Unit Investors or their
respective affiliates on or after the date hereof, and (ii) any shares of
capital stock of the Company issued or issuable with respect to the securities
referred to in clause (i) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. For purposes of this Agreement, a Person will be deemed
to be a holder of Unit Investor Registrable Securities whenever such Person has
the right to acquire directly or indirectly such Unit Investor Registrable
Securities (upon conversion or exercise in connection with a transfer of
securities or otherwise, but disregarding any restrictions or limitations upon
the exercise of such right), whether or not such acquisition has actually been
effected.
2. Demand Registrations.
(a) Requests for Registration. Subject to Section 2(b) below, (i) at
any time and from time to time, the holders of a majority of (A) the 399 Venture
Registrable Securities and (B) the BRS Registrable Securities may together
request, and (ii) on the earlier of (A) the third anniversary of this Agreement
and (B) the consummation of an underwritten public offering of shares of Common
Stock registered under the Securities Act (provided that in no event shall the
issuance of Common Stock pursuant to the Purchase Agreement be deemed an
underwritten public offering for purposes hereof), either (x) the holders of a
majority of the 399 Venture Registrable Securities, or (y) the holders of a
majority of the BRS Registrable Securities may each request (1) registration,
whether underwritten or otherwise, under the Securities Act of all or part of
their Registrable Securities on Form S-1 or any similar long-form registration
("Long-Form
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Registrations") or on Form S-2 or S-3 or any similar short-form registration
("Short-Form Registrations"), if available or (2) that the Company file with the
SEC a registration statement under the Securities Act on any applicable form
pursuant to Rule 415 under the Securities Act (a "415 Registration"). Each
request for a Long-Form Registration or Short-Form Registration shall specify
the approximate number of Registrable Securities requested to be registered and
the anticipated per share price range for such offering. Within ten days after
receipt of any such request for a Long-Form Registration, Short-Form
Registration or 415 Registration, the Company will give written notice of such
requested registration to all other holders of Registrable Securities and will
include (subject to the provisions of this Agreement) in such registration, all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 20 days after the receipt of the Company's
notice. All registrations requested pursuant to in this Section 2(a) are
referred to herein as "Demand Registrations".
(b) Long-Form Registrations. The holders of a majority of (A) the
399 Venture Registrable Securities and (B) the BRS Registrable Securities will
each be entitled to request up to two (2) Long-Form Registrations in which the
Company will pay all Registration Expenses. A registration will not count as the
permitted Long-Form Registration until it has become effective and unless the
holders of Registrable Securities are able to register and sell at least 90% of
the Registrable Securities requested to be included in such registration.
(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to Section 2(b), (i) the holders of the 399
Venture Registrable Securities will be entitled to request an unlimited number
of Short-Form Registrations and (ii) the holders of a majority of BRS
Registerable Securities will be entitled to request an unlimited number of
Short-Form Registrations, respectively, in which the Company will pay all
Registration Expenses. Demand Registrations (other than 415 Registrations) will
be Short-Form Registrations whenever the Company is permitted to use any
applicable short form. After the Company has become subject to the reporting
requirements of the Exchange Act, the Company will use its best efforts to make
Short-Form Registrations available for the sale of Registrable Securities.
(d) Priority on Demand Registrations. The Company will not include
in any Long-Form Registration or Short-Form Registration any securities which
are not Registrable Securities without the prior written consent of the holders
of at least a majority of the Registrable Securities included in such
registration. If a Long-Form Registration or a Short-Form Registration is an
underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold therein without adversely affecting the marketability of the
offering, the Company will include in such registration (i) first, the number of
Registrable Securities requested to be included in such registration pro rata,
if necessary, among the holders of Registrable Securities based on the number of
shares of Registrable Securities owned by each such holder, and (ii) 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 shares of such other
securities owned by each such holder, and (iii) third, if Company Registrable
Securities are to be included in such registration, the number of Company
Registrable Securities to be included in such registration is that number of
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Company Registrable Securities which is, after giving effect to the foregoing
clauses (i) and (ii), required to attain the $30 million threshold offering
amount set forth in Section 5(c).
(e) Restrictions on Demand Registrations. The Company will not be
obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Registration.
(f) Selection of Underwriters. In the case of a Demand Registration
for an underwritten offering, the holders of a majority of the Registrable
Securities to be included in such Demand Registration will have the right to
select the investment banker(s) and manager(s) to administer the offering, which
investment banker(s) and manager(s) will be nationally recognized, subject to
the Company's approval which will not be unreasonably withheld.
(g) 415 Registrations.
(i) The holders of (A) a majority of the 399 Venture
Registrable Securities and (B) the holders of a majority of the BRS
Registrable Securities, will each be entitled to request one (1) 415
Registration. Subject to the availability of required financial
information, within 45 days after the Company receives written notice of a
request for a 415 Registration, the Company shall file with the SEC a
registration statement under the Securities Act for the 415 Registration.
The Company shall use its best efforts to cause the 415 Registration to be
declared effective under the Securities Act as soon as practical after
filing, and once effective, the Company shall (subject to the provisions
of clause (x) below) cause such 415 Registration to remain effective for
such time period as is specified in such request, but for no time period
longer than the period ending on the earlier of (x) the third anniversary
of the date of filing of the 415 Registration or (y) the date on which all
399 Venture Registrable Securities or all BRS Registrable Securities, as
applicable, have been sold pursuant to the 415 Registration or (z) the
date as of which there are no longer any 399 Venture Registrable
Securities or any BRS Registrable Securities, as applicable, in existence.
(ii) If either (A) the holders of a majority of the 399
Venture Registrable Securities or (B) the holders of a majority of the BRS
Registrable Securities notify the Company in writing that they intend to
effect the sale of all or substantially all of the Registrable Securities
held by such holders pursuant to a single integrated offering pursuant to
a then effective registration statement for a 415 Registration (a
"Takedown"), (x) the Company will notify all holders of Registrable
Securities who have requested inclusion in such 415 Registration pursuant
to Section 2(a), and (y) the Company and each holder of Registrable
Securities (other than the 399 Venture Individual Investors, the BRS
Individual Investors, the holders of Investor Registrable Securities
pursuant to a 415 Registration and the holders of Unit Investor
Registrable Securities) shall not effect any public sale or distribution
of its equity securities, or any securities convertible into or
exchangeable or exercisable for its equity securities, during the 90-day
period beginning on the date such notice of a Takedown is received.
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(iii) If in connection with such an offering, the number of
Registrable Securities and other securities (if any) requested to be
included in such Takedown exceeds the number of Registrable Securities and
other securities which can be sold in such offering without adversely
affecting the marketability of the offering, the Company shall include in
such sale (i) first, the Registrable Securities requested to be included
in such Takedown, pro rata among the holders of such Registrable
Securities on the basis of the number of Registrable Securities owned by
each such holder, and (ii) second, other securities requested to be
included in such Takedown to the extent permitted hereunder.
(iv) The holders of a majority of the Investor Registrable
Securities shall have the right to retain and select an investment banker
and manager to administer the 415 Registration and any Takedown pursuant
thereto, subject to the Company's approval which will not be unreasonably
withheld.
(v) In addition to the provisions in Section 6 below, all
expenses incurred in connection with the management of the 415
Registration (whether incurred by the Company or the holders of the
Registrable Securities) shall be borne by the Company (including, without
limitation, all fees and expenses of the investment banker and manager)
(excluding discounts and commissions).
(h) Other Registration Rights. Except as provided in this Agreement,
the Company will not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or exercisable for such securities, without the prior written
consent of the holders of a majority of the 399 Venture Registrable Securities
and the holders of a majority of the BRS Registrable Securities.
3. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register
any of its Common Stock under the Securities Act (other than pursuant to a
Demand Registration, and other than pursuant to a registration statement on Form
S-8 or S-4 or any similar form or in connection with a registration the primary
purpose of which is to register debt securities (i.e., in connection with a
so-called "equity kicker")) and a registration form to be used may be used for
the registration of Registrable Securities (a "Piggyback Registration"), the
Company will give prompt written notice to all holders of Registrable Securities
of its intention to effect such a registration and will include in such
registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within 20 days after the receipt
of the Company's notice. Notwithstanding the foregoing, in connection only with
the initial registered public offering of the Company's securities which
offering is a primary offering, no Registrable Securities shall be included in
such registration without the prior written consent of the holders of a majority
of the 399 Venture Registrable Securities and the holders of a majority of the
BRS Registrable Securities.
(b) Priority on Primary Registrations. If a Piggyback Registration
is an underwritten primary registration on behalf of the Company, the Company
will include in such registration all securities requested to be included in
such registration; provided, that if the managing
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underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering without adversely affecting the marketability
of the offering, the Company will include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, 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 shares of Registrable
Securities owned by each such holder, and (iii) third, other securities, if any,
requested to be included in such registration.
(c) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities (which registration was consented to pursuant to Section 2(h) above),
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering without adversely
affecting the marketability of the offering, the Company will include in such
registration (i) 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 shares of Registrable Securities owned by each such
holder, and (ii) second, other securities requested to be included in such
registration not covered by clause (i) above.
(d) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the investment banker(s) and manager(s) for the offering
will be selected by the Company.
(e) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to this
Section 3, and if such previous registration has not been withdrawn or
abandoned, the Company will not file or cause to be effected any other
registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Forms S-4 or S-8 or any successor forms), whether on its own
behalf or at the request of any holder or holders of such securities, until a
period of at least six months has elapsed from the effective date of such
previous registration.
4. Holdback Agreements.
(a) Each holder of Registrable Securities (other than the 399
Individual Investors, BRS Individual Investors and the holders of Unit Investor
Registrable Securities) hereby 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 180-day period beginning
on the effective date of any Demand Registration (other than a 415 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 (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible into or
exchangeable or exercisable for such securities,
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during the seven days prior to and during the 180-day period beginning on the
effective date of any underwritten Demand Registration (other than a 415
Registration) or Piggyback Registration (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 (ii) to cause each holder of Registrable Securities (other
than the 399 Individual Investors, BRS Individual Investors and the holders of
Unit Investor Registrable Securities) and each other holder of at least 5% (on a
fully diluted basis) of Common Stock, or any securities convertible into or
exchangeable or exercisable for Common Stock, purchased from the Company at any
time after the date of this Agreement (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.
5. Registration Procedures. Whenever the holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof, and pursuant thereto the Company will as expeditiously
as possible:
(a) prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company will furnish to the counsel selected by the holders of a majority of
the Registrable Securities covered by such registration statement copies of all
such documents proposed to be filed);
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for 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 by the holders of a majority of the Investor
Registrable Securities in connection with any Demand Registration requested by
such holders, use its commercially reasonable efforts to cause to be included in
such registration Common Stock having an aggregate value (based on the midpoint
of the proposed offering price range specified in the registration statement
used to offer such securities) of up to $30 million ("Company Registrable
Securities"), to be offered in a primary offering of the Company's securities
contemporaneously with such offering of Registrable Securities;
(d) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such
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seller may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller;
(e) use its 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 will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subsection, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process (i.e., service of
process which is not limited solely to securities law violations) in any such
jurisdiction);
(f) 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, the Company will
promptly prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not misleading;
(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
("Nasdaq Market") and, if listed on the Nasdaq Market, use its best efforts to
secure designation of all such Registrable Securities covered by such
registration statement as a Nasdaq "National Market System security" within the
meaning of Rule 11Aa2-1 of the SEC or, failing that, to secure Nasdaq Market
authorization for such Registrable Securities and, without limiting the
generality of the foregoing, to arrange for at least two market makers to
register as such with respect to such Registrable Securities with the NASD;
(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 holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including, without limitation, effecting a stock split
or a combination of shares);
(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 Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested
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by any such seller, underwriter, attorney, accountant or agent in connection
with such registration statement;
(k) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security holders, as
soon as reasonably practicable, an earning statement covering the period of at
least twelve months beginning with the first day of the Company's first full
calendar quarter after the effective date of the registration statement, which
earning 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 its
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 common stock included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order;
(n) use its 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;
and
(o) obtain a "cold comfort" letter from the Company's independent
public accountants 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.
If any such registration or comparable statement refers to any holder by name or
otherwise as the holder of any securities of the Company and if, in its sole and
exclusive judgment, such holder is or might be deemed to be a controlling person
of the Company, such holder shall have the right to require (i) the insertion
therein of language, in form and substance satisfactory to such holder and
presented to the Company in writing, 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 statute then in force, the deletion of the reference
to such holder; provided, that with respect to this clause (ii) such holder
shall furnish to the Company an opinion of counsel to such effect, which opinion
and counsel shall be reasonably satisfactory to the Company.
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6. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all Registration
Expenses, will be borne by the Company.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company will reimburse the holders of Registrable Securities
covered by such registration for the reasonable fees and disbursements of one
counsel for such holders, such counsel to be chosen by the holders of a majority
of the Registrable Securities initially requesting such registration.
7. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses arising out of or
based upon any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse such holder, director, officer or
controlling person for any legal or other expenses reasonably incurred by such
holder, director, officer or controlling person in connection with the
investigation or defense of such loss, claim, damage, liability or expense,
except insofar as the same are caused by or contained in any information
furnished in writing to the Company by such holder expressly for use therein. In
connection with an underwritten offering, the Company will indemnify such
underwriters, their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the holders of Registrable
Securities.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such holder; provided, that the obligation to indemnify
will be individual to each holder and will be limited to the net amount of
proceeds received by such holder from the sale of Registrable Securities
pursuant to such registration statement.
- 11 -
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made
by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling Person
of such indemnified party and will survive the transfer of securities. The
Company also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the Company's
indemnification is unavailable for any reason.
8. Participation in Underwritten Registrations. No Person may participate
in any registration hereunder which is underwritten unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all customary
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements; provided, that no holder of Registrable Securities included in any
underwritten registration shall be required to make any representations or
warranties to the Company or the underwriters other than representations and
warranties regarding such holder and such holder's intended method of
distribution.
9. Rule 144 Reporting. With a view to making available to the holders of
Registrable Securities the benefits of certain rules and regulations of the SEC
which may permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its best efforts to:
(a) make and keep current public information available, within the
meaning of Rule 144 or any similar or analogous rule promulgated under the
Securities Act, at all times after it has become subject to the reporting
requirements of the Exchange Act;
(b) file with the SEC, in a timely manner, all reports and other
documents required of the Company under the Securities Act and Exchange Act
(after it has become subject to such reporting requirements); and
(c) so long as any party hereto owns any Registrable Securities,
furnish to such Person forthwith upon request, a written statement by the
Company as to its compliance with the
- 12 -
reporting requirements of said Rule 144 (at any time commencing 90 days after
the effective date of the first registration filed by the Company for an
offering of its securities to the general public), the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements); a copy of the most recent annual or quarterly report of the
Company; and such other reports and documents as such Person may reasonably
request in availing itself of any rule or regulation of the SEC allowing it to
sell any such securities without registration.
10. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally, mailed
by certified or registered mail, return receipt requested and postage prepaid,
or sent via a nationally recognized overnight courier, or sent via facsimile to
the recipient. Such notices, demands and other communications will be sent to
the address indicated below:
To the Company:
Anvil Holdings, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Administrative Officer
Telecopy No.: (000) 000-0000
With copies (which shall not constitute notice) to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
To any holder of 399 Venture Registrable Securities:
c/o 399 Venture Partners Inc.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
- 13 -
With a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
To any holder of BRS Registrable Securities:
c/o Bruckmann, Xxxxxx, Xxxxxxxx & Co., Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Telecopier: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxx
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
To any of the Executives:
Anvil Holdings, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [Executive's Name]
Telecopy No.: (000) 000-0000
To any holder of Unit Investor Registrable Securities:
At the address set forth on the stock records
of the Company
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
- 14 -
11. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not enter into any
agreement which is inconsistent with or violates the rights granted to the
holders of Registrable Securities in this Agreement.
(b) Remedies. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(c) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of a majority of the 399 Venture
Registrable Securities and the holders of a majority of the BRS Registrable
Securities.
(d) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not; provided, that in no event shall a successor or
assign of the Units held by 000 Xxxxxxx, XXX, XXX or the Individual Investors be
deemed to be holders of 399 Venture Registrable Securities or BRS Registrable
Securities, as the case may be. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for the
benefit of purchasers or holders of Registrable Securities are also for the
benefit of, and enforceable by, any subsequent holder of Registrable Securities.
(e) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will constitute
one and the same Agreement.
(g) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(h) Waiver of Jury Trial. Each of the parties hereto hereby waive,
to the extent permitted by applicable law, trial by jury in any litigation in
any court with respect to, in connection with, or arising out of this Agreement
or the validity, protection, interpretation or enforcement
- 15 -
thereof. Each of the parties hereto hereby agree that this section is a specific
and material aspect of this Agreement and would not enter into this agreement if
this section were not part of this Agreement.
(i) Governing Law. The corporate laws of the State of Delaware will
govern all questions concerning the relative rights of the Company and its
stockholders. All other questions concerning the construction, validity and
interpretation of this Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
(i) Time of the Essence; Computation of Time. Time is of the essence
for each and every provision of this Agreement. Whenever the last day for the
exercise of any privilege or the discharge or any duty hereunder shall fall upon
a Saturday, Sunday, or any date on which banks in New York City, New York are
authorized to be closed, the party having such privilege or duty may exercise
such privilege or discharge such duty on the next succeeding day which is a
regular business day.
* * * * *
- 16 -
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first above written.
ANVIL HOLDINGS, INC.
By:
------------------------------------
Name:
Title:
399 VENTURE PARTNERS, INC.
By:
------------------------------------
Name:
Title:
BRUCKMANN, XXXXXX, XXXXXXXX & CO., L.P.
By: BRS Partners, Limited Partnership
Its: General Partner
By:
------------------------------
Name:
Title:
CCT II PARTNERS, L.P.
By: CCT I Corporation
Its: General Partner
By:
------------------------------
Name:
Title:
XXXXXXX XXXXXX
----------------------------------------
XXXXXXX XXXXXXX
----------------------------------------
- 17 -
XXXXXXX XXXXXX
----------------------------------------
XXXXX XXXXXXXXX
----------------------------------------
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By:
------------------------------------
Name:
Title:
399 INDIVIDUAL INVESTORS
SIGNATURE PAGE FOR
REGISTRATION RIGHTS AGREEMENT
XXXXX XXXX XXXXX X. XXXXXX
-------------------------------- -------------------------------------
NATASHA PARTNERSHIP XXXX XXXXX
-------------------------------- -------------------------------------
XXXXXX XXXXXXXXX XXXXXX X. XXXXXX
-------------------------------- -------------------------------------
BRS INDIVIDUAL INVESTORS
SIGNATURE PAGE FOR
REGISTRATION RIGHTS AGREEMENT
XXXXX XXXXXXXXX XXXXXXX XXXXXXXX
-------------------------------- -------------------------------------
XXXXXX XXXXXXXXX NAZ PARTNERSHIP
-------------------------------- -------------------------------------
BCB PARTNERSHIP XXXXXX XXXXXX
-------------------------------- -------------------------------------
XXXXX XXXXX XXXXXX X. XXXXXXXX
-------------------------------- -------------------------------------
XXXX X. XXXXXXXX XXXX X. XXXXXXXX XXX
-------------------------------- -------------------------------------
