EXHIBIT 4
================================================================================
XXXXX/XXXXXX HOLDINGS, INC.
---------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
---------------------------------------------------
DATED AS OF JUNE 7, 1999
================================================================================
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of June 7, 1999 (this
"Agreement"), by and between XXXXX/XXXXXX HOLDING, INC., a Delaware corporation
(the "Company") and CONNING INSURANCE CAPITAL LIMITED PARTNERSHIP V, L.P., a
Delaware limited partnership ("Conning").
RECITALS
WHEREAS, concurrently with the execution and delivery of this Agreement
and pursuant to the Common Stock Purchase Agreement dated as of June 7, 1999 (as
amended from time to time, the "Purchase Agreement") by and between the Company
and Conning, Conning is purchasing 1,000,000 shares of the Company's Common
Stock; and
WHEREAS, it is a condition to the obligations of Conning under the
Purchase Agreement that this Agreement be executed by the parties hereto and the
parties hereto are willing to execute this Agreement and to be bound by the
provisions hereof.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1 Defined Terms.
The following capitalized terms, when used in this Agreement, have the
respective meanings set forth below:
"Commission" means the Securities and Exchange Commission.
"Common Stock" means (a) the common stock, par value $.01 per share of
the Company, (b) any other capital stock of any class or classes (however
designated) of the Company, authorized on or after the date hereof, the holders
of which shall have the right, without limitation as to amount, either to all or
to a share of the balance of current dividends and liquidating dividends after
the payment of dividends and distributions on any shares entitled to preference,
and the holders of which ordinarily, in the absence of contingencies or in the
absence of any provision to the contrary in the charter of the Company be
entitled to vote for the election of a majority of directors of the Company
(even though the right so to vote has been suspended by the happening of such a
contingency or provision) and (c) any other securities into which or for which
any of the securities described in (a) or (b) may be converted or exchanged
pursuant to a plan of recapitalization, reorganization, merger, sale of assets
or otherwise.
"Effective" means that all requirements under the Securities Act with
respect to a Registration Statement have been satisfied and that the Commission
has officially approved the public distribution or circulation of the
Registration Statement in connection with a public offering of Registrable
Securities.
"Effective Date" means the date on which a Registration Statement is
declared to be Effective.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder.
"NASD" means the National Association of Securities Dealers, Inc.
"NASDAQ" means the National Association of Securities Dealers Automated
Quotations System.
"Person" means an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
"Registrable Securities" means any shares of Common Stock held or
hereafter acquired by Conning; provided, however, that such securities shall
cease to be Registrable Securities if and when (i) a Registration Statement with
respect to the disposition of such securities shall have become Effective under
the Securities Act and such securities shall have been disposed of pursuant to
such Registration Statement, (ii) such securities shall have been otherwise
transferred, if new certificates or other evidences of ownership for such
securities not bearing a legend restricting further transfer and not subject to
any stop transfer order or other restrictions on transfer shall have been
delivered by the Company, and subsequent disposition of such securities shall
not require Registration or qualification of such securities under the
Securities Act or (iii) such securities shall have ceased to be outstanding.
"Registration" means the satisfaction by the Company of all applicable
requirements under the Securities Act as evidenced by the official approval of
the Commission in connection with a public offering by the Company of
Registrable Securities.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with its obligations under Article II of this
Agreement, including, without limitation, all Commission and stock exchange or
NASD registration and filing fees and expenses, fees and expenses of compliance
with applicable state securities or "blue sky" laws (including, without
limitation, reasonable fees and disbursements of counsel for the underwriters in
connection with "blue sky" qualifications of the Registrable Securities),
printing expenses, messenger and delivery expenses, the fees and expenses
incurred in connection with the listing of the securities to be registered in
connection with the listing of such securities to be registered on each
securities exchange or national market system on which such securities are
listed, fees and disbursements of counsel for the Company and all independent
certified public accountants (including the expenses of any annual audit and
"cold comfort" letters required by or incident to such performance and
compliance), the fees and disbursements of underwriters customarily paid by
issuers or sellers of securities (including the fees and expenses of any
"qualified independent underwriter" required by the NASD), the fees of one
counsel retained in connection with each such registration by Conning in an
amount not to exceed $25,000, the reasonable fees and expenses of any special
experts retained by the Company in connection with such registration, and fees
and expenses of other persons retained by the Company; provided, however, that
Registration Expenses shall not include any underwriting discounts or
commissions or transfer taxes, if any, attributable to the sale of Registrable
Securities by Conning or the fees of accountants, legal counsel to the extent
the amount of such fees exceed $25,000 or any other special experts retained in
connection with each such registration by Conning (collectively, the "Seller
Expenses").
2
"Registration Statement" means any disclosure document that the Company
is required to file under the Securities Act in connection with a public
offering of Registrable Securities.
"Securities Act" means the Securities Act of 1933, as amended from time
to time and the rules and regulations of the Commission thereunder.
ARTICLE II
REGISTRATION RIGHTS
Conning shall have the right to register its Registrable Securities in
accordance with the following provisions:
2.1 Demand Registrations.
(a) At any time after December 31, 2000, upon the written request of Conning
that the Company effect the Registration under the Securities Act (such a
written request being hereinafter referred to as a "Demand Registration") of
Registrable Securities, the Company will use its reasonable efforts to cause the
prompt Registration under the Securities Act, subject to the provisions of this
Article II, of all Registrable Securities Conning has requested the Company to
register, and in connection therewith, prepare and file on such appropriate form
as the Company, in its reasonable discretion, shall determine, a Registration
Statement under the Securities Act to effect such Registration. Conning may, at
any time prior to the Effective Date of the Registration Statement relating to
such Demand Registration, revoke such request by providing a written notice to
the Company revoking such request and agreeing to pay for the Registration
Expenses incurred by the Company with respect to such Registration Statement;
provided, however, that Conning shall not be obligated to pay for the
Registration Expenses incurred by the Company with respect to such Registration
Statement if Conning elects to use one of the Demand Registrations that it is
entitled to request under this Section 2.1.
With respect to any Registration Statement filed, or to be filed,
pursuant to this Section 2.1(a), if the Company shall furnish to Conning a
certified resolution of the Board of Directors of the Company stating that in
their good faith judgment it would (because of the existence of, or in
anticipation of, any acquisition, financing (debt or equity), merger, sale of
assets, recapitalization or other similar corporate activity, or the
unavailability for reasons beyond the Company's control of any required audited
financial statements, or any other event or condition of similar significance to
the Company) be materially disadvantageous (a "Disadvantageous Condition") to
the Company or its stockholders for such a Registration Statement to be
maintained Effective, or to be filed and become Effective, and setting forth the
general reasons for such judgment, the Company shall be entitled to cause such
Registration Statement to be withdrawn and the effectiveness of such
Registration Statement terminated, or, in the event no Registration Statement
has yet been filed, shall be entitled not to file any such Registration
Statement, until such Disadvantageous Condition no longer exists; provided,
however, that the Company may only declare one (1) Disadvantageous Condition per
fiscal year of the Company and any such Disadvantageous Condition may only
extend for a period of 60 days. Upon receipt of any such notice of a
Disadvantageous Condition, Conning will forthwith discontinue use of the
disclosure document contained in such Registration Statement and, if so directed
by the Company, Conning will deliver to the Company all copies, other than
permanent file copies then in Conning's possession, of the disclosure document
then covering such Registrable Securities current at the time of receipt of such
notice, and, in the event no Registration Statement has yet been filed, all
drafts of the disclosure document covering such Registrable Securities. In the
event that the Company shall give any notice of a Disadvantageous Condition, the
Company shall at such time as it in good xxxxx xxxxx appropriate file a new
Registration Statement covering the Registrable Securities that were covered by
such withdrawn Registration Statement, and such Registration Statement shall be
maintained Effective for such time as may be necessary so that the period of
effectiveness of such new Registration Statement, when aggregated with the
period during which such initial Registration Statement was Effective, shall be
such time as may be otherwise required by Section 2.1(c).
3
(b) Number of Registrations; Expenses. The Company shall not
be obligated to effect more than two (2) Demand Registrations pursuant to the
request of Conning under this Section 2.1 during the term of this Agreement.
Except as otherwise provided in Section 2.1(a), the Company shall pay all
Registration Expenses in connection with the Demand Registrations that Conning
is entitled to request pursuant to this Section 2.1 and Conning shall pay all
Seller Expenses relating to the registration, sale or disposition of Conning's
Registrable Securities pursuant to this Section 2.1. Notwithstanding any other
provisions contained in this Section 2.1, the Company shall not be required to
register any Registrable Securities pursuant to an Effective Registration
Statement in connection with a request for such Registration made in accordance
with this Section 2.1 if a previous Registration Statement pursuant to which
Registrable Securities were sold became Effective less than 180 days prior to
such request.
(c) Effective Registration Statement. A Demand Registration
requested pursuant to this Section 2.1 shall not be deemed to have been effected
unless the Registration Statement relating thereto (i) has become Effective
under the Securities Act and (ii) has remained Effective for a period of at
least 180 days (or such shorter period in which all Registrable Securities
included in such Registration have actually been sold thereunder); provided,
however, that if any Effective Registration Statement requested pursuant to this
Section 2.1 is discontinued in connection with a Disadvantageous Condition, such
Registration Statement shall not be included as one of the Registrations which
may be requested pursuant to this Section 2.1; provided further, that if after
any Registration Statement requested pursuant to this Section 2.1 becomes
Effective (x) such Registration Statement is subject to any stop order,
injunction or other order or requirement of the Commission or other governmental
agency or court due to the actions or omissions to act of the Company or (y)
less than 75% of all of the Registrable Securities requested to be included in
such Registration have been sold thereunder, such Registration Statement shall
not be included as one of the Registrations that Conning is entitled to request
pursuant to Section 2.1.
(d) Selection of Underwriters. If any requested Registration
pursuant to this Section 2.1 is in the form of an underwritten offering, the
Company shall have the right to select the investment banker and manager or
co-managers that will administer the offering.
4
(e) Priority in Demand Registrations. If a Demand Registration
pursuant to this Section 2.1 involves an underwritten offering and the managing
underwriter shall advise the Company that, in its view, the number of equity
securities requested to be included in such Registration exceeds the largest
number of securities which can be sold without having a significant adverse
effect on such offering, including the price at which such securities can be
sold, the Company will include in such Registration, first, Registrable
Securities proposed to be registered by Conning, second, the securities proposed
to be registered by the Company and third, all other securities that the Company
proposes to register thereunder (for the account of any other Person).
2.2 Incidental Registration.
(a) If the Company at any time proposes to register any of its
equity securities under the Securities Act (other than a registration effected
pursuant to Section 2.1) in a manner which would permit Registration of
Registrable Securities for sale to the public under the Securities Act, it shall
each such time, subject to the provisions of Section 2.2(b), give written notice
to Conning of its intention to do so and of Conning's rights under this Section
2.2, at least 30 days prior to the anticipated filing date of the Registration
Statement relating to such Registration. Such notice shall offer Conning the
opportunity to include in such Registration Statement such number of Registrable
Securities as Conning may request. Upon the written request of Conning made
within 20 days after the receipt of the Company's notice (which request shall
specify the number of Registrable Securities intended to be disposed of by
Conning and the intended method of disposition thereof), the Company will use
its reasonable efforts to effect the Registration under the Securities Act of
all Registrable Securities which the Company has been so requested to register
by Conning; provided, that (x) if such Registration involves an underwritten
offering, Conning must sell its Registrable Securities to the underwriters
selected by the Company on the same terms and conditions as apply to the
Company; and (y) if, at any time after giving written notice of its intention to
register any securities pursuant to this Section 2.2(a) and prior to the
Effective Date of the Registration Statement filed in connection with such
Registration, the Company shall determine for any reason not to register such
securities, the Company shall give written notice to Conning and shall thereupon
be relieved of its obligation to register any Registrable Securities in
connection with such Registration (without prejudice, however, to rights of
Conning under Section 2.1). If a Registration pursuant to this Section 2.2(a)
involves an underwritten public offering, Conning may elect, in writing prior to
the Effective Date of the Registration Statement filed in connection with such
Registration, not to register such Registrable Securities in connection with
such Registration. No Registration effected under this Section 2.2 shall relieve
the Company of its obligations to effect Registrations upon request under
Section 2.1. The Company shall pay all Registration Expenses in connection with
each Registration of Registrable Securities requested pursuant to this Section
2.2 and Conning shall pay all Seller Expenses relating to the registration, sale
or disposition of Conning's Registrable Securities pursuant to a Registration
Statement effected pursuant to this Section 2.2.
5
(b) Priority in Incidental Registrations. If a Registration
pursuant to this Section 2.2 involves an underwritten offering and the managing
underwriter advises the Company that, in its good faith view, the number of
equity securities (including all Registrable Securities) which the Company,
Conning and any other persons intend to include in such Registration exceeds the
largest number of securities which can be sold without having a significant
adverse effect on such offering (the "Maximum Includable Securities"), including
the price at which such Registrable Securities can be sold, the Company will
include in such Registration (i) first, securities that the Company proposes to
issue and sell for its own account, (ii) second, securities to be registered by
holders exercising demand registration rights with respect to such Registration
granted to such holders in connection with the consummation of an acquisition or
financing transaction (debt or equity) consummated by the Company and (iii)
third, the number of Registrable Securities and other securities that may be
included in the Registration, if any, shall be allocated among the Conning and
the holders of other securities (collectively, the "Other Holders") requesting
inclusion on a pro rata basis, with the number of each type or class of
securities of each of Conning and the Other Holders thereof included in the
Registration to be that number determined by multiplying (A) the total number of
such type or class of security included in the Maximum Includable Securities
less the number of such type or class of security to be registered for the
account of the Company, by (B) a fraction, the numerator of which will be the
total number of such type or class of security owned by Conning or such Other
Holder, as applicable, for which such Person has requested inclusion in the
Registration, and the denominator of which will be the total number of such type
or class of security owned by Conning and the Other Holders for which they have
requested inclusion in the Registration.
2.3 Holdback Agreements.
(a) If any Registration of Registrable Securities shall be in
connection with an underwritten public offering, Conning agrees not to effect
any sale or distribution of Registrable Securities, including any private
placement or any sale pursuant to Rule 144 or any successor provision under the
Securities Act, of any Registrable Securities, and not to effect any such sale
or distribution of any other equity security of the Company or of any security
convertible into or exchangeable or exercisable for any equity security of the
Company (in each case, other than as part of such underwritten public offering)
during the seven days prior to, and during the period of time requested by the
Company and the managing underwriter (not to exceed 180 days) which begins on
the Effective Date of such Registration Statement (except as part of such
Registration) provided that Conning has received written notice of such
Registration at least two business days prior to the anticipated beginning of
the seven day period referred to above.
(b) If any Registration of Registrable Securities shall be in
connection with an underwritten public offering, the Company agrees (i) not to
effect any sale or distribution of any of its equity securities or of any
security convertible into or exchangeable or exercisable for any equity security
of the Company (other than any such sale or distribution of such securities in
connection with any merger or consolidation by the Company or the acquisition by
the Company of the capital stock or substantially all the assets of any other
Person or in connection with an employee stock ownership or other benefit plan)
during the seven days prior to, and during the period of time requested by the
managing underwriter (not to exceed 180 days) which begins on, the Effective
Date of such Registration Statement (except as part of such Registration) and
(ii) that any agreement entered into after the date hereof pursuant to which the
Company issues or agrees to issue any privately placed equity securities shall
contain a provision under which the holders of such securities agree not to
effect any sale or distribution of any such securities during the period
referred to in the foregoing clause (i), including any sale pursuant to Rule 144
under the Securities Act (except as part of such Registration, if permitted).
6
2.4 Registration Procedures. In connection with any offering of
Registrable Securities registered pursuant to this Article II, the Company
shall:
(a) Prepare and file with the Commission within 90 days after
receipt of a request for Registration, a Registration Statement on any form for
which the Company then qualifies or which counsel for the Company shall deem
appropriate, and which form shall be available for the sale of the Registrable
Securities in accordance with the intended methods of distribution thereof, and
use its reasonable efforts to cause such Registration Statement to become and
remain Effective as provided herein, provided that before filing with the
Commission a Registration Statement or disclosure document constituting part of
a Registration Statement or any amendments or supplements thereto, the Company
will (x) furnish to Conning and to counsel selected by Conning copies of all
such documents proposed to be filed for said counsel's review and comment and
(y) notify Conning of any stop order issued or threatened by the Commission and
take all reasonable actions required to prevent the entry of such stop order or
to remove it if entered.
(b) Prepare and file with the Commission such amendments and
supplements to such Registration Statement and any disclosure document
constituting part of such Registration Statement used in connection therewith as
may be necessary to keep Effective such Registration Statement for a period of
not less than 180 days or such shorter period which will terminate when all
Registrable Securities covered by such Registration Statement have been sold
(but not before the expiration of the 90 day period, if applicable, referred to
in Section 4(3) of the Securities Act and Rule 174, or any successor thereto, if
applicable), and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by such Registration Statement
during such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Registration Statement.
(c) Furnish to Conning and each underwriter, if any, of
Registrable Securities covered by such Registration Statement such reasonable
number of copies of such Registration Statement, each amendment and supplement
thereto (in each case including all exhibits thereto), and the disclosure
document included in such Registration Statement (including each preliminary
disclosure document), in conformity with the requirements of the Securities Act,
and such other documents as Conning may reasonably request in order to
facilitate the disposition of the Registrable Securities.
(d) Use its reasonable efforts to register or qualify such
Registrable Securities under such other state securities or "blue sky" laws of
such jurisdictions as Conning and any underwriter, if any, of Registrable
Securities covered by such Registration Statement reasonably requests and do any
and all other acts and things which may be reasonably necessary or advisable to
enable Conning and each underwriter, if any, to consummate the disposition in
such jurisdictions of the Registrable Securities held by Conning; provided that
the Company will not be required to (x) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 2.4(d), (y) subject itself to taxation in any such jurisdiction or (z)
consent to general service of process in any such jurisdiction.
7
(e) Use its reasonable efforts to cause the Registrable
Securities covered by such Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Company to enable Conning to
consummate the disposition of such Registrable Securities.
(f) Immediately notify Conning at any time when a disclosure
document relating thereto is required to be delivered under the Securities Act
of the happening of any event which comes to the Company's attention if as a
result of such event the disclosure document included in such Registration
Statement contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company will promptly prepare and furnish to
Conning a supplement or amendment to such disclosure document so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
disclosure document will not contain an 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 not misleading.
(g) Use its reasonable efforts to cause all such Registrable
Securities to be listed on a national securities exchange (including NASDAQ) and
on each securities exchange on which similar securities issued by the Company
may then be listed, and enter into such customary agreements including a listing
application and indemnification agreement in customary form, and to provide a
transfer agent and registrar for such Registrable Securities covered by such
Registration Statement no later than the Effective Date of such Registration
Statement.
(h) Enter into such customary agreements (including an
underwriting agreement in customary form) and take all such other actions as
Conning or the underwriters retained by Conning, if any, reasonably request in
order to expedite or facilitate the disposition of such Registrable Securities,
including customary representations, warranties, indemnities and agreements.
(i) Make available, after the execution and delivery of a
confidentiality agreement in customary form, for inspection by Conning, any
underwriter participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by Conning or
such underwriter (collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of the Company, if any, as
shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's and its affiliates' officers, directors
and employees to supply all information and respond to all inquiries reasonably
requested by any such Inspector in connection with such Registration Statement.
(j) Use its reasonable efforts to obtain a "cold comfort"
letter from the Company's independent public accountants in customary form and
covering such matters of the type customarily covered by "cold comfort" letters
as Conning reasonably requests.
(k) Otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available to
Conning, as soon as reasonably practicable, an earnings statement covering a
period of at least twelve months, beginning with the first month after the
Effective Date of the Registration Statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
8
It shall be a condition precedent to the obligation of the Company to
take any action with respect to securities of Conning that Conning shall furnish
to the Company such information regarding the securities held by Conning and the
intended method of disposition thereof as the Company shall reasonably request
and as shall be required in connection with the action taken by the Company.
Conning agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 2.4(f), Conning will
immediately discontinue disposition of Registrable Securities until Conning's
receipt of the copies of the supplemented or amended disclosure document
contemplated by Section 2.4(f) hereof, and, if so directed by the Company,
Conning will deliver to the Company (at the Company's expense) all copies
(including, without limitation, any and all drafts), other than permanent file
copies, then in Conning's possession, of the disclosure document covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, the period mentioned in Section
2.4(b) shall be extended by the greater of (x) three months or (y) the number of
days during the period from and including the date of the giving of such notice
pursuant to Section 2.4(f) hereof to and including the date when Conning shall
have received the copies of the supplemented or amended disclosure document
contemplated by Section 2.4 hereof.
2.5 Indemnification.
(a) Indemnification by the Company. In the event of any
Registration of any securities of the Company under the Securities Act pursuant
to this Agreement, the Company will indemnify and hold harmless, to the full
extent permitted by law, Conning, its directors and officers, general partners,
limited partners and managing directors, each other person who participates as
an underwriter in the offering or sale of such securities and each other person,
if any, who controls, is controlled by or is under common control with Conning
or any such underwriter within the meaning of the Securities Act (and directors,
officers, controlling persons, partners and managing directors of any of the
foregoing), against any and all losses, claims, damages or liabilities, joint or
several, and expenses (including any amounts paid in any settlement effected
with the Company's consent, which consent will not be unreasonably withheld) to
which Conning, any such director or officer or general or limited partner or
managing director or any such underwriter or controlling person may become
subject under the Securities Act, state securities or "blue sky" laws, common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) or expenses arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained, on the Effective Date thereof, in any Registration Statement under
which such securities were registered under the Securities Act, any preliminary,
final or summary disclosure document contained therein, or any amendment or
supplement thereto, (ii) any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company of any federal, state or common law rule or regulation applicable to the
Company and relating to action required of or inaction by the Company in
connection with any such Registration, and the Company shall reimburse Conning
and each such director, officer, general partner, limited partner, managing
director or underwriter and controlling person for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending such loss, claim, liability, action or proceeding; provided, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or expense
9
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in such Registration Statement or amendment
or supplement thereto or in any such preliminary, final or summary disclosure
document in reliance upon and in conformity with written information furnished
to the Company through an instrument duly executed by Conning in its capacity as
a holder of Registrable Securities in the Company or any such director, officer,
general or limited partner, managing director or underwriter specifically
stating that it is for use in the preparation thereof; and, provided further,
that the Company shall not be liable to Conning, any person who participates as
an underwriter in the offering or sale of Registrable Securities, if any, or any
other person, if any, who controls Conning or such underwriter within the
meaning of the Securities Act, pursuant to this Section 2.5(a) with respect to
any preliminary disclosure document or the final disclosure document or the
final disclosure document as amended or supplemented as the case may be, to the
extent that any such loss, claim, damage or liability of Conning, such
underwriter or such controlling person results from the fact that Conning or
such underwriter sold Registrable Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the final disclosure document or of the final disclosure document as then
amended or supplemented, whichever is most recent, if the Company has previously
furnished copies thereof to Conning or such underwriter and such final
disclosure document, as then amended or supplemented, had corrected any such
misstatement or omission. The indemnity provided for herein shall remain in full
force and effect regardless of any investigation made by or on behalf of Conning
or any such director, officer, general partner, limited partner, managing
director, underwriter or controlling person and shall survive the transfer of
such securities by such Conning.
(b) Indemnification by Conning and Underwriters. The Company
may require, as a condition to including any Registrable Securities in any
Registration Statement filed in accordance with the provisions hereof, that the
Company shall have received an undertaking reasonably satisfactory to it from
Conning or any underwriter, to indemnify and hold harmless (in the same manner
and to the same extent as set forth in paragraph (a) above) the Company and its
directors, officers, controlling persons and all other prospective sellers and
their respective directors, officers, general and limited partners, managing
directors, and their respective controlling persons with respect to any
statement or alleged statement in or omission or alleged omission from such
Registration Statement, any preliminary, final or summary disclosure document
contained therein, or any amendment or supplement, if such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company or its
representatives through an instrument duly executed by or on behalf of Conning
or underwriter specifically stating that it is for use in the preparation of
such Registration Statement, preliminary, final or summary disclosure document
or amendment or supplement, or a document incorporated by reference into any of
the foregoing. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of the Company or Conning, any
underwriter or any of their respective directors, officers, general or limited
partners, managing directors or controlling persons and shall survive the
transfer of such securities by Conning; provided, however, that Conning shall
not be liable in the aggregate for any amounts exceeding the product of the sale
price per Registrable Security and the number of Registrable Securities being
sold pursuant to such Registration Statement or disclosure document by Conning.
10
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any action
or proceeding with respect to which a claim for indemnification may be made
pursuant to this Section 2.5, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, promptly give written
notice to the indemnifying party of the commencement of such action, provided
that the failure of any indemnified party to give notice as provided herein
shall not relieve the indemnifying party of its obligations under the preceding
subsections of this Section 2.5, except to the extent that the indemnifying
party is actually materially prejudiced by such failure to give notice. In case
any such action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, the
indemnifying party will be entitled to participate in and, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, 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 will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties arises in
respect of such claim after the assumption of the defense thereof, and the
indemnifying party will not be subject to any liability for any settlement made
without its consent (which consent shall not be unreasonably withheld). No
indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation. An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel in any single
jurisdiction for all parties indemnified by such indemnifying party with respect
to such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels as may be reasonably necessary. Notwithstanding
anything to the contrary set forth herein, and without limiting any of the
rights set forth above, in any event any party will have the right to retain, at
its own expense, counsel with respect to the defense of a claim.
(d) Other Indemnification. Indemnification similar to that
specified in the preceding subsections of this Section 2.5 (with appropriate
modifications) shall be given by the Company and Conning with respect to any
required Registration or other qualification of securities under any federal or
state law or regulation or governmental authority other than the Securities Act.
11
(e) Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section 2.5 is for any reason held to be unenforceable although applicable
in accordance with its terms, the Company, Conning and the underwriters shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement incurred by the Company,
Conning and the underwriters, in such proportions that the underwriters are
responsible for that portion represented by the percentage that the underwriting
discount appearing in the disclosure document bears to the public offering price
appearing therein and Conning are responsible for the balance; provided,
however, that 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. As between the Company and Conning, such parties shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement in such proportion as shall
be appropriate to reflect (x) the relative benefits received by the Company, on
the one hand, and Conning, from the offering of the Registrable Securities and
any other securities included in such offering, and (y) the relative fault of
the Company, on the one hand, and Conning on the other hand, with respect to the
statements or omissions which resulted in such loss, liability, claim, damage or
expense, or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and Conning on the other hand, with respect to such offering shall be deemed to
be in the same proportion as the sum of the total purchase price paid to the
Company in respect of the Registrable Securities plus the total net proceeds
from the offering of any securities included in such offering (before deducting
expenses) received by Conning bears to the amount by which the total net
proceeds from the offering of Registrable Securities (before deducting expenses)
received by Conning with respect to such offering exceeds the purchase price
paid to the Company in respect of the Registrable Securities, and in each case
the net proceeds received from such offering shall be determined as set forth in
the disclosure document. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or Conning, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and Conning agree that it would
not be just and equitable if contribution pursuant to this Section 2.5 were to
be determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein.
Notwithstanding anything to the contrary contained herein, the Company and
Conning agree that any contribution required to be made by Conning pursuant to
this Section 2.5(e) shall not exceed the net proceeds from the offering of
Registrable Securities (before deducting expenses) received by Conning with
respect to such offering. For purposes of this Section 2.5, each Person, if any,
who controls Conning or an underwriter within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as Conning or such
underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act shall have the
same rights to contribution as the Company.
2.6 Rule 144. The Company agrees that it will file in a timely manner
all reports required to be filed by it pursuant to the Exchange Act, and, if at
any time the Company is not required to file such reports, it will make
available to the public, to the extent required to permit the sale of Common
Stock by Conning pursuant to Rule 144, current information about itself and its
activities as contemplated by Rule 144 under the Securities Act, as such Rule
may be amended from time to time. Notwithstanding the foregoing, the Company may
deregister any class of its equity securities under Section 12 of the Exchange
Act or suspend its duty to file reports with respect to any class of its
securities pursuant to Section 15(d) of the Exchange Act if it is then permitted
to do so pursuant to the Exchange Act and the rules and regulations thereunder.
12
2.7 Underwriting Agreements. Conning may not participate in any
underwritten Registration hereunder unless Conning (i) agrees to sell its
Registrable Securities on the basis provided in any underwriting agreement
reasonably approved by both the Company and Conning and (ii) accurately
completes in a timely manner and executes all questionnaires, powers of
attorney, custody agreements (including delivery of Registrable Securities
pursuant thereto), underwriting agreements and other documents provided to
Conning which are customarily required under the terms of such underwriting
agreements.
ARTICLE III
MISCELLANEOUS
3.1 No Waiver; Cumulative Remedies. No failure or delay on the part of
any party to this Agreement in exercising any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy thereunder. The remedies
therein provided are cumulative and not exclusive of any remedies provided by
law.
3.2 Amendments, Waivers and Consents. Any provision in this Agreement
to the contrary notwithstanding, and except as hereinafter provided, changes in,
termination or amendments of or additions to this Agreement may be made, and
compliance with any provision set forth herein may be omitted or waived, if the
Company shall obtain consent thereto in writing from Conning. Any waiver or
consent may be given subject to satisfaction of conditions stated therein and
any waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
3.3 Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally against written receipt or by facsimile transmission or mailed by
prepaid first class mail, return receipt requested, or mailed by overnight
courier prepaid to the parties at the following addresses or facsimile numbers:
To the Company: Xxxxx/Xxxxxx Holdings, Inc.
0000 Xxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile Number: 000-000-0000
With a copy to: Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx, P.C.
Facsimile Number: 214-969-4343
To Conning: Conning Insurance Capital Limited Partnership V, L.P.
c/o Conning & Company
CityPlace II
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile Number: 000-000-0000
13
With a copy to: LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
Xxxxxxx Square
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxxx, Esq.
Facsimile Number: 000-000-0000
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 3.3 be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section 3.3 be deemed given upon successful transmission, (iii)
if delivered by mail in the manner described above to the address as provided in
this Section 3.3 be deemed given upon the earlier of the third business day
following mailing or upon receipt and (iv) if delivered by overnight courier to
the address as provided in this Section 3.3, be deemed given on the earlier of
the first business day following the date sent by such overnight courier or upon
receipt. Any party from time to time may change its address, facsimile number or
other information for the purpose of notices to that party by giving notice
specifying such change to the other parties hereto.
3.4 Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of each of the Company and Conning and their respective
heirs, successors and assigns.
3.5 Severability. The provisions of this Agreement are severable and,
in the event that any court of competent jurisdiction shall determine that any
one or more of the provisions or part of a provision contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision or part of a provision of this Agreement; but this Agreement
shall be reformed and construed as if such invalid or illegal or unenforceable
provision, or part of a provision, had never been contained herein, and such
provisions or part reformed so that it would be valid, legal and enforceable to
the maximum extent possible.
3.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT
TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE
OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE.
3.7 Headings. The headings used in this Agreement have been inserted
for convenience of reference only and do not define or limit the provisions
hereof.
3.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
3.9 Further Assurances. Each party hereto shall cooperate and shall
take such further action and shall execute and deliver such further documents as
may be reasonably requested by any other party in order to carry out the
provisions and purposes of this Agreement.
14
3.10 Specific Enforcement. Conning and the Company acknowledge and
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state thereof having
jurisdiction, this being in addition to any other remedy to which they may be
entitled at law or equity.
[The remainder of this page is blank; next page is the
signature page.]
15
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
XXXXX/XXXXXX HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: President and Chief Executive Officer
CONNING INSURANCE CAPITAL LIMITED PARTNERSHIP V, L.P.
By: Conning Investment Partners V, LLC, its
General Partner
By: Conning & Company, its Manager Member
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
