EXHIBIT 4.7
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT dated as of
October 14, 1999, among CORNELL CORRECTIONS,
INC., a Delaware corporation (the
"Corporation") and the Investors (as defined
herein).
The Investors own or have the right to acquire Common Stock (as herein
defined) of the Corporation. The parties hereto deem it to be in their
respective best interests to set forth in this Registration Rights Agreement
(the "Agreement") the rights of the Investors in connection with public
offerings and sales of the Common Stock.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
obligations hereinafter set forth, the Corporation and the Investors hereby
agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the
following terms shall have the following meanings:
(a) "Commission" shall mean the Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act.
(b) "Common Stock" shall mean the Common Stock, par value $.001 per share,
of the Corporation or any securities into which such Common Stock shall have
been converted.
(c) "Exchange Act" shall mean the Securities Exchange Act of 1934 or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
(d) "ING" shall mean ING (U.S.) Capital LLC, a Delaware limited liability
company.
(e) "Investors" shall mean the parties set forth on Schedule I hereto, and
shall include any successor to, or assignee or transferee of, any of the
Investors who or which agrees in writing to be treated as an Investor and to be
bound by the terms and comply with all applicable provisions hereof.
1
(f) "Major Stockholder" shall mean Xxxxx X. Xxxxxxx.
(g) "1994 Registration Rights Agreement" shall mean the registration
rights agreement identified on Schedule II hereto.
(h) "1994 Shares" shall mean shares of Common Stock the holders of which
have demand or piggyback registration rights pursuant to the 1994 Registration
Rights Agreement.
(i) "Other Shares" shall mean at any time those shares of Common Stock
which do not constitute Primary Shares or Registrable Shares.
(j) "Person" shall mean and include any natural person, company,
partnership, joint venture, corporation, business trust, unincorporated
organization or governmental authority.
(k) "Primary Shares" shall mean at any time authorized but unissued shares
of Common Stock or shares of Common Stock held by the Corporation in its
treasury.
(l) "Registrable Shares" shall mean the shares of Common Stock held by the
Investors which constitute Restricted Shares.
(m) "Requisite Holders" shall mean the holders of at least 50% of the
Restricted Shares held by the Investors at the date of determination voting
together as a single class.
(n) "Restricted Shares" shall mean the Warrants, Warrant Shares and any
shares of Common Stock or other securities received in respect thereof, which
are held by the Investors and which theretofore have not been sold to the public
pursuant to a registration statement under the Securities Act or pursuant to
Rule 144.
(o) "Rule 144" shall mean Rule 144 promulgated under the Securities Act or
any successor rule thereto or any complementary rule thereto (such as Rule
144A).
(p) "Securities Act" shall mean the Securities Act of 1933 or any
successor Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
(q) "Transfer" shall include any disposition of any Restricted Shares or
of any interest therein which would constitute a sale thereof within the meaning
of the Securities Act other than any such disposition pursuant to an effective
registration statement under the Securities Act and complying with all
applicable state securities and "blue sky" laws.
2
(r) "Warrant" shall mean any warrant issued by the Corporation pursuant to
the Warrant Issuance Agreement, and any new warrant or warrants issued by the
Corporation upon a transfer, division or combination thereof in accordance with
such Warrant Issuance Agreement.
(s) "Warrant Issuance Agreement" shall mean the Warrant Issuance Agreement
dated as of the date hereof, between the Corporation and ING.
(t) "Warrant Shares" shall mean, as of the date of determination, the
securities issued or issuable upon the exercise of the Warrant (whether or not
exercised) as of such date. For purposes of this Agreement, prior to the
exercise of any Warrant, the Warrant Shares issuable upon such exercise shall be
deemed to be held by the holder of such Warrant.
SECTION 2. REQUIRED REGISTRATION. If on any date prior to the ninth
anniversary hereof, the Corporation shall be requested in writing by the
Requisite Holders to effect the registration under the Securities Act of
Registrable Shares, the Corporation shall promptly notify in writing each
Investor who or which is not a signatory to such request and shall promptly
thereafter use its best efforts to effect the registration under the Securities
Act of the Registrable Shares requested by the Investors (pursuant to such
initial request or in response to receiving a copy thereof) to be so registered;
PROVIDED, HOWEVER, that the Corporation shall not be obligated to effect any
registration under the Securities Act except in accordance with the following
provisions:
(a) the Corporation shall not be obligated to use its best efforts
to file and cause to become effective (i) more than one registration
statement initiated pursuant to this Section 2 pursuant to which the
Registrable Shares included therein have been effectively sold thereunder;
PROVIDED, HOWEVER, that any registration proceeding begun pursuant to this
Section 2 which is subsequently withdrawn at the request of the holders of
a majority of the Registrable Shares held by the Investors to be
registered shall count towards such one registration statement which the
Investors have the right to cause the Corporation to effect pursuant to
this Section 2; PROVIDED FURTHER, HOWEVER, that such withdrawn
registration shall not be so counted if such withdrawal is based upon
material adverse information relating to the Corporation or its condition,
business, or prospects which is different from that generally known to the
Investors at the time of their request or (ii) any registration statement
during any period in which any other registration statement (other than on
Form S-4 or Form S-8 promulgated under the Securities Act or any successor
forms
3
thereto) pursuant to which Primary Shares are to be or were sold has been
filed and not withdrawn or has been declared effective within the prior 90
days;
(b) the Corporation may delay the filing or effectiveness of any
registration statement for a period of up to 90 days after the date of a
request for registration pursuant to this Section 2 if (i) at the time of
such request the Corporation is engaged, or has fixed plans to engage
within 60 days of the time of such request, in a firm commitment
underwritten public offering of Primary Shares or (ii) the Corporation
shall furnish to the Investors requesting such registration a certificate
signed by the President of the Corporation stating that, in the good faith
judgment of the Board of Directors of the Corporation, it would be
seriously detrimental to the Corporation and its shareholders for such
registration statement to be filed and it is therefore essential to defer
the filing of such registration statement (provided that the Corporation
may not utilize the right set forth in this clause (ii) more than once in
any twelve (12) month period);
(c) with respect to any registration pursuant to this Section 2, the
Corporation may include in such registration any Primary Shares or Other
Shares; PROVIDED, HOWEVER, that if the managing underwriter advises the
Corporation that the inclusion of all Registrable Shares, Primary Shares
and Other Shares proposed to be included in such registration would
interfere with the successful marketing (including pricing) of the
Registrable Shares proposed to be included in such registration, then the
number of Registrable Shares, Primary Shares and Other Shares proposed to
be included in such registration shall be included in the following order:
(i) FIRST, the Registrable Shares and 1994 Shares requested to
be included in such registration PRO RATA, based upon the number of
Restricted Shares (based upon Common Stock equivalents) owned at the
time by each Investor and the number of 1994 Shares owned at the
time by each holder of 1994 Shares;
(ii) SECOND, the Primary Shares; and
(iii) THIRD, the Other Shares.
(d) if a registration required pursuant to this Section 2 involves
an underwritten offering, the underwriter or underwriters thereof shall be
selected by the Corporation and shall be reasonably acceptable to the
Requisite Holders.
4
SECTION 3. PIGGYBACK REGISTRATION. (a) If the Corporation at any time
proposes for any reason to register Primary Shares or Other Shares under the
Securities Act (other than on Form S-4 or Form S-8 promulgated under the
Securities Act or any successor forms thereto), it shall promptly give written
notice to the Investors of its intention so to register the Primary Shares or
Other Shares and, upon the written request, given within 30 days (20 days in the
event the Corporation proposes to register Primary Shares or Other Shares on a
shelf registration statement) after delivery of any such notice by the
Corporation, of the Investors to include in such registration Registrable Shares
(which request shall specify the number of Registrable Shares proposed to be
included in such registration), the Corporation shall use its best efforts to
cause all such Registrable Shares to be included in such registration on the
same terms and conditions as the securities otherwise being sold in such
registration; PROVIDED, HOWEVER, that if the managing underwriter advises the
Corporation that the inclusion of all Registrable Shares or Other Shares
proposed to be included in such registration would interfere with the successful
marketing (including pricing) of Primary Shares proposed to be registered by the
Corporation, then the number of Primary Shares, Registrable Shares and Other
Shares proposed to be included in such registration shall be included in the
following order:
(i) FIRST, the Primary Shares; and
(ii) SECOND, the Registrable Shares, 1994 Shares and Other Shares
requested to be included in such registration PRO RATA, based upon the
number of Restricted Shares (based upon Common Stock equivalents) owned at
the time by each Investor and the number of Other Shares owned at the time
by each holder of Other Shares.
(b) If at any time after giving written notice pursuant to this
Section 3 of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Corporation shall determine for any reason either not to
register or to delay registration of such securities, the Corporation may,
at its election, give written notice of such determination to the
Investors and, thereupon, (i) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration and (ii) in the case of a
determination to delay registering, shall be permitted to delay
registering any Registerable Securities, for the same period as the delay
in registering such other securities.
5
(c) If a registration under this Section 3 involves an underwritten
offering, the underwriter or underwriters and any additional investment
bankers and managers to be used in connection with such registration shall
be selected by the Corporation, and any Investor desiring to have
Registrable Shares included in such registration shall be required to sign
an underwriting agreement in customary form with such underwriter or
underwriters.
SECTION 4. HOLDBACK AGREEMENT. If the Corporation at any time shall
register shares of Common Stock under the Securities Act (including any
registration pursuant to Sections 2 or 3) for sale to the public, the Investors
shall not sell publicly, make any short sale of, grant any option for the
purchase of, or otherwise dispose publicly of, any Restricted Shares (other than
those shares of Common Stock included in such registration pursuant to Sections
2 or 3) without the prior written consent of the Corporation for a period
designated by the Corporation in writing to the Investors, which period shall
not begin more than 10 days prior to the effectiveness of the registration
statement pursuant to which such public offering shall be made and shall not
last more than 90 days after the effective date of such registration statement;
PROVIDED, HOWEVER, that such period shall not be any longer than the shortest
such period applicable to Major Stockholder, any affiliate of Major Stockholder
in such circumstances.
SECTION 5. PREPARATION AND FILING. If and whenever the Corporation is
under an obligation pursuant to the provisions of this Agreement to use its best
efforts to effect the registration of any Registrable Shares, the Corporation
shall, as expeditiously as practicable:
(a) use its best efforts to cause a registration statement that
registers such Registrable Shares to become and remain effective for a
period of 180 days or until all of such Registrable Shares have been
disposed of (if earlier);
(b) furnish, at least five business days before filing a
registration statement that registers such Registrable Shares, a
prospectus relating thereto or any amendments or supplements relating to
such a registration statement or prospectus, to one counsel selected by
the Investors (the "Investors' Counsel"), copies of all such documents
proposed to be filed (it being understood that such five-business-day
period need not apply to successive drafts of the same document proposed
to be filed so long as such successive drafts are supplied to the
Investors' Counsel in advance of the proposed filing by a period of time
that is customary and reasonable under the circumstances);
6
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for at least a period of 180 days or until all of such
Registrable Shares have been disposed of (if earlier) and to comply with
the provisions of the Securities Act with respect to the sale or other
disposition of such Registrable Shares;
(d) notify in writing the Investors' Counsel promptly (i) of the
receipt by the Corporation of any notification with respect to any
comments by the Commission with respect to such registration statement or
prospectus or any amendment or supplement thereto or any request by the
Commission for the amending or supplementing thereof or for additional
information with respect thereto, (ii) of the receipt by the Corporation
of any notification with respect to the issuance by the Commission of any
stop order suspending the effectiveness of such registration statement or
prospectus or any amendment or supplement thereto or the initiation or
threatening of any proceeding for that purpose and (iii) of the receipt by
the Corporation of any notification with respect to the suspension of the
qualification of such Registrable Shares for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purposes;
(e) use its best efforts to register or qualify such Registrable
Shares under such other securities or blue sky laws of such jurisdictions
as the Investors reasonably request and do any and all other acts and
things which may be reasonably necessary or advisable to enable the
Investors to consummate the disposition in such jurisdictions of the
Registrable Shares owned by the Investors; PROVIDED, HOWEVER, that the
Corporation will not be required to qualify generally to do business,
subject itself to general taxation or consent to general service of
process in any jurisdiction where it would not otherwise be required to do
so but for this paragraph (e);
(f) furnish to the Investors such number of copies of a summary
prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents as the Investors may reasonably request in order to facilitate
the public sale or other disposition of such Registrable Shares;
(g) use its best efforts to cause such Registrable Shares to be
registered with or approved by such other governmental agencies or
authorities as may be necessary by
7
virtue of the business and operations of the Corporation to
enable the Investors to consummate the disposition of such
Registrable Shares;
(h) notify the Investors on a timely basis at any time when a
prospectus relating to such Registrable Shares is required to be delivered
under the Securities Act within the appropriate period mentioned in
subparagraph (a) of this Section 5, of the happening of any event as a
result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances
then existing and, at the request of the Investors (subject to delay
rights under Section 2(b)), prepare and furnish to the Investors a
reasonable number of copies of a supplement to or amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
offerees of such shares, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(i) make available for inspection by the Investors, any underwriter
participating in any disposition pursuant to such registration statement
and any attorney, accountant or other agent retained by the Investors or
any underwriter (collectively, the "Inspectors"), all pertinent financial
and other records, pertinent corporate documents and properties of the
Corporation (collectively, the "Records"), as shall be reasonably
necessary to enable them to exercise their due diligence responsibility,
and cause the Corporation's officers, directors and employees to supply
all information (together with the Records, the "Information") reasonably
requested by any such Inspector in connection with such registration
statement. Any of the Information which the Corporation determines in good
faith to be confidential, and of which determination the Inspectors are so
notified, shall not be disclosed by the Inspectors unless (i) (subject to
delay rights under Section 2(b)) the disclosure of such Information is
necessary to avoid or correct a material misstatement or omission in the
registration statement, (ii) the release of such Information is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction or (iii) such Information has been made generally available
to the public. The Investors agree that they will, upon learning that
disclosure of such Information is sought in a court of competent
jurisdiction, give notice to the Corporation and
8
allow the Corporation, at the Corporation's expense, to undertake
appropriate action to prevent disclosure of the Information deemed
confidential. If there is a reasonable likelihood, in the judgment of the
Corporation (based on written advice of counsel), that compliance with the
provisions of this subsection (i) could result in the loss of any
attorney-client privilege related to the Records, the Corporation will not
be required to comply with such provisions to the extent necessary to
avoid the loss of such privilege; PROVIDED, HOWEVER, that if the
Corporation chooses not to comply with such provisions under the foregoing
circumstance then each of the Investors participating in such registration
shall have the right to withdraw from such registration, such registration
shall not be counted toward any limitation contained in Section 2 with
respect to the number of registrations permitted to be requested and the
Corporation shall pay or reimburse the Investors on demand for all fees
and expenses incurred by them in connection with such registration.
(j) use its best efforts to obtain from its independent certified
public accountants "cold comfort" letters in customary form and at
customary times and covering matters of the type customarily covered by
cold comfort letters;
(k) use its best efforts to obtain from its counsel an opinion or
opinions in customary form;
(l) provide a transfer agent and registrar (which may be the same
entity and which may be the Corporation) for such Registrable Shares;
(m) issue to any underwriter to which the Investors may sell shares
in such offering certificates evidencing such Registrable Shares;
(n) list such Registrable Shares on any national securities exchange
on which any shares of the Common Stock are listed or, if the Common Stock
is not listed on a national securities exchange, use its best efforts to
qualify such Registrable Shares for inclusion on the automated quotation
system of the National Association of Securities Dealers, Inc. (the
"NASD") or, at the Corporation's option, a national securities exchange;
(o) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make available to its
securityholders, as soon as reasonably practicable, earnings statements
(which need not be audited) covering a period of 12 months beginning
within three months
9
after the effective date of the registration statement, which earnings
statements shall satisfy the provisions of Section 11(a) of the Securities
Act; and
(p) use its best efforts to take all other steps necessary to effect
the registration of such Registrable Shares contemplated hereby.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the
Corporation of the occurrence of any event of the kind described in
subsection (h) of this Section 5, such holder will forthwith discontinue
such holder's disposition of Registrable Securities pursuant to the
registration statement relating to such Registrable Securities until such
holder's receipt of the copies of the supplemented or amended prospectus
contemplated by subsection (h) of this Section 5 and, if so directed by
the Corporation, will deliver to the Corporation (at the Corporation's
expense) all copies, other than permanent file copies, then in such
holder's possession of the prospectus relating to such Registrable
Securities currently at the time of receipt of such notice.
SECTION 6. EXPENSES. All expenses incurred by the Corporation in complying
with Section 5, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD), fees and expenses of
complying with securities and blue sky laws, printing expenses, fees and
expenses of the Corporation's counsel and accountants and fees and expenses of
one counsel for the Investors shall be paid by the Corporation; PROVIDED,
HOWEVER, that all underwriting discounts and selling commissions applicable to
the Registrable Shares shall not be borne by the Corporation but shall be borne
by the Investors in proportion to the number of Registrable Shares sold by each
of them.
SECTION 7. INDEMNIFICATION. In connection with any registration of any
Registrable Shares under the Securities Act, the Corporation shall indemnify and
hold harmless the holders of Registrable Shares, each underwriter, broker or any
other person acting on behalf of the holders of Registrable Shares and each
other person, if any, who controls any of the foregoing persons within the
meaning of the Securities Act against any losses, claims, damages or
liabilities, joint or several (or actions in respect thereof), to which any of
the foregoing persons may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in the registration statement under which
such
10
Registrable Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading or, with respect to any prospectus, necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
or any violation by the Corporation of the Securities Act or state securities or
blue sky laws applicable to the Corporation and relating to action or inaction
required of the Corporation in connection with such registration or
qualification under such state securities or blue sky laws; and shall reimburse
the holders of Registrable Shares, such underwriter, such broker or such other
person acting on behalf of the holders of Registrable Shares and each such
controlling person on demand for any legal or other expenses reasonably incurred
by any of them in connection with investigating or defending any such loss,
claim, damage, liability or action; PROVIDED, HOWEVER, that the Corporation
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in said
registration statement, preliminary prospectus, final prospectus, amendment,
supplement or document incident to registration or qualification of any
Registrable Shares in reliance upon and in conformity with written information
furnished to the Corporation by the holders of Registrable Shares or underwriter
specifically for use in the preparation thereof.
In connection with any registration of Registrable Shares under the
Securities Act pursuant to this Agreement, each holder of Registrable Shares
shall severally indemnify and hold harmless (in the same manner and to the same
extent as set forth in the preceding paragraph of this Section 7) the
Corporation, each director of the Corporation, each officer of the Corporation
who shall sign such registration statement, each underwriter, broker or other
person acting on behalf of the Corporation or the holders of Registrable Shares,
each holder of Registrable Shares and each person who controls any of the
foregoing persons within the meaning of the Securities Act with respect to any
statement or omission from such registration statement, any preliminary
prospectus or final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to the Corporation or such underwriter by the holders of Registrable
Shares specifically for use in connection with the
11
preparation of such registration statement, preliminary prospectus, final
prospectus, amendment, supplement or document; PROVIDED, HOWEVER, that the
maximum amount of liability in respect of such indemnification shall be limited,
in the case of each seller of Registrable Shares, to an amount equal to the net
proceeds actually received by such Seller from the sale of Registrable Shares
effected pursuant to such registration.
Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this Section 7, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action. In case any such action is brought against
an indemnified party, the indemnifying party will be entitled to participate in
and to assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be responsible for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof; PROVIDED, HOWEVER, that if any indemnified party shall have
reasonably concluded that there may be one or more legal or equitable defenses
available to such indemnified party which are additional to or conflict with
those available to the indemnifying party, or that such claim or litigation
involves or could have an effect upon matters beyond the scope of the indemnity
agreement provided in this Section 7, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party
with respect to such additional or conflicting legal or equitable defenses or
such matters and such indemnifying party shall reimburse such indemnified party
and any person controlling such indemnified party for that portion of the
reasonable fees and expenses of any counsel retained by the indemnified party
which is reasonably related to the matters covered by the indemnity agreement
provided in this Section 7.
If the indemnification provided for in this Section 7 is held by a court
of competent jurisdiction to be unavailable to an indemnified party with respect
to any loss, claim, damage, liability or action referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amounts paid or payable by such indemnified party as a
result of such loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the statements
or omissions which resulted in such loss, claim,
12
damage, liability or action as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
SECTION 8. UNDERWRITING AGREEMENT. To the extent that the Investors shall
enter into an underwriting or similar agreement, which agreement contains
provisions customary in scope and form covering one or more issues addressed in
Sections 4, 5, 6 and 7, the provisions contained in such underwriting agreement
shall control as to the party or parties so entering into such underwriting
agreement.
SECTION 9. INFORMATION BY HOLDER. Each of the Investors shall furnish to
the Corporation such written information regarding the Investors and the
distribution proposed by the Investors as the Corporation may reasonably request
in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement.
SECTION 10. EXCHANGE ACT COMPLIANCE; RULE 144 AND RULE 144A. (a) From such
date as a registration statement filed by the Corporation pursuant to the
Exchange Act relating to any class of the Corporation's securities shall have
become effective, the Corporation shall comply with all of the reporting
requirements of the Exchange Act (whether or not it shall be required by the
terms of such Act to do so) to the extent necessary to enable the Investors to
avail themselves of the benefits of Rule 144 or Rule 144A under the Securities
Act or any successor rules or regulations.
(b) With a view to making available the benefits of certain rules and
regulations of the Commission that may at any time permit the resale of the
Restricted Shares without registration, the Corporation will:
(i) at all times after 90 days after any registration statement
covering a public offering of securities of the Corporation under the
Securities Act shall have become effective:
(A) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
13
(B) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the
Corporation under the Securities Act and the Exchange Act; and
(C) furnish to each holder of Restricted Shares forthwith upon
request a written statement by the Corporation as to its compliance
with the reporting requirements of such Rule 144 and of the
Securities Act and the Exchange Act, a copy of the most recent
annual or quarterly report of the Corporation, and such other
reports and documents so filed by the Corporation as such holder may
reasonably request in availing itself of any rule or regulation of
the Commission allowing such holder to sell any Restricted Shares
without registration; and
(ii) at any time, at the request of the holder of Restricted
Shares, make available to such holder and to any prospective
transferee of such Restricted Shares the information concerning the
Corporation described in Rule 144A(d)(4) under the Securities Act.
SECTION 11. NO CONFLICT OF RIGHTS. The Corporation represents and warrants
to the Investors that any and all of the registration rights granted to any
Person, other than the registration rights granted to the Investors hereby, as
of the date hereof, are listed on Schedule II hereto. The Corporation shall not,
after the date hereof, grant any registration rights which conflict with or
impair the registration rights granted to the Investors hereby.
SECTION 12. TERMINATION. This Agreement shall terminate and be of no
further force or effect when there shall not be any Registrable Shares and all
the shares of Common Stock which would be received upon exercise, exchange or
conversion of any security included in Restricted Shares would not be
Registrable Shares.
SECTION 13. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to
the benefit of the Corporation and the Investors, and subject to Section 14, the
respective successors and assigns of the Corporation and the Investors.
SECTION 14. ASSIGNMENT. Each Investor may assign its rights hereunder to
any purchaser or transferee of Restricted Shares; PROVIDED, HOWEVER, that such
purchaser or transferee shall, as a condition to the effectiveness of such
assignment, be required to execute a counterpart to this Agreement agreeing to
be treated as the seller or transferor hereunder whereupon such purchaser or
transferee shall have the benefits of, and shall be subject to the restrictions
contained in, this Agreement.
14
SECTION 15. ENTIRE AGREEMENT. This Agreement contains the entire agreement
among the parties with respect to the subject matter hereof and all prior and
contemporaneous arrangements or understandings with respect to the subject
matter hereof.
SECTION 16. NOTICES. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
(i) if to the Corporation, to:
Cornell Corrections, Inc.
0000 Xxxx Xxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxx Xxxxx
Telecopier: 713/623-2853
(ii) if to the Investors, to their respective addresses set forth
on Schedule I hereto.
All such notices, requests, consents and other communications shall be deemed to
have been delivered (a) in the case of personal delivery or delivery by
telecopy, on the date of such delivery, (b) in the case of dispatch by
nationally-recognized overnight courier, on the next business day following such
dispatch and (c) in the case of mailing, on the third business day after the
posting thereof.
SECTION 17. MODIFICATIONS; AMENDMENTS; WAIVERS. The terms
and provisions of this Agreement may not be modified or amended,
nor may any provision be waived, except pursuant to a writing
signed by the Corporation and the Requisite Holders.
SECTION 18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
SECTION 19. HEADINGS. The headings of the various sections
of this Agreement have been inserted for convenience of reference
only and shall not be deemed to be a part of this Agreement.
15
SECTION 20. GOVERNING LAW. This Agreement shall be
governed by and construed in accordance with the laws of the
State of New York (without giving effect to principles of
conflicts of laws).
16
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
CORNELL CORRECTIONS, INC.
By: /s/ XXXX XXXXXXX
Name: Xxxx Xxxxxxx
Title: CFO
ING (U.S.) CAPITAL LLC
By: /s/ XXXXX XXXXXXXXXX
Name: Xxxxx Xxxxxxxxxx
Title:
17
SCHEDULE I
INVESTORS
Internationale Nederlanden (U.S.) Capital LLC
000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Merchant Banking Group New York
Xx. Xxxxx Xxxxxxxxxx
Xx. Xxxxx Xxxxxxxxxx
Telecopier: (000) 000-0000
18
SCHEDULE II
[List of Other Registration Rights]
Registration Rights Agreement dated as of March 31, 1994, as
amended, by and among Cornell Corrections, Inc. (formerly Xxxxxxx
Xxx, Inc.), the Investors (as defined therein), Xxxxx Xxxxxxx and
Internationale Nederlanden (U.S.) Capital Corporation.
19
