REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT ("Rights
Agreement") is made and entered into as of the 15th day of
November, 1995, by and among INTERMET CORPORATION, a Georgia
corporation ("Parent"), ALEXANDER CITY CASTING COMPANY, INC., an
Alabama corporation and a wholly-owned subsidiary of Parent
("Purchaser"), and XXXXXXXX FOUNDRY, INC., an Alabama corporation
("Holder").
WHEREAS, on the date hereof Purchaser is acquiring certain
assets of Holder pursuant to an Agreement For Purchase And Sale
Of Certain Assets of Xxxxxxxx Foundry, Inc. of even date herewith
(the "Asset Agreement") among Holder, Parent, Purchaser, and the
other signatories thereto, and in connection therewith Holder
will receive duly and validly authorized and issued, fully paid,
non-assessable, unregistered shares of Parent's $0.10 par value
per share common stock;
WHEREAS, in order to induce Holder to consummate the closing
contemplated under the Asset Agreement, Parent and Purchaser have
agreed to grant to Holder the registration rights set forth in
Section 3 hereof and the Put Option (as defined in Section 8(a)
hereof); and
WHEREAS, in order to induce Parent and Purchaser to
consummate the closing contemplated under the Asset Agreement,
Holder has agreed to the Lock-up (as defined in Section 2(a)
hereof);
NOW, THEREFORE, the parties hereto, in consideration of the
foregoing, the mutual covenants and agreements hereinafter set
forth, and other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, hereby agree as
follows:
1. Definitions.
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As used in this Rights Agreement, the following capitalized
defined terms shall have the following meanings:
"At The Market Offering" shall mean an offering of
securities into an existing trading market for outstanding shares
of the same class at other than a fixed price on or through the
facilities of a national securities exchange or to or through a
market maker otherwise than on an exchange.
"Common Shares" shall mean common shares, par value $0.10
per share, in the Parent.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Person" for purposes of the Rights Agreement shall mean an
individual, partnership, corporation, trust, estate, or
unincorporated organization, or a government or agency or
political subdivision thereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and
any such prospectus as amended or supplemented by any prospectus
supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf
Registration Statement, and by all other amendments and
supplements to such prospectus, including post-effective
amendments, and in each case including all material incorporated
by reference therein.
"Put Option" shall have the meaning set forth in Section
8(a) hereof.
"Registrable Securities" shall mean the Shares, excluding
(i) shares for which a Registration Statement relating to the
sale thereof shall have become effective under the Securities Act
and which have been disposed of under such Registration Statement
or (ii) shares sold or eligible for sale, within a six month
period, pursuant to Rule 144 under the Securities Act.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance with this Rights
Agreement, including, without limitation: (i) all SEC, stock
exchange or NASD registration and filing fees; (ii) all
reasonable fees and expenses incurred in connection with
compliance with state securities or "blue sky" laws (including
reasonable fees and disbursements of counsel in connection with
"blue sky" qualification of any of the Registrable Securities and
the preparation of a blue sky memorandum) and compliance with the
rules of the NASD; (iii) all reasonable expenses of any Persons
(other than Parent's employees) in preparing or assisting in
preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, certificates and other
documents relating to the performance of and compliance with this
Rights Agreement; (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable
Securities on any securities exchange or exchanges pursuant to
Section 4(k) hereof; and (v) the reasonable fees and
disbursements of counsel for Parent and of the independent public
accountants of Parent, including the expenses of any special
audits or "cold comfort" letters required by or incident to such
performance and compliance. Registration Expenses shall
specifically exclude underwriting discounts and commissions, the
fees and disbursements of counsel representing a selling Holder,
and transfer taxes, if any, relating to the sale or disposition
of Registrable Securities by a selling Holder, all of which shall
be borne by such Holder in all cases.
"Registration Statement" or "Shelf Registration Statement"
shall mean a "shelf" registration statement of Parent and any
other Person required to be a registrant with respect to such
shelf registration statement pursuant to the requirements of the
Securities Act which covers the issuance or resale of the
Registrable Securities on Form S-3 or an appropriate form under
Rule 415 under the Securities Act, or any similar rule that may
be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in
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each case including the Prospectus contained therein, all
exhibits thereto and all materials incorporated by reference
therein.
"Rule 13e-3 Transaction" shall mean a "Rule 13e-3
transaction" as that term is defined in Rule 13e-3(a)(3) under
the Exchange Act.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Shares" shall mean any Common Shares issued or to be issued
to the Holders or any of them pursuant to the provisions of the
Asset Agreement.
"Transaction Statement" shall mean a Schedule 13E-3
Transaction Statement provided for in Rule 13e-3 under the
Exchange Act or a Schedule 13E-4 Transaction Statement provided
for in Rule 13e-4 under the Exchange Act.
"Trigger Date" shall mean July 15, 1996; provided however,
that if Parent exercises its right to delay the filing of a
Registration Statement under Section 3(e) hereof with respect to
a Registration Notice given prior to such date, then the Trigger
Date shall be automatically extended by that number of days equal
to the number of days that elapse between (i) the date on which
Parent gives notice of the filing delay to the Holders in
accordance with the last sentence of Section 3(e) and (ii) the
date on which the delayed Registration Statement is filed with
the SEC.
2. Lock-up Agreement.
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(a) Each Holder hereby agrees that, except as set forth in
Section 2(b) below, for 120 days following the date hereof (the
"Lock-up Period"), such Holder will not, without the prior
written consent of Parent, offer, pledge, sell, contract to sell,
grant any options for the sale of or otherwise dispose of,
directly or indirectly (collectively, "dispose of"), any Shares
(the "Lock-up").
(b) The following transfers of Shares shall not be subject
to the Lock-up set forth in Section 2(a):
(i) a Holder may dispose of Shares to his or her
spouse, siblings, parents or any natural or adopted children
or other descendants or to any personal trust in which such
family members or such Holder retain the entire beneficial
interest;
(ii) a Holder may dispose of Shares on his or her death
to such Holder's estate, executor, administrator or personal
representative or to such Holder's beneficiaries pursuant to
a devise or bequest or by the laws of descent and
distribution;
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(iii) a Holder may dispose of Shares as a gift;
(iv) a Holder may dispose of Shares pursuant to a
pledge, grant of security interest or other encumbrance
effected in a bona fide transaction with an unrelated and
unaffiliated pledgee;
(v) a Holder may dispose of Shares pursuant to any
acquisition agreement relating to a sale of a majority of
Common Shares that has been approved by the Parent's board
of directors; and
(vi) Holder may distribute Shares to its shareholders.
In the event that any Holder disposes of Shares as permitted by
this Section 2(b), such Shares shall remain subject to this
Rights Agreement and, as a condition of the validity of such
disposition, the transferee shall be required to execute and
deliver a counterpart of this Rights Agreement (except that a
pledgee shall not be required to execute and deliver a
counterpart of this agreement until it forecloses upon such
Shares). Thereafter, such transferee shall be deemed to be a
Holder for purposes of this Rights Agreement.
3. Shelf Registration Under the Securities Act.
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(a) Filing of Shelf Registration Statement. Beginning
after the expiration of the Lock-up Period, each Holder shall be
entitled to offer for sale pursuant to a Registration Statement
any Registrable Securities held by such Holder, subject to the
terms and conditions hereof. To commence the registration
process, one or more Holders shall provide to Parent a written
notice (a "Registration Notice") that such Holder(s) propose to
make a registered offer of a specified number of Registrable
Securities (which number shall not be less than 100,000). Such
Registration Notice shall identify the intended method of
disposition of such Registrable Securities. Upon receipt by
Parent of a Registration Notice, Parent shall promptly give
written notice of the proposed registered offer described in the
Registration Notice to all other Holders of Registrable
Securities (the "Parent Notice"); provided, however, that no
Parent Notice need be given if the Registration Notice covers all
Registrable Securities. The Parent Notice shall instruct such
other Holders to provide to Parent written notice (a "Tagalong
Notice"), within fifteen (15) days of Parent giving the Parent
Notice, in the event such other Holders elect to participate in
such registration. Such Tagalong Notice shall provide a
specified number of Registrable Securities and identify the
intended method of disposition of such Registrable Securities,
which shall be reasonably consistent with the method of
disposition identified in the Registration Notice. Subject to
the provisions of Section 3(e), promptly following Parent's
receipt of a Registration Notice, or, if applicable, Parent's
timely receipt of corresponding Tagalong Notices, Parent shall
cause to be filed (or amended if already filed) a Shelf
Registration Statement providing for the sale of the Registrable
Securities specified in such Registration Notice by the Holder(s)
thereof and, if applicable, the Registrable Securities specified
in such Tagalong Notices by the Holder(s) thereof in accordance
with the terms hereof, and will use its reasonable efforts to
cause such Shelf Registration Statement to be declared effective
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by the SEC as soon as practicable. Parent agrees to use its
reasonable efforts to keep the Shelf Registration Statement
continuously effective for a period expiring on the date on which
all of the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement or have become eligible for sale, within a
six month period, pursuant to Rule 144 under the Securities Act
and, subject to Sections 4(b) and 4(i), further agrees to
supplement or amend the Shelf Registration Statement, if and as
required by the rules, regulations or instructions applicable to
the registration form used by Parent for such Shelf Registration
Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registration.
(b) Expenses. Except as otherwise provided in this Rights
Agreement, Parent shall pay all Registration Expenses up to an
aggregate of $25,000 in connection with any and all registrations
of Registrable Securities pursuant to this Rights Agreement.
Each Holder shall pay all other expenses, including underwriting
discounts, if any, sales commissions, the fees and disbursements
of counsel representing such Holder, and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable
Securities pursuant to the Shelf Registration Statement or Rule
144 under the Securities Act. Parent will absorb all internal
costs and expenses of Parent for the work of its employees in
connection with preparing, assisting in preparing, reviewing or
undertaking any other work in connection with the first
Registration Statement or Shelf Registration Statement prepared
pursuant to this Rights Agreement, and any and all amendments to
such first Registration Statement or Shelf Registration
Statement. Any Holder or Holders who deliver to Parent a
Registration Notice after the expiration of Parent's obligation
to keep effective the first Registration Statement or Shelf
Registration Statement, as set forth in Section 3(a) hereof,
shall reimburse Parent for all reasonable internal direct costs
and expenses of Parent for the work of its employees in
connection with preparing or assisting in preparing, reviewing or
otherwise undertaking work in connection with such second
Registration Statement or Shelf Registration Statement and any
amendments thereto. Such costs and expenses shall be paid by the
Holders requesting such registration within 30 days after receipt
by such Holders of a detailed, itemized invoice from Parent.
Such Holder or Holders shall pay such internal direct costs and
expenses to Parent whether or not Parent's $25,000 cap on the
payment of Registration Expenses has been met at the time of such
subsequent registration and amendments thereto.
(c) Inclusion in Shelf Registration Statement. Any Holder
who does not timely provide the information reasonably requested
by Parent in connection with the Shelf Registration Statement
shall not be entitled to have its Registrable Securities included
in the Shelf Registration Statement.
(d) [Intentionally omitted]
(e) Registration Delay. If, within 20 days of receipt by
Parent of a Registration Notice, Parent determines in good faith
that such registration might reasonably be expected to have a
material adverse effect on any proposal or plan by Parent
(directly or by any of its subsidiaries) to engage in any
acquisition or disposition of assets or stock, or any merger,
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business combination, tender offer or similar transaction (other
than in the ordinary course of business), or if in the written
opinion of counsel to Parent (a copy of which will be provided to
the Holder(s) submitting the Registration Notice), any
registration statement filed by Parent to comply with the
Registration Notice would require the inclusion therein of
audited financial statements other than those of Parent for its
three most recently ended fiscal years, then Parent may, at its
option, delay the filing of the registration statement under this
Section 3 until no more than 90 days from the date of the
Registration Notice or, if Parent is required to issue Parent
Notices under Section 3(a), until no more than 110 days from the
date of the Registration Notice; provided, however, that if the
intended method of disposition described in the Registration
Notice is an At The Market Offering, then Parent may delay the
filing of the registration statement until no more than 60 days
from the date of the Registration Notice or, if Parent is
required to issue Parent Notices under Section 3(a), until no
more than 80 days from the date of the Registration Notice. If
Parent chooses to delay the filing of a registration statement as
permitted by this Section 3(e), Parent shall promptly provide
written notice of the delay to each Holder submitting the
Registration Notice or, if applicable, a corresponding Tagalong
Notice.
(f) Other Securities in Registration Statement. Parent
shall be entitled to include in any Registration Statement, for
sale in a manner consistent with the method of disposition
identified in a Registration Notice and, if applicable, the
corresponding Tagalong Notices, securities to be sold by Parent
or for the account of Parent (a "Parent Piggyback") or to be sold
for the account of any other Person who may then be holding
registration rights with respect to securities of Parent (a
"Stockholder Piggyback"). In the event of a Parent Piggyback
with or without a Stockholder Piggyback, Parent shall pay all
Registration Expenses associated with the Registration Statement,
without regard to the $25,000 limitation set forth in Section
3(b), and no Holder shall have any obligation to reimburse any
internal direct costs and expenses of Parent's employees,
notwithstanding the last two sentences of Section 3(b). In the
event of a Stockholder Piggyback without a Parent Piggyback, the
Registration Expenses shall be borne, after payment by Parent of
$25,000 of Registration Expenses associated with Registrable
Securities in accordance with Section 3(b), among the Holder(s)
selling Registrable Securities and the other Person(s) with
registration rights pro rata according to the dollar value of
securities being sold; provided, however, that a Stockholder
Piggyback shall not cause Holder(s) to be obligated to reimburse
Parent for Registration Expenses or other costs and expenses in
excess of those reimbursements that would have been owed by
Holder(s) to Parent in the absence of the Stockholder Piggyback.
(g) Limitation on Number of Registration Statements.
Parent shall be obligated to effect a registration, subject to
the terms and conditions of this Rights Agreement, of Registrable
Securities on not more than two occasions. A registration shall
not be deemed to have been effected for the purpose of the
preceding sentence (i) until a Registration Statement with
respect to such registration has been declared effective by the
SEC, (ii) if, after a Registration Statement has become
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effective, such Registration Statement is interfered with by any
stop order, injunction or other order or requirement of the SEC
or federal, state or other governmental agency or court for any
reason, or (iii) if, after a Registration Statement has become
effective, Parent breaches its covenant set forth in the last
sentence of Section 3(a) to use its reasonable efforts to keep
the Registration Statement continuously effective for the period
specified in such sentence.
4. Registration Procedures. In connection with the obligations
-----------------------
of Parent with respect to the Registration Statement pursuant to
Section 3 hereof, Parent shall, to the extent applicable:
(a) prepare and file with the SEC, within the time period
set forth in Section 3 hereof, a Shelf Registration Statement,
which Shelf Registration Statement (i) shall allow for the sale
of Registrable Securities in accordance with the intended method
or methods of distribution by the selling Holders thereof, and
(ii) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith;
(b) subject to the terms hereof, (i) prepare and file with
the SEC such amendments and post-effective amendments to each
such Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period; (ii)
cause each such Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 or any similar rule that may be adopted
under the Securities Act; (iii) respond as promptly as
practicable to any comments received from the SEC with respect to
the Shelf Registration Statement, or any amendment, post-
effective amendment or supplement relating thereto; and (iv)
comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by each Registration
Statement during the applicable period in accordance with the
intended method or methods of distribution by the selling Holders
thereof. Notwithstanding anything to the contrary contained
herein, Parent shall not be required to take any of the actions
described in subsections (i), (ii) or (iii) above with respect to
each particular Holder of Registrable Securities unless and until
Parent has received a Registration Notice (or Tagalong Notice)
from a Holder that such Holder intends to make offers or sales
under the Registration Statement as specified in the Registration
Notice; provided, however, that Parent shall have 20 days to
prepare and file any such amendment or supplement after receipt
of the Registration Notice or, if applicable, any timely Tagalong
Notice. Once a Holder has delivered a Registration Notice (or
Tagalong Notice) to Parent, such Holder shall promptly provide to
Parent such information as Parent reasonably requests in order to
identify such Holder and the method of disposition in a post-
effective amendment to the Registration Statement or a supplement
to the Prospectus. Such Holder also shall notify Parent in
writing upon completion of such offer or sale or at such time as
such Holder no longer intends to make offers or sales under the
Registration Statement;
(c) furnish to each Holder of Registrable Securities that
has delivered a Registration Notice (or Tagalong Notice) to
Parent, without charge, as many copies of each Prospectus,
including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder may
reasonably request, in order to facilitate the public sale or
other disposition of the Registrable Securities; Parent consents
to the use of the Prospectus, including each preliminary
Prospectus, by each such Holder of Registrable Securities in
connection with the offering and sale of the Registrable
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Securities covered by the Prospectus or the preliminary
Prospectus;
(d) use its reasonable efforts to register or qualify the
Registrable Securities by the time the applicable Registration
Statement is declared effective by the SEC under all applicable
state securities or "blue sky" laws of ten (10) jurisdictions as
any Holder of Registrable Securities covered by a Registration
Statement shall reasonably request in writing, keep each such
registration or qualification effective during the period such
Registration Statement is required to be kept effective or during
the period offers or sales are being made by a Holder that has
delivered a Registration Notice (or Tagalong Notice) to Parent,
whichever is shorter, and do any and all other acts and things
which may be reasonably necessary or advisable to enable such
Holder to consummate the disposition in each such jurisdiction of
such Registrable Securities owned by such Holder; provided,
however, that Parent shall not be required to (i) qualify
generally to do business in any jurisdiction or to register as a
broker or dealer in such jurisdiction where it would not
otherwise be required to qualify but for this Section 4(d), (ii)
subject itself to taxation in any such jurisdiction, or (iii)
submit to the general service of process in any such
jurisdiction;
(e) use its best efforts to notify each Holder of
Registrable Securities that has delivered a Registration Notice
to Parent promptly and, if requested by such Holder, confirm such
advice in writing (i) when a Registration Statement has become
effective and when any post-effective amendments and supplements
thereto become effective, (ii) of the issuance by the SEC or any
state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iii) if Parent receives any
notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, and (iv) of the
happening of any event during the period a Registration Statement
is effective as a result of which such Registration Statement or
the related Prospectus contains any 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, in
light of the circumstances under which they were made (in the
case of the Prospectus), not misleading;
(f) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration
Statement at the earliest possible moment;
(g) furnish to each Holder of Registrable Securities that
has delivered a Registration Notice (or Tagalong Notice) to
Parent, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) cooperate with each selling Holder of Registrable
Securities and Parent's transfer agent to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and, if appropriate, not bearing any
Securities Act legend; and enable certificates for such
Registrable Securities to be issued, with appropriate legends, if
any, for such numbers of Shares and registered in such names as
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the selling Holders may reasonably request at least two business
days prior to any sale of Registrable Securities;
(i) subject to the terms hereof, upon the occurrence of any
event of the kind described in Section 4(e)(iv) hereof, use its
reasonable efforts promptly to prepare and file a supplement or
prepare, file and obtain effectiveness of a post-effective
amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will
not contain any 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 the light of the circumstances
under which they were made, not misleading;
(j) at least two (2) days prior to the filing of any
Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a
Prospectus, provide copies of such document (not including any
documents incorporated by reference therein unless requested) to
the Holders of Registrable Securities that have provided a
Registration Notice (or Tagalong Notice) to Parent;
(k) use its reasonable efforts to cause all Registrable
Securities to be listed on any securities exchange on which
similar securities issued by Parent are then listed; and
(l) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the SEC and make available to
its security holders, as soon as reasonably practicable, an
earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder.
Parent may require each Holder of Registrable Securities to
furnish to Parent in writing such information regarding the
proposed distribution by such Holder of such Registrable
Securities as Parent may from time to time reasonably request in
writing.
In connection with and as a condition to Parent's
obligations with respect to the Registration Statement pursuant
to Section 3 hereof and this Section 4, each Holder agrees that
(A) such Holder will not offer or sell its or his Registrable
Securities under the Registration Statement until Holder has
provided a Registration Notice or Tagalong Notice pursuant to
Section 4(b) hereof and has received copies of the supplemental
or amended Prospectus contemplated by Section 4(b) hereof and
receives notice that any post-effective amendment has become
effective, and (B) upon receipt of any notice from Parent of the
happening of any event of the kind described in Section 4(e)(iv)
hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until
such Holder receives copies of the supplemental or amended
Prospectus contemplated by Section 4(i) hereof and receives
notice that any post-effective amendment has become effective,
and, if so directed by Parent, such Holder will deliver to Parent
(at the expense of Parent) all copies in its possession, other
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than permanent file copies then in such Holder's possession, of
the Prospectus covering such Registrable Securities current at
the time of receipt of such notice.
5. Indemnification: Contribution.
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(a) Indemnification by Parent. Parent agrees to indemnify
and hold harmless each Holder and any officers and directors or
trustees of each Holder and each Person, if any, who controls any
Holder within the meaning of Section 15 of the Securities Act as
follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement (or any
amendment thereto) pursuant to which Registrable Securities
were registered under the Securities Act, including all
documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact
contained in any Prospectus (or any amendment or supplement
thereto), including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such
settlement is effected with the written consent of Parent;
and
(iii) against any and all expense whatsoever, as
incurred (including reasonable fees and disbursements of
counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or
threatened, in each case whether or not a party, or any
claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i) or
(ii) above;
PROVIDED, HOWEVER, that the indemnity provided pursuant to this
Section 5(a) does not apply to any Holder with respect to any
loss, liability, claim, damage or expense to the extent arising
out of or based upon (x) any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to Parent by or on
behalf of such Holder expressly for use in a Registration
Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto) or (y) such Holder's failure to
deliver a final prospectus or an amended or supplemental
Prospectus (if required to be delivered by applicable law) if
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such loss, liability, claim, damage or expense would not have
arisen had such delivery occurred. Such indemnity shall remain
in full force and effect regardless of any investigation made by
or on behalf of Holders or their affiliates and shall survive the
transfer of the shares by Holders.
(b) Indemnification by Holders. Each Holder severally
agrees to indemnify and hold harmless Parent and the other
selling Holders, and each of their respective directors and
officers (including each director and officer of Parent who
signed the Registration Statement), and each Person, if any, who
controls Parent or any other selling Holder within the meaning of
Section 15 of the Securities Act, to the same extent as the
indemnity contained in Section 5(a) hereof (except that any
settlement described in Section 5(a)(ii) shall be effected with
the written consent of such Holder), but only insofar as such
loss, liability, claim, damage or expense arises out of or is
based upon any untrue statement or omission, or alleged untrue
statements or omissions, made in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to Parent by such selling Holder
expressly for use in such Registration Statement (or any
amendment thereto) or such Prospectus (or any amendment or
supplement thereto). Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf
of Parent or its affiliates and shall survive the transfer of the
shares by Holders.
(c) Conduct of Indemnification Proceedings. Each
indemnified party shall give reasonably prompt notice to each
indemnifying party of any action or proceeding commenced against
it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party (i) shall not relieve
it from any liability which it may have under the indemnity
agreement provided in Sections 5(a) or 5(b) hereof, unless and to
the extent it did not otherwise learn of such action and the lack
of notice by the indemnified party results in the forfeiture by
the indemnifying party of substantial rights and defenses and
(ii) shall not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the
indemnification obligation provided under Sections 5(a) or 5(b)
hereof. If the indemnifying party so elects within a reasonable
time after receipt of such notice, the indemnifying party may
assume the defense of such action or proceeding at such
indemnifying party's own expense with counsel chosen by the
indemnifying party and approved by the indemnified parties
defendant in such action or proceeding, which approval shall not
be unreasonably withheld; provided, however, that, if such
indemnified party or parties reasonably determine that a conflict
of interest exists where it is advisable for such indemnified
party or parties to be represented by separate counsel or that,
upon advice of counsel, there may be legal defenses available to
them which are different from or in addition to those available
to the indemnifying party, then the indemnifying party shall not
be entitled to assume such defense and the indemnified party or
parties shall be entitled to one separate counsel at the
indemnifying party's or parties' expense. If an indemnifying
party is not entitled to assume the defense of such action or
proceeding as a result of the proviso to the preceding sentence,
such indemnifying party's counsel shall be entitled to conduct
such indemnifying party's defense and counsel for the indemnified
party or parties shall be entitled to conduct the defense of such
indemnified party or parties, it being understood that both such
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counsel will cooperate with each other to conduct the defense of
such action or proceeding as efficiently as possible. If an
indemnifying party is not so entitled to assume the defense of
such action or does not assume such defense, after having
received the notice referred to in the first sentence of this
paragraph, the indemnifying party or parties will pay the
reasonable fees and expenses of counsel for the indemnified party
or parties. In such event, however, no indemnifying party will
be liable for any settlement effected without the written consent
of such indemnifying party. If an indemnifying party is entitled
to assume, and assumes, the defense of such action or proceeding
in accordance with this Section 5(c), such indemnifying party
shall not be liable for any fees and expense of counsel for the
indemnified parties incurred thereafter in connection with such
action or proceeding.
(d) Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity
agreement provided for in this Section 5 is for any reason
judicially held to be unenforceable although applicable in
accordance with its terms, Parent and the selling Holders shall
contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity
agreement incurred by Parent and the selling Holders, in such
proportion as is appropriate to reflect the relative fault of and
benefits to Parent on the one hand and the selling Holders on the
other (in such proportions that the selling Holders are
severally, not jointly, responsible for the balance), in
connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative
benefits to the indemnifying party and indemnified parties shall
be determined by reference to, among other things, the total
proceeds received by the indemnified party and indemnified
parties in connection with the offering to which such losses,
claims, damages, liabilities, or expenses relate. The relative
fault of the indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether the
action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or the
indemnified parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
action.
The parties hereto agree that it would not be just or
equitable if contribution pursuant to this Section 5(d) were
determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d),
no selling Holder shall be required to contribute any amount in
excess of the amount by which the total price at which the
Registrable Securities of such selling Holder were offered to the
public exceeds the amount of any damages which such selling
Holder would otherwise have been required to pay by reason of
such untrue statement or omission.
Notwithstanding the foregoing, 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.
For purposes of this Section 5(d), each Person, if any, who
controls a Holder within the meaning of Section 15 of the
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Securities Act and directors and officers of a Holder shall have
the same rights to contribution as such Holder, and each director
of Parent, each officer of Parent who signed the Registration
Statement and each Person, if any, who controls Parent within the
meaning of Section 15 of the Securities Act shall have the same
rights to contribution as Parent.
6. Form S-3.
--------
(a) Parent represents and warrants to Holders that, as of
the date hereof, Parent satisfies all of the "Registrant
Requirements" (as defined in the registration statement on Form
S-3) for Parent's use of the registration statement on Form S-3.
As of the date hereof, Parent has no reason to believe that it
will not satisfy such Form S-3 "Registrant Requirements"
continuously during the two years following the date hereof.
(b) Parent covenants that it will timely file the reports
required to be filed by Parent under the Exchange Act so that
Parent will remain eligible to use the registration statement on
Form S-3 for the Registrable Securities during the two years
following the date hereof.
7. Rule 144 Sales.
--------------
(a) Parent covenants that it will file the reports required
to be filed by Parent under the Exchange Act so as to enable any
Holder to sell Shares pursuant to Rule 144 under the Securities
Act for a period of three years from the date of this Agreement,
unless Parent engages in a Rule 13e-3 Transaction prior to such
date.
(b) In connection with any sale, transfer or other
disposition by any Holder of any Shares pursuant to Section 4(1)
of the Securities Act or Rule 144 thereunder, Parent shall
cooperate with such Holder to facilitate the timely preparation
and delivery by Parent's transfer agent of certificates
representing Shares to be sold and, if appropriate, not bearing
any Securities Act legend, and to enable certificates for such
Shares to be issued for such number of shares and registered in
such names as the selling Holders may reasonably request at least
two business days prior to any sale of Shares.
8. Put Option.
----------
(a) If Parent participates or engages in a Rule 13e-3
Transaction on or before the Trigger Date, and, in connection
therewith distributes a Transaction Statement to its
stockholders, and any Registrable Shares have not been subject to
an effective Registration Statement prior to the date such
Transaction Statement is distributed to Parent's stockholders
("Unregistered Shares"), the Holders of Unregistered Shares shall
have the option (the "Put Option") to require Parent to purchase
the Unregistered Shares at the "Put Price" (as defined below),
subject to the terms of this Section 8. To exercise the Put
Option, a Holder of Unregistered Shares shall give written notice
to Parent within 45 days of the Holder's receipt of the
Transaction Statement, that such Holder exercises its Put Option
(the "Exercise Notice"). The Exercise Notice shall state the
number of Unregistered Shares held by the Holder. A Holder of
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Unregistered Shares may exercise the Put Option only as to all of
such Holder's Unregistered Shares. The "Put Price" shall mean
the product of (x) $3,600,000 and (y) a fraction, the numerator
of which is the number of Unregistered Shares to be purchased by
Parent from the particular Holder, and the denominator of which
is ___________________________.
(b) Upon receipt of an Exercise Notice, Parent shall notify
such selling Holder of a specified time and date within 45 days
thereafter upon which the closing of Parent's purchase of the
Unregistered Shares shall take place. At the closing, the
selling Holder shall deliver to Parent stock certificates
evidencing the Unregistered Shares to be sold to Parent, duly
endorsed for transfer or accompanied by a duly executed
instrument of transfer, free and clear of all liens, encumbrances
and security interests and with full warranties of title. Upon
such delivery, Parent shall pay the applicable Put Price to the
selling Holder for the Unregistered Shares so delivered. The Put
Price shall be paid by Parent at closing in immediately available
funds and lawful funds of the United States ("Cash"); provided,
however, that Parent may pay to a selling Holder as much as 60%
of the Put Price by the issuance of Parent's promissory note
secured by collateral satisfactory to the selling Holder (a
"Secured Note") in a principal amount equal to the difference
between the Put Price and the Cash paid to the selling Holder.
(c) Each Secured Note issued by Parent shall be payable in
three consecutive annual installments, each to be made on the
anniversary date of the Note if such date is a business day,
otherwise on the first business day next following such date,
beginning one year after the date of the Note, and each in the
amount of one-third of the original principal amount of the Note
together with accrued interest at the prime rate (as published in
The Wall Street Journal) plus 1%.
9. Miscellaneous.
-------------
(a) Amendments and Waivers. The provisions of this Rights
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 without
the written consent of Parent and the Holders of a majority in
amount of the outstanding Registrable Securities; provided,
however, that no amendment, modification or supplement or waiver
or consent to the departure with respect to the provisions of
Sections 2, 5, 7 or 8 hereof shall be effective as against any
Holder of Registrable Securities unless consented to in writing
by such Holder of Registrable Securities. Notice of any
amendment, modification or supplement to this Rights Agreement
adopted in accordance with this Section 9(a) shall be provided by
Parent to each Holder of Registrable Securities at the earliest
possible date.
(b) Notices. All notices and other communications provided
for or permitted hereunder shall be made in the manner provided
in Section 8.1 of the Asset Agreement.
(c) Successors and Assigns. This Rights Agreement shall
inure to the benefit of and be binding upon the successors,
assigns and transferees of each of the parties, including,
without limitation and without the need for an express
assignment, subsequent Holders. If any successor, assignee or
14
transferee of any Holder shall acquire Registrable Securities in
any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms
of this Rights Agreement, and by taking and holding such
Registrable Securities such Person shall be entitled to receive
the benefits hereof and shall be conclusively deemed to have
agreed to be bound by all of the terms and provisions hereof.
(d) Counterparts. This Rights 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.
(e) Headings. The headings in this Rights Agreement are
for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(f) Governing Law. This Rights Agreement shall be governed
by and construed in accordance with the laws of the State of
Alabama without giving effect to the conflicts of law provisions
thereof.
(g) Specific Performance. The parties hereto acknowledge
that there would be no adequate remedy at law if any party fails
to perform any of its obligations hereunder, and accordingly
agree that each party, in addition to any other remedy to which
it may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations of any other party
under this Rights Agreement in accordance with the terms and
conditions of this Rights Agreement in any court of the United
States or any State thereof having jurisdiction.
(h) Entire Agreement. This Rights Agreement is intended by
the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein. This Rights Agreement supersedes all
prior agreements and understandings between the parties with
respect to such subject matter.
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IN WITNESS WHEREOF, the parties hereto have caused their
duly authorized representatives to execute this Rights Agreement
as of the date first above written.
PARENT:
INTERMET CORPORATION
By: /s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, Chairman and CEO
PURCHASER:
ALEXANDER CITY CASTING COMPANY, INC.
By: /s/ C. Xxxxx Xxxxxxxx
C. Xxxxx Xxxxxxxx, President
HOLDER:
XXXXXXXX FOUNDRY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
Xxxxxx X. Xxxxxxxx, Xx., President
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