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EXHIBIT 4.6
XXXXX MATERIAL HANDLING COMPANY
$20,000,000 13% Senior Exchangeable Preferred Stock due 2007
REGISTRATION RIGHTS AGREEMENT
July 17, 1998
XXXXXXXXX & COMPANY, INC.
00000 Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
BEAR, XXXXXXX & CO. INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
XXXXX Material Handling Company, a Delaware corporation (the
"Company"), is issuing and selling to Xxxxxxxxx & Company, Inc. and Bear,
Xxxxxxx & Co. Inc. (collectively, the "Purchasers"), upon the terms set forth in
a purchase agreement, dated as of July 13, 1998 (the "Purchase Agreement"),
$20,000,000 aggregate liquidation preference of the Company's 13% Series A
Senior Exchangeable Preferred Stock due 2007 (the "Preferred Stock"). As an
inducement to the Purchasers to enter into the Purchase Agreement, the Company
agrees with the Purchasers, for the benefit of the holders of the Securities
(defined below) (including, without limitation, the Purchasers), as follows:
1. Definitions
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
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Advice: See Section 6.
Agreement: This Registration Rights Agreement.
Applicable Period: See Section 2(f).
Business Days: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking institutions in the State of New York are authorized or
obligated by law, governmental regulation or executive order to be closed.
Certificate of Designation: The Certificate of Designation of the
Powers, Preferences and Relative, Participating, Optional and other Special
Rights of the Preferred Stock and Qualification, Limitations and Restrictions
thereof filed by the Company with the Secretary of State of the State of
Delaware on July __, 1998.
Closing Date: July 17, 1998.
Effectiveness Date: November 16, 1998.
Effectiveness Period: See Section 3(a).
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a).
Exchange Offer Registration Statement: See Section 2(a).
Exchange Securities: 13% Senior Exchangeable Preferred Stock due
2007 of the Company identical in all material respects to the Preferred Stock,
except for references to series and restrictive legends.
Filing Date: September 15, 1998.
Holder: Each registered holder of Registrable Securities.
Initial Shelf Registration: See Section 3(a).
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Losses: See Section 8(a).
Maximum Contribution Amount: See Section 8(d).
NASD: The National Association of Securities Dealers, Inc.
Participating Broker-Dealer: See Section 2(f).
Person: An individual, trustee, corporation, partnership, joint
stock company, joint venture, trust, unincorporated organization or government
or any agency or political subdivision thereof, union, business association,
firm or other entity.
Private Exchange: See Section 2(g).
Private Exchange Securities: See Section 2(g).
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities covered by such Registration
Statement, and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Registration Default: See Section 4(a).
Registrable Securities: The (a) Preferred Stock, (b) Private
Exchange Securities and (c) Exchange Securities received by a Holder in the
Exchange Offer that may not be sold without restriction under state and federal
securities laws (other than due solely to the status of such Holder as an
affiliate of the Company within the meaning of the Securities Act), in each case
until (i) a Registration Statement covering such Securities has been declared
effective by the SEC and such Securities have been disposed of in accordance
with the effective Registration Statement, (ii) such shares of Preferred Stock
have been exchanged pursuant to the Exchange Offer for Exchange Securities that
may be resold without
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restriction under state or federal securities laws, or (iii) such Securities
cease to be outstanding.
Registrar and Transfer Agent: The Registrar and Transfer Agent with
respect to the Preferred Stock, which initially shall be United States Trust
Company of New York.
Registration Statement: Any registration statement of the Company
that covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Review: See Section 6(a).
Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
Rule 415: Rule 415 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
SEC: The Securities and Exchange Commission.
Securities: The Preferred Stock, the Private Exchange Securities and
the Exchange Securities, collectively.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(i).
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Shelf Registration: The Initial Shelf Registration and any
Subsequent Shelf Registration.
Special Counsel: Counsel chosen by the Holders of a majority in
aggregate liquidation preference of Securities.
Subsequent Shelf Registration: See Section 3(b).
Underwritten Registration or Underwritten Offering: A registration
in which securities of the Company are sold to an underwriter for reoffering to
the public.
Weekly Liquidated Damages Amount: See Section 4(a).
2. Exchange Offer
(a) The Company shall (i) prepare and file with the SEC promptly
after the date hereof, but in no event later than the Filing Date, a
registration statement (the "Exchange Offer Registration Statement") on an
appropriate form under the Securities Act with respect to a proposed offer (the
"Exchange Offer") to the Holders to issue and deliver to such Holders, in
exchange for the shares of Preferred Stock, a like aggregate liquidation
preference of Exchange Securities, (ii) use its best efforts to cause the
Exchange Offer Registration Statement to become effective as promptly as
practicable after the filing thereof, but in no event later than the
Effectiveness Date, (iii) keep the Exchange Offer Registration Statement
effective until the consummation of the Exchange Offer pursuant to its terms,
and (iv) unless the Exchange Offer would not be permitted by a policy of the
SEC, commence the Exchange Offer and use its best efforts to issue, on or prior
to 30 business days after the date on which the Exchange Offer Registration
Statement is declared effective, Exchange Securities in exchange for all shares
of Preferred Stock tendered prior thereto in the Exchange Offer.
The Exchange Offer shall not be subject to any conditions, other
than that (i) the Exchange Offer does not violate applicable law or any
applicable interpretation of the Staff of the SEC, (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental
agency that could reasonably be expected to materially impair the ability of the
Company to proceed with the Exchange Offer, and no material adverse development
shall have occurred
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in any such existing action or proceeding with respect to the Company, and (iii)
all governmental approvals necessary for the consummation of the Exchange Offer
shall have been obtained.
(b) The Exchange Securities shall be issued under, and entitled to
the benefits of, the Certificate of Designation.
(c) In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal that is an exhibit thereto and related documents;
(ii) keep the Exchange Offer open for not less than 20
Business Days after the date notice thereof is mailed to the Holders (or longer
if required by applicable law);
(iii) utilize the services of a depository for the Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(iv) permit Holders to withdraw tendered shares of Preferred
Stock at any time prior to the close of business, New York time, on the last
Business Day on which the Exchange Offer shall remain open; and
(v) otherwise comply in all material respects with all laws
applicable to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer,
the Company shall:
(i) accept for exchange all shares of Preferred Stock validly
tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Registrar and Transfer Agent for
cancellation all shares of Preferred Stock so accepted for exchange; and
(iii) use its best efforts to cause the Registrar and Transfer
Agent promptly to countersign and deliver to each Holder of shares of Preferred
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Stock, Exchange Securities equal in aggregate liquidation preference to the
shares of Preferred Stock of such Holder so accepted for exchange.
(e) Dividends on each Exchange Security and Private Exchange
Security will accrue from the last dividend payment date on which dividends were
paid on the shares of Preferred Stock surrendered in exchange therefor or, if no
dividends have been paid on the shares of Preferred Stock, from the date of
original issue of the shares of Preferred Stock. Each Exchange Security and
Private Exchange Security shall accrue dividends at the rate set forth thereon;
provided, that dividends with respect to the period prior to the issuance
thereof shall accrue at the rate or rates borne by the shares of Preferred Stock
from time to time during such period.
(f) The Company shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution,"
containing a summary statement of the positions taken or policies made by the
Staff of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Securities received by such broker-dealer in the
Exchange Offer (a "Participating Broker-Dealer"). Such "Plan of Distribution"
section shall also allow the use of the Prospectus by Participating
Brokers-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Securities.
If any Holder participating in the Exchange Offer makes the
representations contemplated by Section 2(h) (iv) hereof, the Company shall use
its best efforts to keep the Exchange Offer Registration Statement effective and
to amend and supplement the Prospectus to be lawfully delivered by all Persons
subject to the prospectus delivery requirement of the Securities Act for a
period of 180 days from the consummation of the Exchange Offer (as such period
may be extended pursuant to the last paragraph of Section 6 hereof) (the
"Applicable Period") or such earlier date as the Company shall be notified in
writing that such requesting Participating Broker-Dealer has resold all Exchange
Securities acquired in the Exchange Offer.
(g) If, prior to consummation of the Exchange Offer, any Purchaser
holds any Securities acquired by it and having the status as an unsold allotment
in the initial distribution, the Company shall, upon the request of such
Purchaser, simultaneously with the delivery of the Exchange Securities in the
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Exchange Offer, issue (pursuant to the same Certificate of Designation as the
Exchange Securities) and deliver to such Purchaser, in exchange (the "Private
Exchange") for the Securities held by such Purchaser, a like liquidation
preference of preferred securities of the Company that are identical to the
Exchange Securities (the "Private Exchange Securities"). The Private Exchange
Securities shall bear the same CUSIP number as the Exchange Securities.
(h) Each Holder participating in the Exchange Offer will be required
to represent to the Company in writing that (i) any Exchange Securities received
by such Holder in the Exchange Offer will be acquired in the ordinary course of
its business, (ii) at the time of the consummation of the Exchange Offer such
Holder will have no arrangement or understanding with any Person to participate
in the distribution of the Exchange Securities within the meaning of the
Securities Act or resale of the Exchange Securities in violation of the
Securities Act, (iii) if such Holder is not a broker-dealer, that it is not
engaged in and does not intend to engage in, the distribution of the Exchange
Securities, (iv) if such Holder is a broker-dealer that will receive Exchange
Securities for its own account in exchange for shares of Preferred Stock that
were acquired as a result of market-making or other trading activities, that it
will deliver a prospectus, as required by law, in connection with any resale of
such Exchange Securities, and (v) such Holder is not an "affiliate" of the
Company within the meaning of the Securities Act or, if such Holder is an
affiliate, that it will comply with the registration and prospectus delivery
requirements of the Securities Act applicable to it.
(i) If (i) prior to the consummation of the Exchange Offer, the
Company in its reasonable judgment determines that a majority in aggregate
liquidation preference of the Exchange Securities would not, upon receipt, be
tradeable by the Holders thereof without restriction under the Securities Act
and the Exchange Act and without material restrictions under applicable Blue Sky
or state securities laws, (ii) applicable interpretations of the Staff of the
SEC would not permit the consummation of the Exchange Offer prior to the
Effectiveness Date, (iii) subsequent to the consummation of the Private Exchange
but within one year of the Closing Date, the Purchasers so request, (iv) the
Exchange Offer is not consummated within 240 days of the Closing Date for any
reason or (v) in the case of any Holder not permitted to participate in the
Exchange Offer or of any Holder participating in the Exchange Offer that
receives Exchange Securities that may not be sold without restriction under
state and federal securities laws (other than due solely to the status of such
Holder as an affiliate of the Company within the meaning of the Securities Act)
and, in either case contemplated by this clause (v),
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such Holder notifies the Company within six months of consummation of the
Exchange, then the Company shall promptly deliver to the Holders (or in the case
of any occurrence of the event described in clause (iii) or (v) hereof, to the
Purchasers or any such Holder, as applicable) and the Registrar and Transfer
Agent (in the case of clauses (i), (ii), (iii) and (iv)) notice thereof (the
"Shelf Notice") and shall as promptly as possible thereafter file an Initial
Shelf Registration pursuant to Section 3 hereof.
3. Shelf Registration
If a Shelf Notice is required to be delivered pursuant to Section
2(i) (i), (ii), or (iv), then this Section 3 shall apply to all Registrable
Securities. If a Shelf Notice is required to be delivered pursuant to Section
2(i)(iii), then this Section 3 shall apply solely to Private Exchange
Securities. If a Shelf Notice is required to be delivered pursuant to Section
2(i)(v), then this Section 3 shall apply solely to (i) shares of Preferred Stock
held by any Holder thereof not permitted to participate in the Exchange Offer
and (ii) Exchange Securities that are not freely tradeable as contemplated by
Section 2(i)(v) hereof.
(a) Initial Shelf Registration. The Company shall prepare and file
with the SEC a Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415 covering all of the Registrable Securities (the
"Initial Shelf Registration"). The Initial Shelf Registration shall be on an
appropriate form permitting registration of such Registrable Securities for
resale by such Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Company shall (i)
not permit any securities other than the Registrable Securities to be included
in any Shelf Registration, and (ii) use its best efforts to cause the Initial
Shelf Registration to be declared effective under the Securities Act as promptly
as practicable after the filing thereof, and to keep the Initial Shelf
Registration continuously effective under the Securities Act until the third
year anniversary of the Closing Date (the "Effectiveness Period"), or such
shorter period ending when (i) all Registrable Securities covered by the Initial
Shelf Registration have been sold pursuant to the Shelf Registration or (ii) a
Subsequent Shelf Registration covering all of the Registrable Securities covered
by and not sold under the Initial Shelf Registration or an earlier Subsequent
Shelf Registration has been declared effective under the Securities Act;
provided, that the Company may suspend the effectiveness of a Shelf Registration
for a period not to exceed 45 days in any calendar year (a "Shelf Blackout
Period"), and the three year period specified above shall be extended by
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the number of days in the Shelf Blackout Period, if (i) an event occurs and is
continuing as a result of which the Shelf Registration would, in the Company's
good faith judgment, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading and (ii) (A) the Company determines in good faith that the disclosure
of such event at such time would have a material adverse effect on the business,
operations or prospects of the Company and its subsidiaries, taken as a whole,
or (B) the disclosure otherwise relates to a pending material business
transaction that has not yet been publicly disclosed.
(b) Subsequent Shelf Registrations. If any Shelf Registration ceases
to be effective for any reason at any time during the Effectiveness Period
(other than because of the sale of all of the securities registered thereunder),
the Company shall use its best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, as soon as practicable after such
cessation of effectiveness, to amend the Shelf Registration in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or to file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Registrable Securities covered by and
not sold under the Initial Shelf Registration or an earlier Subsequent Shelf
Registration (a "Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Company shall use its best efforts to cause the
Subsequent Shelf Registration to be declared effective as soon as practicable
after such filing and to keep such Subsequent Shelf Registration continuously
effective for a period equal to the number of days in the Effectiveness Period
less the aggregate number of days during which the Initial Shelf Registration,
and any Subsequent Shelf Registration, was previously continuously effective.
4. Liquidated Damages.
(a) The Company acknowledges and agrees that the Holders of
Registrable Securities will suffer damages, and that it would not be feasible to
ascertain the extent of such damages with precision, if the Company fails to
fulfill its obligations hereunder. Accordingly, in the event of such failure by
the Company to fulfill such obligations, the Company hereby agrees to pay
liquidated damages to each Holder of Registrable Securities under the
circumstances and to the extent set forth below:
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(i) if neither the Exchange Offer Registration Statement nor
the Initial Shelf Registration has been filed with the SEC on or prior to
the Filing Date; or
(ii) if neither the Exchange Offer Registration Statement nor
the Initial Shelf Registration is declared effective by the SEC on or
prior to the Effectiveness Date; or
(iii) if the Company has not exchanged Exchange Securities for
all shares of Preferred Stock validly tendered in accordance with the
terms of the Exchange Offer within 30 days after the date on which an
Exchange Offer Registration Statement is declared effective by the SEC; or
(iv) the Initial Shelf Registration is filed and declared
effective by the SEC but thereafter ceases to be effective without being
succeeded within 30 days by a Subsequent Shelf Registration filed and
declared effective;
(each of the foregoing, a "Registration Default").
Accordingly, upon the occurrence of a Registration Default, the
Company shall pay, or cause to be paid, as liquidated damages, and not as a
penalty, to each Holder of a Registrable Security, an additional amount (the
"Weekly Liquidated Damages Amount") equal to (A) for each weekly period
beginning on the date such Registration Default occurs for the first 90-day
period immediately following such date, $.05 per week per $1,000 liquidation
preference of Registrable Securities held by such Holder, and (B) for each
weekly period beginning with the first full week after the 90-day period set
forth in the foregoing clause (A), $.10 per week per $1,000 liquidation
preference of Registrable Securities held by such Holder; provided, that such
liquidated damages will, in each case, cease to accrue (subject to the
occurrence of another Registration Default) on the date on which all
Registration Defaults have been cured. A Registration Default under clause (i)
above shall be cured on the date that either the Exchange Offer Registration
Statement or the Initial Shelf Registration is filed with the SEC; a
Registration Default under clause (ii) above shall be cured on the date that
either the Exchange Offer Registration Statement or the Initial Shelf
Registration is declared effective by the SEC; a Registration Default under
clause (iii) above shall be cured on the earlier of the date (A) the Exchange
Offer is consummated with respect to all shares of Preferred Stock validly
tendered or (B) the
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Company delivers a Shelf Notice to the Holders of Registrable Securities; and a
Registration Default under clause (iv) above shall be cured on the earlier of
(A) the date on which the applicable Shelf Registration is no longer subject to
an order suspending the effectiveness thereof or proceedings relating thereto or
(B) a new Subsequent Shelf Registration is declared effective.
(b) The Company shall notify the Registrar and Transfer Agent within
five Business Days after each Registration Default. The Company shall pay the
liquidated damages due on the Registrable Securities by depositing with the
Registrar and Transfer Agent, in trust, for the benefit of the Holders thereof,
by 12:00 noon, New York City time, on the applicable payment dates specified in
the Certificate of Designation, immediately available funds in sums sufficient
to pay the liquidated damages then due (or, if such dividend is being paid in
additional shares of Senior Preferred Stock, additional fully paid and
non-assessable shares (including fractional shares, if applicable) of Senior
Preferred Stock having an aggregate liquidation preference equal to the amount
of such liquidated damages (rounded to the nearest whole cent)). The liquidated
damages amount due shall be payable on each dividend payment date to the record
Holder of Registrable Securities entitled to receive the dividend payment to be
made on such date as set forth in the Certificate of Designation, commencing
with the first payment date occurring after any Registration Default.
5. [Intentionally Left Blank]
6. Registration Procedures
In connection with the registration of any Securities pursuant to
Sections 2 or 3 hereof, the Company shall effect such registrations to permit
the sale of such Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall:
(a) Prepare and file with the SEC, on or prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by Section 2 or
3, and use its best efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided, that, if (i) such
filing is pursuant to Section 3 or (ii) a Prospectus contained in an Exchange
Offer Registration Statement filed pursuant to Section 2 is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Securities during the Applicable Period relating thereto,
before filing any Xxxxxxxx-
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tion Statement or Prospectus or any amendments or supplements thereto, the
Company shall, if requested, furnish to and afford the Holders of the
Registrable Securities covered by such Registration Statement, their Special
Counsel, each Participating Broker-Dealers, the managing underwriters, if any,
and their counsel a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed, such financial and other
information and books and records of the Company, and cause the officers,
directors and employees of the Company, Company counsel and the independent
certified public accountants of the Company to respond to such inquiries (such
actions are hereinafter collectively referred to as the "Review"), as shall be
reasonably necessary, in the opinion of respective counsel to such Holders,
Participating Broker-Dealers and underwriters, to conduct a reasonable
investigation within the meaning of the Securities Act. The Company may require
each Holder to agree to keep confidential any non-public information relating to
the Company received by such Holders and not disclose such information (other
than to an Affiliate or prospective purchaser who agrees to respect the
confidentiality provisions of this Section 6(a)) until such information has been
made generally available to the public unless the release of such information is
required by law or necessary to respond to inquiries of regulatory authorities
(including the National Association of Insurance Commissioners, or similar
organizations or their successors). The Company shall not file any Registration
Statement or Prospectus or any amendments or supplements thereto in respect of
which the Holders must be afforded an opportunity to Review prior to the filing
of such document, if the Holders of a majority in aggregate liquidation
preference of the Registrable Securities covered by such Registration Statement,
their Special Counsel, any Participating Broker-Dealer or the managing
underwriters, if any, or their counsel shall reasonably object to the Company if
such objection states that the person or persons making such objection believe
that such Registration Statement, Prospectus or amendment does not comply in any
material respect with any applicable law.
(b) Provide a registrar and transfer agent for the Registrable
Securities or the Exchange Securities, as the case may be.
(c) Prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the time periods required
hereby; cause the related Prospectus to be supplemented by any Prospectus
supplement required by Applicable Law, and as so supplemented to be filed
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pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply in all material respects with the provisions of the
Securities Act and the Exchange Act applicable thereto with respect to the
disposition of all securities covered by such Registration Statement, as so
amended, or in such Prospectus, as so supplemented, in accordance with the
intended methods of distribution set forth in such Registration Statement or
Prospectus as so amended.
(d) Furnish to such selling Holders and Participating Broker-Dealers
who so request (i) upon the Company's receipt, a copy of the order of the SEC
declaring such Registration Statement and any post-effective amendment thereto
effective and (ii) such reasonable number of copies of such Registration
Statement and of each amendment and supplement thereto (in each case including
any documents incorporated therein by reference and all exhibits), (iii) such
reasonable number of copies of the Prospectus included in such Registration
Statement (including each preliminary Prospectus), and such reasonable number of
copies of the final Prospectus as filed by the Company pursuant to Rule 424(b)
under the Securities Act, in conformity with the requirements of the Securities
Act, and (iv) such other documents (including any amendments required to be
filed pursuant to clause (c) of this Section), as any such Person may reasonably
request. The Company hereby consents to the use of the Prospectus by each of the
selling Holders of Registrable Securities or each such Participating
Broker-Dealer, as the case may be, and the underwriters or agents, if any, and
dealers (if any), in connection with the offering and sale of the Registrable
Securities covered by, or the sale by Participating Broker-Dealers of the
Exchange Securities pursuant to, such Prospectus and any amendment thereto.
(e) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, notify the selling Holders of Registrable Securities, their
Special Counsel, each Participating Broker-Dealer and the managing underwriters,
if any, as promptly as possible, and confirm such notice in writing, (i) when a
Prospectus has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act, (ii) of the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of any Prospectus or the initiation of any proceedings for
that purpose, (iii) if, at any time when a Prospectus is required by the
Securities Act to be delivered in
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connection with sales of Registrable Securities, the representations and
warranties of the Company contained in any agreement (including any underwriting
agreement) contemplated by Section 6(n) below cease to be true and correct in
any material respect, (iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable Securities
or the Exchange Securities to be sold by any Participating Broker-Dealer for
offer or sale in any jurisdiction, or the contemplation, initiation or
threatening of any proceeding for such purpose, (v) of the happening of any
event that makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in such Registration Statement, Prospectus or documents so that it will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and (vi) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate.
(f) Prior to any public offering of Registrable Securities or any
delivery of a Prospectus contained in the Exchange Offer Registration Statement
by any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, use its best efforts to register or qualify, and, if
applicable, to cooperate with the selling Holders of Registrable Securities, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of, such Registrable Securities to be included in a Registration
Statement for offer and sale under the securities or Blue Sky laws of such
jurisdictions in the United States as any selling Holder, Participating
Broker-Dealer or the managing underwriters, if any, reasonably request in
writing; and, if Securities are offered other than through an Underwritten
Offering, the Company shall cause its counsel to perform Blue Sky investigations
and file registrations and qualifications required to be filed pursuant to this
Section 6(f) at the expense of the Company; keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all other
acts or things reasonably necessary or advisable to enable the disposition in
such jurisdictions of the Securities covered by the applicable Registration
Statement; provided, that the Company shall not be required in connection
therewith to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction where it is
not now so qualified or to subject itself to
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taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject.
(g) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Registrable Securities for sale
in any jurisdiction, and, if any such order is issued, to use its best efforts
to obtain the withdrawal of any such order at the earliest practicable time.
(h) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, and if requested by the managing underwriters, if any, or the
Holders of a majority in aggregate liquidation preference of the Registrable
Securities, (i) promptly incorporate in a Prospectus or post-effective amendment
such information as the managing underwriters, if any, or such Holders
reasonably request to be included therein required to comply with any applicable
law and (ii) make all required filings of such Prospectus or such post-effective
amendment as soon as practicable after the Company has received notification of
such matters required by applicable law to be incorporated in such Prospectus or
post-effective amendment; provided, that the Company shall not be required to
take any action under this clause (h) that would, in the opinion of counsel to
the Company, violate applicable law.
(i) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, cooperate with the selling Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends and shall be in a form eligible for
deposit with The Depository Trust Company ("DTC"); and enable such Registrable
Securities to be in such denomina-
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tions and registered in such names as the managing underwriters, if any, or
Holders may request at least two Business Days prior to any sale of Registrable
Securities.
(j) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, upon the occurrence of any event contemplated by paragraph
6(e)(v) or 6(e)(vi) above, as promptly as practicable prepare a supplement or
post-effective amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder
or to the purchasers of the Exchange Securities to whom such Prospectus will be
delivered by a Participating Broker-Dealer, such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(k) Use its best efforts to cause the Securities covered by a
Registration Statement to be rated with the appropriate rating agencies, if
appropriate, if so requested by the Holders of a majority in aggregate
liquidation preference of Securities covered by such Registration Statement or
the managing underwriters, if any.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Securities, (i) provide the applicable registrar and
transfer agent with certificates for the Registrable Securities in a form
eligible for deposit with DTC and (ii) provide a CUSIP number for the
Registrable Securities.
(m) [Intentionally Left Blank]
(n) If a Shelf Registration is filed pursuant to Section 3, enter
into such agreements (including an underwriting agreement in form, scope and
substance as is customary in Underwritten Offerings) and take all such other
actions in connection therewith (including those reasonably requested by the
managing underwriters, if any, or the Holders of a majority of the Registrable
Securities being sold) in order to expedite or facilitate the registration or
the
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disposition of such Registrable Securities, and in such connection, whether or
not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, (i) make such representations and
warranties to the Holders and the underwriters, if any, with respect to the
business of the Company and its subsidiaries, and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, in form, substance and scope as are customarily
made by issuers to underwriters in Underwritten Offerings, and confirm the same
if and when reasonably requested; (ii) use its best efforts to obtain opinions
of counsel to the Company and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the Holders of a majority in principal amount of the
Registrable Securities being sold), addressed to each selling Holder of
Registrable Securities and each of the underwriters, if any, covering the
matters customarily covered in opinions requested in Underwritten Offerings;
(iii) use its best efforts to obtain "cold comfort" letters and updates thereof
(which letters and updates (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters) from the independent certified public
accountants of the Company (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to each of
the underwriters and each selling Holder of Registrable Securities, such letters
to be in customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with Underwritten Offerings; and (iv) use
its best efforts to deliver such documents and certificates as may be reasonably
requested by the Holders of a majority in principal amount of the Registrable
Securities being sold and the managing underwriters, if any, to evidence the
continued validity of the representations and warranties of the Company and its
subsidiaries made pursuant to clause (i) above and to evidence compliance with
any conditions contained in the underwriting agreement or other similar
agreement entered into by the Company.
(o) Comply in all material respects with all applicable rules and
regulations of the SEC and make generally available to its security holders
earnings statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month period (or
90 days after the end of any 12-month period if such period is a fiscal year)
(i) commencing on the first day of the fiscal quarter following each fiscal
quarter in which Registrable Securities are
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sold to underwriters in a firm commitment or best efforts underwritten offering
and (ii) if not sold to underwriters in such an offering, commencing on the
first day of the first fiscal quarter of the Company after the effective date of
a Registration Statement, which statements shall cover said 12-month periods.
(p) Upon consummation of an Exchange Offer or Private Exchange,
obtain an opinion of counsel to the Company (in form, scope and substance
customary for underwritten transactions), addressed to all Holders participating
in the Exchange Offer or Private Exchange, as the case may be, to the effect
that (i) the issuance and exchange of the Exchange Securities or the Private
Exchange Securities, as the case may be, is duly authorized by the Company's
charter documents and has been duly authorized by the Company, (ii) the Exchange
Securities or the Private Exchange Securities, as the case may be, will be duly
and validly issued, fully paid and nonassessable; and, to the knowledge of such
counsel, there are no preemptive or similar rights with respect to the issuance
of such Shares and (iii) the rights, preferences and privileges of the Exchange
Securities or the Private Exchange Securities, as the case may be, are as stated
in the Certificate of Designation.
(q) If an Exchange Offer or Private Exchange is to be consummated,
upon delivery of the Registrable Securities by such Holders to the Company (or
to such other Person as directed by the Company) in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be, the Company
shall xxxx, or caused to be marked, on such Registrable Securities that such
Registrable Securities are being cancelled in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be; in no event
shall such Registrable Securities be marked as paid or otherwise satisfied.
(r) Cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD.
(s) Use its best efforts to take all other steps necessary to effect
the registration of the Registrable Securities covered by a Registration
Statement contemplated hereby.
The Company may require each seller of Registrable Securities or
Participating Broker-Dealer as to which any registration is being effected to
furnish
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to the Company such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Securities or Exchange
Securities as the Company may, from time to time, reasonably request and to
provide comments with respect to the Registration Statement to be used in
connection with any Shelf Registration. The Company may exclude from such
registration the Registrable Securities or Exchange Securities of any Seller so
long as such seller fails to furnish such information.
Each Holder of Registrable Securities and each Participating
Broker-Dealer agrees by acquisition of such Registrable Securities or Exchange
Securities of any Participating Broker-Dealer that, upon receipt of written
notice from the Company of the happening of any event of the kind described in
Section 6(e)(ii), 6(e)(iv), 6(e)(v) or 6(e)(vi), such Holder will forthwith
discontinue disposition (in the jurisdictions specified in a notice of a
6(e)(iv) event, and elsewhere in a notice of a 6(e)(ii), 6(e)(v) or 6(e)(vi)
event) of such Registrable Securities covered by such Registration Statement or
Prospectus to be sold by such Holder until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 6(j), or until
it is advised in writing (the "Advice") by the Company that offers or sales in a
particular jurisdiction may be resumed or that the use of the applicable
Prospectus may be resumed, as the case may be, and has received copies of any
amendments or supplements thereto. If the Company shall give such notice, each
of the Effectiveness Period and the Applicable Period shall be extended by the
number of days during such periods from and including the date of the giving of
such notice to and including the date when each seller of such Registrable
Securities covered by such Registration Statement shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 6(j) or
(y) the Advice.
7 Registration Expenses
(a) All fees and expenses incident to the Company's performance of
or compliance with this Agreement shall be borne by the Company whether or not
the Exchange Offer or a Shelf Registration is filed or becomes effective,
including, without limitation:
(i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the
NASD by the Purchasers or in connection with an underwritten offering and
(B) fees and expenses of compliance with state securities or Blue Sky
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laws (including, without limitation, reasonable fees and disbursements of
counsel in connection with Blue Sky qualifications of the Registrable
Securities or Exchange Securities and determination of the eligibility of
the Registrable Securities or Exchange Securities for investment under the
laws of such jurisdictions (x) where the Holders of Registrable Securities
are located, in the case of the Exchange Securities, or (y) as provided in
Section 6(f), in the case of Registrable Securities or Exchange Securities
to be sold by a Participating Broker-Dealer during the Applicable Period);
(ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable Securities or Exchange
Securities in a form eligible for deposit with DTC and of printing
prospectuses if the printing of prospectuses is requested by the managing
underwriters, if any, or, in respect of Registrable Securities or Exchange
Securities to be sold by a Participating Broker-Dealer during the
Applicable Period, by the Holders of a majority in aggregate liquidation
preference of the Registrable Securities included in any Registration
Statement or of such Exchange Securities, as the case may be);
(iii) messenger, telephone, duplication, word processing
and delivery expenses incurred by the Company in the performance of its
obligations hereunder;
(iv) fees and disbursements of counsel for the Company;
(v) fees and disbursements of all independent certified
public accountants for the Company referred to in Section 6(n)(iii)
(including, without limitation, the expenses of any special audit and
"cold comfort" letters required by or incident to such performance);
(vi) fees and expenses of any "qualified independent
underwriter" or other independent appraiser participating in an offering
pursuant to Section 3 of Schedule E to the By-laws of the NASD, but only
where the need for such a "qualified independent underwriter" arises due
to a relationship with the Company;
(vii) Securities Act liability insurance, if the Company
so desires such insurance;
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(viii) fees and expenses of all other Persons retained
by the Company; internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees of the
Company performing legal or accounting duties); and the expense of any
annual audit; and
(ix) rating agency fees and the fees and expenses
incurred in connection with the listing of the Securities to be registered
on any securities exchange.
(b) The Company shall reimburse the Holders for the reasonable fees
and disbursements of not more than one counsel chosen by the holders of a
majority in aggregate principal amount of the Registrable Securities to be
included in any Registration Statement. Notwithstanding the foregoing, each
Holder shall pay all underwriting discounts and commissions of any underwriters
with respect to any Registrable Securities sold by or on its behalf.
8 Indemnification
(a) Indemnification by the Company. The Company shall, without
limitation as to time, indemnify and hold harmless each Holder, each
Participating Broker-Dealer selling Exchange Securities, each Person who
controls each such Holder or such Participating Broker-Dealer (within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act) and the officers, directors, partners, employees, representatives and
agents of each such Holder, Participating Broker-Dealer and controlling person,
to the fullest extent lawful, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation, costs of preparation
and reasonable attorneys' fees) and expenses (including, without limitation,
reasonable costs and expenses incurred in connection with investigating,
preparing, pursuing or defending against any of the foregoing) (collectively,
"Losses"), as incurred, directly or indirectly caused by, related to, based
upon, arising out of or in connection with any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, Prospectus
or form of prospectus, or in any amendment or supplement thereto, or in any
preliminary prospectus, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading except insofar as such Losses arise out of or are based upon
information relating to such Holder or Participating Broker-Dealer and furnished
in writing to
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the Company by, and relating to, such Holder or Participating Broker-Dealer
expressly for use therein. The Company shall also indemnify underwriters,
selling brokers, dealer managers and similar securities industry professionals
participating in the distribution, their officers, directors, agents and
employees and each Person who controls such Persons (within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act) to the
same extent as provided above with respect to the indemnification of the Holders
or the Participating Broker-Dealers except insofar as such Losses are based
solely upon (i) information furnished by such party to the Company expressly for
use therein or (ii) such underwriter's gross negligence or willful misconduct.
The foregoing indemnity with respect to any preliminary prospectus shall not
inure to the benefit of any indemnified person from whom the person asserting
such Losses purchased securities if such untrue statement or omission or alleged
untrue statement or omission made in such preliminary prospectus is eliminated
or remedied in the Prospectus and a copy of the Prospectus shall not have been
furnished to such person in a timely manner due to the action or inaction of
such indemnified person.
(b) Indemnification by Holder of Registrable Securities. In
connection with any Registration Statement, Prospectus or form of prospectus,
any amendment or supplement thereto, or any preliminary prospectus in which a
Holder is participating, such Holder shall furnish to the Company in writing
such information as the Company reasonably requests for use in connection with
any Registration Statement, Prospectus or form of prospectus, any amendment or
supplement thereto, or any preliminary prospectus and shall, without limitation
as to time, indemnify and hold harmless the Company, its directors, officers,
agents and employees, each Person, if any, who controls the Company (within the
meaning of Section 15 of the Securities Act and Section 20(a) of the Exchange
Act), and the directors, officers, representatives, agents or employees of such
controlling persons, to the fullest extent lawful, from and against all Losses
arising out of or based upon any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or form of
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement of a material fact or omission or alleged omission of a material fact
is contained in any information so furnished in writing by such Holder to the
Company expressly for use therein.
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(c) Conduct of Indemnification Proceedings. If any Proceedings shall
be brought or asserted against any Person entitled to indemnity hereunder (an
"indemnified party"), such indemnified party shall promptly notify the party or
parties from which such indemnity is sought (the "indemnifying parties") in
writing; provided, however, that the failure to so notify the indemnifying
parties shall not relieve the indemnifying parties from any obligation or
liability except to the extent (but only to the extent) that it shall be finally
determined by a court of competent jurisdiction (which determination is not
subject to appeal) that the indemnifying parties have been prejudiced materially
by such failure.
The indemnifying party shall have the right, exercisable by giving
written notice to an indemnified party, within 20 business days after receipt of
written notice from such indemnified party of such Proceeding, to assume, solely
at its expense, the defense of any such Proceeding, provided, however, that an
indemnified party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such indemnified party or parties
unless: (1) the indemnifying party has agreed to pay such fees and expenses; or
(2) the indemnifying party shall have failed promptly to assume the defense of
such Proceeding or shall have failed to employ counsel reasonably satisfactory
to such indemnified party; or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such indemnified party and the
indemnifying party or any of its affiliates or controlling persons, and such
indemnified party shall have been advised by counsel that there may be one or
more defenses available to such indemnified party that are in addition to, or in
conflict with, those defenses available to the indemnifying party or such
affiliate or controlling person (in which case, if such indemnified party
notifies the indemnifying parties in writing that it elects to employ separate
counsel at the expense of the indemnifying parties, the indemnifying parties
shall not have the right to assume the defense thereof and the reasonable fees
and expenses of such counsel shall be at the expense of the indemnifying party;
it being understood, however, that, the indemnifying party shall not, in
connection with any one such Proceeding or separate but substantially similar or
related Proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for such indemnified party).
No indemnifying party shall be liable for any settlement of any such
Proceeding effected without its written consent, which consent shall not be
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unreasonably withheld, but if settled with its written consent, or if there be a
final judgment for the plaintiff in any such Proceeding, each indemnifying party
jointly and severally agrees, subject to the exceptions and limitations set
forth above, to indemnify and hold harmless each indemnified party from and
against any and all Losses by reason of such settlement or judgment. The
indemnifying party shall not consent to the entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to each indemnified party of a release, in form and
substance reasonably satisfactory to the indemnified party, from all liability
in respect of such Proceeding for which such indemnified party would be entitled
to indemnification hereunder (whether or not any indemnified party is a party
thereto).
(d) Contribution. If the indemnification provided for in this
Section 8 is unavailable to an indemnified party or is insufficient to hold such
indemnified party harmless for any Losses in respect of which this Section 8
would otherwise apply by its terms (other than by reason of exceptions provided
in this Section 8), then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and several obligation
to contribute to the amount paid or payable by such indemnified party as a
result of such Losses, (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party, on the one hand, and such
indemnified party, on the other hand, from the offering of the shares of
Preferred Stock, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the indemnifying party, on the one hand, and such indemnified party, on
the other hand in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party, on the one hand, and indemnified
party, on the other hand, shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent any such statement or omission. The amount paid or payable by an
indemnified party as a result of any Losses shall be deemed to include any
reasonable legal or other fees or expenses actually incurred by such party in
connection with any Proceeding, to the extent such party would have been
indemnified for such fees or expenses if the indemnification provided for in
Section 8(a) or 8(b) was available to such party.
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The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), an indemnifying party that
is a selling Holder of Registrable Securities shall not be required to
contribute, in the aggregate, any amount in excess of such Holder's Maximum
Contribution Amount. A selling Holder's "Maximum Contribution Amount" shall
equal the excess of (i) the aggregate proceeds received by such Holder pursuant
to the sale of such Registrable Securities over (ii) the aggregate amount of
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement of a material fact or omission or alleged
omission of a material fact. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution agreements contained in this Section
8 are in addition to any liability that the indemnifying parties may have to the
indemnified parties, provided, that any excess payment made by the Company shall
be refunded to the Company by the indemnified party receiving such excess
payment.
9 Rule 144 and Rule 144A
The Company covenants that it shall (a) file the reports required to
be filed by it (if so required) under the Securities Act and the Exchange Act in
a timely manner and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder make available other
information necessary to permit sales pursuant to Rule 144 and Rule 144A and (b)
take such further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act pursuant to the exemptions
provided by Rule 144 and Rule 144A. Nothing in this Section 9 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
10 Underwritten Registrations
If any of the Registrable Securities covered by any Shelf
Registration are to be sold in an Underwritten Offering, the investment banker
or invest-
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ment bankers and manager or managers that will manage the offering will be
selected by the Holders of a majority in aggregate liquidation preference of
such Registrable Securities included in such offering with the written consent
of the Company, which consent will not be unreasonably withheld.
No Holder of Registrable Securities may participate in any
Underwritten Registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
11 Miscellaneous
(a) Remedies. In the event of a breach by the Company of any of its
obligations under this Agreement, each Holder, in addition to being entitled to
exercise all rights provided herein, or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not entered into, as
of the date hereof, and shall not enter into, after the date of this Agreement,
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of at least a majority of the then outstanding aggregate liquidation preference
of Registrable Securities; provided, however, that Section 8 shall not be
amended, modified or supplemented, and waivers or consents to departures from
this proviso may not be given, unless the Company has obtained the written
consent of each
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Holder. Notwithstanding the foregoing, a waiver or consent to depart from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Registrable Securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of at least a majority in
aggregate liquidation preference of the Registrable Securities being sold by
such Holders pursuant to such Registration Statement, provided, that the
provisions of this sentence may not be amended, modified or supplemented except
in accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Registrar and
Transfer Agent) provided for or permitted hereunder shall be made in writing by
hand-delivery, certified first-class mail, return receipt requested, next-day
air courier or facsimile:
(i) if to a Holder, at the most current address given by
such Holder to the Company in accordance with the provisions of this
Section 11(d), which address initially is, with respect to each Holder,
the address of such Holder maintained by the Registrar and Transfer Agent,
with a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, telecopy number (000) 000-0000,
Attention: Xxxxxxx X. Xxxxxxxx, Esq.; and
(ii) if to the Company, 000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000, Attention: Chief Executive Officer, and thereafter at such
other address, notice of which is given in accordance with the provisions
of this Section 11(d), with a copy to Dechert Price & Xxxxxx, 4000 Xxxx
Atlantic Tower, 0000 Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000,
Attention: Xxxxxxxxxxx X. Xxxxxx.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if telecopied.
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Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Registrar and
Transfer Agent at the following address: _______________, Attention: ______.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS
MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE COMPANY
IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TO THE SERVICE OF PRO-
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CESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
THE COMPANY AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER
SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement, and is 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. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by the Company in
respect of securities sold pursuant to the Purchase Agreement. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(k) Attorneys' Fees. In any action or Proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the prevailing party, as determined by the courts, shall
be entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
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(l) Securities Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
its affiliates (as such term is defined in Rule 405 under the Securities Act)
(other than the Holders that are deemed to be such affiliates solely by reason
of their holdings of such Registrable Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
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REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
XXXXX MATERIAL HANDLING COMPANY
By: /s/ Xxxxxx X. Xxxxx
______________________________________
Name: Xxxxxx X. Xxxxx, Xx.
Title: President and CEO
ACCEPTED AND AGREED TO:
XXXXXXXXX & COMPANY, INC.
By: /s/ Xxxxxx Xxxx
_____________________________
Name: Xxxxxx Xxxx
Title: Vice President
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxx X. Xxxx
____________________________
Name: Xxxxx X. Xxxx
Title: President and CEO
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