REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as of
October 10, 1996 by and among Golden State Acquisition Corp., a Delaware
corporation (the "Company"), and the parties listed on the signature pages
hereto, (collectively, the "Holders").
R E C I T A L S:
A. Pursuant to the terms and subject to the conditions of that certain
Stock Purchase Agreement dated of even date herewith (the "Stock Purchase
Agreement") by and among the Company, SBIC Partners, L.P. ("SBIC Partners") and
Xxxxxxx X. X'Xxxxx, the execution and delivery of this Agreement is a condition
to the purchase and sale by the Holders of shares of the Company's Class B
Common Stock, $.01 par value per share (the "Class B Stock"), pursuant to the
terms of the Stock Purchase Agreement.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"Closing Date" shall mean October 10, 1996.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Form S-3" shall mean such form under the Securities Act as in effect
on the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
"Prospectus" shall mean the prospectus included in any Registration
Statement, 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 the Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such Prospectus.
"Register", "registered" and "registration" shall mean and refer to a
registration effected by preparing and filing a Registration Statement and
taking all other actions that are necessary or appropriate in connection
therewith, and the declaration or ordering of effectiveness of such Registration
Statement by the SEC.
"Registration Expenses" shall have the meaning set forth in Section 7.
"Registrable Securities" shall mean Class B Stock and any securities
issued or issuable with respect to the Class B Stock by way of a stock dividend,
stock split, combination of shares, recapitalization, restructuring, merger,
consolidation or other reorganization of the Company, provided that such term
shall not include any such shares of Class B Stock sold to the public by a
Holder pursuant to a Registration Statement or to Rule 144 under the Securities
Act or sold by a Holder in a private transaction in which such Holder's rights
hereunder were not assigned.
"Registration Statement" shall mean any registration statement of the
Company in compliance with the Securities Act that covers Registrable Securities
pursuant to the provisions of this Agreement, including, without limitation, the
Prospectus, all amendments and supplements to such Registration Statement,
including all post-effective amendments, all exhibits and all material
incorporated by reference in such Registration Statement.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"SEC" shall mean the Securities and Exchange Commission.
"Stockholders Agreement" shall mean that certain Stockholders
Agreement dated of even date herewith by and among the Company and the parties
listed on the signature pages thereto, as amended, modified or restated from
time to time.
"Underwritten registration" or "underwritten offering" shall mean a
registration in which securities of the Company are sold to an underwriter or
through an underwriter as agent for reoffering to the public.
2. REQUEST FOR REGISTRATION. (a) Subject to the rights set forth in
Section 2(e) below, at any time after the earlier of two (2) years from the
Closing Date or six months after completion of an initial public offering of the
Company's securities, any Holder shall have the right to make a written request
for registration under the Securities Act of at least 15% of the Registrable
Securities (a "Demand Registration"). Upon receipt of a Demand Registration,
the Company shall, within ten (10) days, give written notice of such request to
each other Holder and shall, subject to the limitations of Section 2(b), file as
soon as practicable, and in any event within ninety (90) days of the receipt of
such Demand Registration, a Registration Statement covering all
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Registrable Securities that such Holders request to be included in such
Registration Statement, by written notice to the Company, to be registered
within thirty (30) days of the mailing of such notice by the Company, and shall
use its reasonable best efforts to cause such Registration Statement to become
effective as promptly as practicable after the filing thereof. The Holders
shall be entitled to two (2) Demand Registrations hereunder.
(b) If any Holder intends to distribute the Registrable Securities
covered by its Demand Registration by means of an underwriting, it shall so
advise the Company as a part of its request and the Company shall include such
information in the written notice delivered to each other Holder referred to in
Section 2(a). In such event, the right of any Holder to include such Holder's
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
enter into an underwriting agreement in customary form with the underwriter or
underwriters, which underwriter or underwriters shall be chosen by SBIC
Partners. Notwithstanding any other provision of this Section 2, if the
underwriter advises SBIC Partners in writing that marketing factors require a
limitation of the number of shares to be underwritten, then SBIC Partners shall
so advise all Holders of Registrable Securities which would otherwise be
underwritten pursuant hereto, and the number of shares of Registrable Securities
that may be included in the underwriting shall be allocated, among all Holders
thereof in proportion (as nearly as practicable) to the amount of Registrable
Securities requested to be included in the registration by each Holder, provided
that such shares of Registrable Securities to be included in such underwriting
shall not be reduced unless all of the securities of the Company and of all
other selling stockholders that are not Registrable Securities are first
entirely excluded from such underwriting.
(c) A Demand Registration requested pursuant to this Section 2 shall
not be deemed to have been effected if:
(i) the requesting Holder withdraws its Demand Registration
in its entirety at any time prior to such effectiveness or
(ii) the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such
registration are not satisfied.
(d) Notwithstanding the foregoing, if the Company shall furnish to
the requesting Holder a certificate signed by the President or Chief Executive
Officer of the Company stating that, in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company and
its stockholders for a Registration Statement to be filed and it is therefore
essential to defer the filing of such Registration Statement, the Company shall
have the right to defer such filing for a period of not more than an additional
sixty (60) days after
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receipt of the Demand Registration, provided that the Company may not utilize
this right more than once in any twelve (12) month period.
(e) Notwithstanding anything contained in this Section 2 to the
contrary, any time after the Closing Date, on the written request of SBIC
Partners the Company shall, in consultation with SBIC Partners, engage a
reputable, nationally-recognized underwriter reasonably acceptable to the Board
of Directors of the Company and, with the advice and assistance of such
underwriter, the Company shall commence the preparation of a Registration
Statement with respect to shares of the Company's common stock and shall take
all such other actions and do such other things as may be necessary and
appropriate to register such shares with the SEC and to have such Registration
Statement declared effective as soon as possible thereafter. With respect to
such Registration Statement, SBIC Partners shall be permitted to include for
registration that number of shares of Common Stock that equal up to twenty
percent (20%) of the aggregate number of shares of the capital stock of the
Company held by SBIC Partners and its affiliates. Such registration of shares
shall not count as a Demand Registration for purposes of Section 2(a).
3. COMPANY REGISTRATION. If the Company shall determine to register any
shares of its capital stock of the same series and class as any of the
Registrable Securities (or securities convertible into or exchangeable or
exercisable for shares of such series and class) for its own account or for the
account of any stockholder (other than a registration effected pursuant to the
terms and provisions of Section 2 hereof and a registration relating either to
the sale of securities to employees of the Company pursuant to the Company's
1996 Stock Option Plan), the Holders shall be entitled to include Registrable
Securities in such registration (and related underwritten offering, if any) on
the following terms and conditions:
(a) The Company shall promptly give written notice of such
determination to each Holder and each such Holder shall have the right to
request, by written notice given to the Company within thirty (30) days of the
receipt by such Holder of such notice, that a specific number of Registrable
Securities held by such Holder be included in such Registration Statement;
(b) If the Registration Statement relates to an underwritten
offering, the notice called for by Section 3(a) shall specify the name of the
managing underwriter for such offering and the number of securities to be
registered for the account of the Company and for the account of any of the
other stockholders of the Company;
(c) If the Registration Statement relates to an underwritten
offering, each Holder to be included therein must (i)sell such person's
Registrable Securities on the same basis provided in the underwriting
arrangements approved by the Company and (ii) complete and execute all
questionnaires, powers of attorney, indemnities, hold-back agreements,
underwriting agreements and other documents required under the terms of such
underwriting arrangements or by the SEC;
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(d) If the managing underwriter for the underwritten offering under
the Registration Statement to be filed by the Company determines that inclusion
of all or any portion of the Registrable Securities in such offering would
adversely affect the ability of the underwriter for such offering to sell all of
the securities requested to be included for sale in such offering, the number of
shares that may be included in such registration in such offering shall be
allocated as follows: (i) first, the Company shall be permitted to include all
shares of capital stock to be registered thereby;(ii) second, the Holders, on a
pro rata basis based on the total number of shares of capital stock held
thereby, shall be allowed to include such amount of the Registrable Securities
as the managing underwriter deems appropriate, but in no instance shall such
Registrable Securities be reduced to less than twenty-five percent (25%) of the
aggregate number of shares registered pursuant to such Registration Statement;
and (iii) third, to any other selling stockholder exercising piggyback
registration rights in such amounts as may be deemed appropriate by such
managing underwriter.
(e) Except as otherwise set forth in Section 2(e), nothing contained
in this Section 3 shall require that the Company register any Registrable
Securities in an initial public offering;
(f) Holders shall have the right to withdraw their Registrable
Securities from the Registration Statement at any time prior to the effective
date thereof, but if the same relates to an underwritten offering, they may only
do so during the time period and on terms deemed appropriate by the underwriters
for such underwritten offering; and
(g) The Company shall have the right to terminate or withdraw any
registration initiated by it under this Section 3 prior to the effective date of
such registration, whether or not any Holder has elected to include such
securities in such registration.
4. FORM S-3 REGISTRATION.
(a) Each Holder shall, from time to time, subject to the provisions
of this Section 4, be entitled to request that the Company effect a registration
of all or such portion of Holder's Registrable Securities on Form S-3 as shall
be specified in such request.
(b) If the Company shall receive from any Holder a written request to
effect a registration on Form S-3, if the Company is then permitted to use such
form under the Securities Act and applicable rules and regulations of the SEC,
the Company will promptly give written notice of the proposed registration to
each other Holder.
(c) As soon as practicable after receipt of any written request
pursuant to Section 4(a), the Company shall effect such registration as would
permit or facilitate the sale and distribution of all or such portion of the
requesting Holder's Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of each other
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Holder joining in such request as are specified in a written request given to
the Company within thirty (30) days after receipt of such written notice from
the Company, provided that the Company shall not be obligated to effect any such
registration pursuant to this Section 4 (i) if the requesting Holder, together
with each other Holder of Registrable Securities, propose to sell Registrable
Securities at an aggregate price to the public of less than $500,000 or (ii) if
the Company shall furnish to the Holders a certificate signed by the President
or Chief Executive Officer stating that in the good faith judgment of the Board
of Directors, it would be seriously detrimental to the Company and its
stockholders for such Form S-3 Registration to be effected at such time, in
which event the Company shall have the right to defer the filing of the Form S-3
Registration Statement for a period of not more than sixty (60) days after
receipt of the request described in Section 4(a).
(d) Subject to Section 4(b), the Company shall file a Form S-3
Registration Statement covering the Registrable Securities as soon as
practicable after receipt of the request by the requesting Holder.
(e) At all times after the Company shall have become subject to the
reporting requirements of the Exchange Act, the Company shall use its best
efforts to make registrations on Form S-3 available for the sale of Registrable
Securities.
5. RESTRICTIONS ON PUBLIC SALE BY HOLDERS OF REGISTRABLE SECURITIES.
Each Holder whose Registrable Securities are included (in whole or in part) in a
Registration Statement filed by the Company under Sections 2 or 3 for sale in an
underwritten offering agrees, if requested by the managing underwriter of such
offering, not to sell, make any short sale of, loan, grant any option for the
purchase of, dispose of or effect any public sale or distribution of securities
of the same series and class as (or securities exchangeable or exercisable for
or convertible into securities of the same series and class as) the Registrable
Securities included in the Registration Statement, including a sale pursuant to
Rule 144 under the Securities Act (except as part of such underwritten
registration), during the ten (10) day period prior to, and during the
ninety (90) day period (or shorter period requested by the underwriter)
beginning on the closing date of such underwritten offering, to the extent
timely notified in writing by the Company or the managing underwriter.
6. REGISTRATION PROCEDURES. In connection with the Company's
registration obligations pursuant to Sections 2, 3 or 4 hereof, the Company will
use its best efforts to effect such registration to permit the sale of the
Registrable Securities covered thereby in accordance with the intended method or
methods of disposition thereof, and pursuant thereto the Company will as
expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities and use its best efforts to cause such
Registration Statement to become effective, and, upon the request of any Holder,
keep such registration statement effective
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for up to ninety (90) days, provided that, before filing any Registration
Statement or Prospectus or any amendments or supplements thereto, the Company
will furnish to the Holders of the Registrable Securities covered by such
Registration Statement, their counsel, and the underwriters, if any, and their
counsel, copies of all such documents proposed to be filed at least ten (10)
days prior thereto, and, with respect to any Registration Statement prepared to
be filed by the Company, the Company will not file any such Registration
Statement or amendment thereto or any Prospectus or any supplement thereto to
which any such Holder shall object within such ten (10) day period, provided,
further, that the Company will not name or otherwise provide any information
with respect to any Holder in any Registration Statement or Prospectus without
the consent of such Holder, unless required to do so by the Securities Act and
the rules and regulations thereunder;
(b) prepare and file with the SEC such amendments, post-effective
amendments and supplements to the Registration Statement and the Prospectus as
may be necessary to comply with the provisions of the Securities Act and the
rules and regulations thereunder with respect to the disposition of all
securities covered by such Registration Statement;
(c) promptly notify the selling Holders (i) when the Prospectus or
any Prospectus supplement or post-effective amendment has been filed, and, with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective,(ii) of any request by the SEC for amendments or
supplements to the Registration Statement or the Prospectus or for additional
information,(iii) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose, (iv)if at any time the representations and warranties of the
Company contemplated by Section 6(k) cease to be true and correct,(v) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose and (vi)of the
happening of any event which makes any statement made in the Registration
Statement, the Prospectus or any document incorporated therein by reference
untrue or which requires the making of any changes in the Registration
Statement, the Prospectus or any document incorporated therein by reference in
order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(e) if requested by a selling Holder, immediately incorporate in a
Prospectus supplement or post-effective amendment such information as a majority
of the Holders agree should be included therein relating to the sale of the
Registrable Securities, including, without limitation, information with respect
to the number of Registrable Securities being sold, the purchase price being
paid therefor and any other terms of the distribution of the Registrable
Securities to be sold in such offering; and make all required filings of such
Prospectus supplement
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or post-effective amendment as promptly as practicable after being notified of
the matters to be incorporated in such Prospectus supplement or post-effective
amendment;
(f) furnish to each selling Holder, without charge, at least one
signed copy of the Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those incorporated
by reference);
(g) deliver to each selling Holder, without charge, such reasonable
number of conformed copies of the Registration Statement (and any post-effective
amendment thereto) and such number of copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto (and any
documents incorporated by reference therein) as such Holder may reasonably
request, all in full conformity with the Securities Act; the Company consents to
the use of the Prospectus or any amendment or supplement thereto by each of the
selling Holders in connection with the offer and sale of the Registrable
Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any offering of Registrable Securities covered by a
Registration Statement, register or qualify or cooperate with the selling
Holders in connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any such selling Holder reasonably requests, and use its best
efforts to keep each such registration or qualification effective, including
through new filings, or amendments or renewals, during the period such
Registration Statement is required to be kept effective pursuant to the terms of
this Agreement; and do any and all other acts or things necessary or advisable
to enable the disposition in all such jurisdictions reasonably requested by the
Holders of the Registrable Securities covered by such Registration Statement,
provided that under no circumstances shall the Company be required in connection
therewith or as a condition thereof to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions;
(i) cooperate with the selling Holders and the managing underwriter
or underwriters to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold, free of any and all
restrictive legends, such certificates to be in such denominations and
registered in such names as the managing underwriter or underwriters, if any, or
such Holders may request;
(j) upon the occurrence of any event contemplated by
Section 6(c)(vi) above, prepare a supplement or post-effective amendment to the
Registration Statement or the 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, the Prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
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(k) (i) make such representations and warranties to the selling
Holders as are customarily made by issuers to underwriters in primary
underwritten offerings; (ii) obtain opinions of counsel to the Company and
updates thereof, addressed to each selling Holder and covering such matters as
are customarily the subject of opinions of issuer's counsel provided to
underwriters in underwritten public offerings; (iii) obtain "cold comfort"
letters and updates thereof from the Company's independent certified public
accountants addressed to the selling Holders, such letters to be in customary
form and covering matters of the type customarily requested in "cold comfort"
letters by underwriters in connection with underwritten public offerings; and
(iv) deliver such documents and certificates as may be requested by the
Requisite Holders to evidence compliance with clause (i) above and with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company with the selling Holders (the above shall be done at
each closing under such underwriting or similar agreement or as and to the
extent required thereunder);
(l) make generally available to the Holders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act, no later than
sixty (60) days after the end of any twelve (12) month period (or ninety (90)
days, if such period is a fiscal year)(i) commencing at the end of any fiscal
quarter in which Registrable Securities are sold to underwriters in a firm or
best efforts underwritten offering, or, if not sold to underwriters in such an
offering,(ii) beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration Statement, which
statements shall cover said twelve (12) month period;
(m) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by each Registration Statement from and
after a date not later than the effective date of such Registration Statement;
(n) use its best efforts to cause all Registrable Securities covered
by each Registration Statement to be listed, subject to notice of issuance,
prior to the date of the first sale of such Registrable Securities pursuant to
such Registration Statement, on each securities exchange on which the Common
Stock issued by the Company is then listed, and admitted to trading on the
Nasdaq Stock Market, if the Common Stock is then admitted to trading on the
Nasdaq Stock Market; and
(o) enter into such agreements (including underwriting agreements in
customary form containing, among other things, reasonable and customary
indemnities) and take such other actions as a majority of the Holders shall
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities.
Each Holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 6(c)(vi) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities under
the Prospectus related to the applicable Registration Statement until such
Holder's receipt of the copies of the supplemented or amended
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Prospectus contemplated by Section 6(j) hereof, or until it is advised in
writing by the Company that the use of the Prospectus may be resumed. It shall
be a condition precedent to the obligations of the Company to take any action
pursuant to this Section 6 with respect to the Registrable Securities of any
selling Holder that such Holder shall furnish to the Company such information
regarding itself and the Registrable Securities held by it as shall be required
by the Securities Act to effect the registration of such Holder's Registrable
Securities.
7. REGISTRATION EXPENSES. All expenses incident to any registration to
be effected hereunder and incident to the Company's performance of or compliance
with this Agreement, including without limitation all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, National Association of Securities
Dealers, Inc., stock exchange and qualification fees, fees and disbursements of
the Company's counsel and of independent certified public accountants of the
Company (including the expenses of any special audit required by or incident to
such performance), the fees of counsel representing the Holders in such
offering, expenses of the underwriters that are customarily requested in similar
circumstances by such underwriters (excluding discounts, commissions or fees of
underwriters, selling brokers, dealer managers or similar securities industry
professionals relating to the distribution of the Registrable Securities), all
such expenses being herein called "Registration Expenses," will be borne by the
Company. The Company will also pay its internal expenses, the expense of any
annual audit and the fees and expenses of any person retained by the Company.
8. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify
and hold harmless each Holder of Registrable Securities, its officers,
directors, partners and employees and each person who controls such Holder
(within the meaning of Section 15 of the Securities Act) from and against any
and all losses, claims, damages and liabilities (including any investigation,
legal or other expenses reasonably incurred in connection with, and any amount
paid in settlement of, any action, suit or proceeding or any claim asserted) to
which such Holder may become subject under the Securities Act, the Exchange Act
or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities arise out of
or are based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or preliminary
prospectus or any amendment or supplement thereto, (ii)the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any violation
or alleged violation by the Company of the Securities Act, the Exchange Act or
any state securities or blue sky laws in connection with the Registration
Statement, Prospectus or preliminary prospectus or any amendment or supplement
thereto, provided that the Company will not be liable to any Holder to the
extent that such loss, claim, damage or liability arises from or is based upon
any untrue statement or omission based upon written information furnished to the
Company by such Holder.
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(b) INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES. Each Holder
of Registrable Securities whose Registrable Securities are sold under a
Prospectus which is a part of a Registration Statement agrees to indemnify and
hold harmless the Company, its directors and each officer who signed such
Registration Statement and each person who controls the Company (within the
meaning of Section 15 of the Securities Act), and each other Holder of
Registrable Securities whose Registrable Securities are sold under the
Prospectus which is a part of such Registration Statement (and such holder's
officers, directors and employees and each person who controls such holder
within the meaning of Section 15 of the Securities Act), under the same
circumstances as the foregoing indemnity from the Company to each Holder of
Registrable Securities to the extent that such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement of a
material fact or omission of a material fact that was made in the Prospectus,
the Registration Statement, or any amendment or supplement thereto, in reliance
upon and in conformity with information relating to such holder furnished in
writing to the Company by such Holder expressly for use therein, provided that
in no event shall the aggregate liability of any selling Holder of Registrable
Securities exceed the amount of the net proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation. The Company and the selling Holders shall be entitled to receive
indemnities from underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, to the same
extent as customarily furnished by such persons in similar circumstances.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person entitled to
indemnification hereunder will (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party, provided, however, that any person
entitled to indemnification hereunder shall have the right to employ separate
counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person and not of the
indemnifying party unless (A) the indemnifying party has agreed to pay such fees
or expenses,(B) the indemnifying party shall have failed to assume the defense
of such claim and employ counsel reasonably satisfactory to such person or (C)
in the reasonable judgment of such person and the indemnifying party, based upon
advice of their respective counsel, a conflict of interest may exist between
such person and the indemnifying party with respect to such claims (in which
case, if the person notifies the indemnifying party in writing that such person
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such claim
on behalf of such person). If such defense is not assumed by the indemnifying
party, the indemnifying party will not be subject to any liability for any
settlement made without its consent (but such consent will not be unreasonably
withheld). No indemnified party will be required to consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by all claimants or plaintiffs to such indemnified party
of a release from all liability in respect to such claim or litigation. Any
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
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and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim. As used in this Section 8(c),
the terms "indemnifying party", "indemnified party" and other terms of similar
import are intended to include only the Company (and its officers, directors and
control persons as set forth above) on the one hand, and the Holders (and their
officers, directors, partners, employees, attorneys and control persons as set
forth above) on the other hand, as applicable.
(d) CONTRIBUTION. If for any reason the foregoing indemnity is
unavailable, then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other, or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in such proportion as
is appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other but
also the relative fault of the indemnifying party and the indemnified party as
well as any other relevant equitable considerations. Notwithstanding the
foregoing, no Holder shall be required to contribute any amount in excess of the
amount such Holder would have been required to pay to an indemnified party if
the indemnity under Section 8(b) hereof was available. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligation of any person to
contribute pursuant to this Section 8(d) shall be several and not joint.
(e) TIMING OF PAYMENTS. An indemnifying party shall make payments of
all amounts required to be made pursuant to the foregoing provisions of this
Section 8 to or for the account of the indemnified party from time to time
promptly upon receipt of bills or invoices relating thereto or when otherwise
due or payable.
(f) SURVIVAL. The indemnity and contribution agreements contained in
this Section 8 shall remain in full force and effect regardless of any
investigation made by or on behalf of a participating Holder, its officers,
directors, partners, attorneys, agents or any person, if any, who controls such
Holder as aforesaid, and shall survive the transfer of such Registrable
Securities by such Holder.
9. PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of a Registration Statement pursuant to the terms of this
Agreement:
(a) the Company shall, with respect to a Registration Statement filed
pursuant to Sections 2 and 4, give the Holders of such Registrable Securities so
registered, their underwriters, if any, and their respective counsel and
accountants the opportunity to participate in the preparation of such
Registration Statement (other than reports and proxy statements
12
incorporated therein by reference and lawfully and properly filed with the SEC)
and each Prospectus included therein or filed with the SEC, and each amendment
thereof or supplement thereto; and
(b) the Company shall give the Holders of such Registrable Securities
so registered, their underwriters, if any, and their respective counsel and
accountants such reasonable access to its books and records and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of such Holders or such underwriters, to
conduct a reasonable investigation within the meaning of Section 11(b)(3) of the
Securities Act.
10. RULE 144. The Company covenants that it will file, on a timely
basis, the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder, and it
will take such further action as any Holder may reasonably request (including,
without limitation, compliance with the current public information requirements
of Rule 144(c) and Rule 144A under the Securities Act), all to the extent
required from time to time to enable such holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
conditions provided by (a) Rule 144 under the Securities Act, as such Rule may
be amended from time to time,(b) Rule 144A under the Securities Act, as such
Rule may be amended from time to time or (c)any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any Holder, the Company will
deliver to such holder a written statement verifying that it has complied with
such information and requirements.
11. NO INCONSISTENT AGREEMENTS. The Company will not enter into any
agreement offering registration rights of the nature set forth herein without
the consent of SBIC Partners, which consent may be withheld, in the sole
discretion thereof.
12. ASSIGNMENT OF RIGHTS. The Holders may assign their rights under the
Agreement to (a) any transferee of the Registrable Securities of any Holder, if
such transferee has acquired at least five percent (5%) of any class, series or
type of the Registrable Securities originally held by such Holder and such
transferee has executed this Agreement and agreed to be bound by the terms
hereof (it being understood, however, that any such transferring Holder shall
retain all of such Holder's rights hereunder with respect to all Registrable
Securities not so transferred by such transferring Holder) or (b) any
stockholder, subsidiary, partner, nominee or affiliate of the Holders or any
such transferee.
13. SPECIFIC PERFORMANCE. Each Holder, in addition to being entitled to
exercise all rights provided herein or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of
13
the provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
14. NOTICES. All notices required or permitted under the terms of this
Agreement shall be delivered in the manner called for in the Stockholders
Agreement.
15. SUCCESSORS AND ASSIGNS. Subject to Section 11, this Agreement shall
inure to the benefit of the successors and assigns of the Holders, such that the
rights under this Agreement shall inure to the benefit of and be binding upon
subsequent holders of Registrable Securities without the need for an express
assignment. This Agreement shall inure to the benefit of and be binding upon
the Company and any corporation resulting from any merger or consolidation of
the Company with or into such corporation (in which the Company is not the
surviving corporation) or any corporation whose securities are issued in
exchange for the Company's shares of Common Stock.
16. SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and shall supersede and
preempt any prior understandings, agreements or representations, written or
oral, by or among the parties hereto.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be original, and all of which together shall
constitute one instrument.
19. AMENDMENT. Any provision of this Agreement may be amended, waived or
modified only by a writing signed by the Company and each Holder.
20. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
COMPANY: GOLDEN STATE ACQUISITION CORP.,
a Delaware corporation
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HOLDERS: SBIC PARTNERS, L.P.,
a Texas limited partnership
By: Xxxxxxx Xxxxxxx & Xxxxx X.X.,
General Partner
By: Xxxxxxx Xxxxxxx & Xxxxx
Venture Co.,
General Partner
By:
--------------------------------
Xxxxxxx X. Xxxxx
Office of the President
---------------------------------
Xxxxxxx X. X'Xxxxx
15
GOLDEN STATE ACQUISITION CORP.
SUPPLEMENTAL SIGNATURE PAGE
TO
REGISTRATION RIGHTS AGREEMENT
SUBSEQUENT CLOSING -- NOVEMBER 26, 1996
By their execution hereof, GOLDEN STATE ACQUISITION CORP., a Delaware
corporation (the "Company"), and each of the undersigned (each, a "Holder" and
collectively, the "Holders"), hereby become parties to the Registration Rights
Agreement dated as of October 10, 1996 (the "Registration Rights Agreement") by
and among the Company, SBIC Partners, L.P. and Xxxxxxx X. X'Xxxxx. As of the
date hereof, the Company and the Holders each acknowledge and agree to the
provisions, terms and conditions of the Registration Rights Agreement with
respect to the shares of the Company's Class K Common Stock set forth opposite
each Holder's name on Exhibit B hereto.
IN WITNESS WHEREOF, this Supplemental Signature Page has been executed
and delivered as of the date forth set forth above.
GOLDEN STATE ACQUISITION CORP.
By:
----------------------------------
Xxxxxxx X. X'Xxxxx
President
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
HOLDERS: R&M PARTNERS/GSV, G.P.
By:
---------------------------------------
Xxxxxxx X. XxXxxxxx
General Partner
Address: Xxxxxxx & XxXxxxxx
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
--------------------------------------------
Xxxxxx Xxxxxxxx
Address: The Xxxxxxxx Company
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
--------------------------------------------
Xxxxx Xxxxxx
Address: Xxxxxx Consulting Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
2
EXHIBIT B
SCHEDULE OF SUBSEQUENT HOLDERS
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Number of Shares of
Holder Class K Common Stock
------ --------------------
------------------------------------------------------------------------------
R&M Partners/GSV, G.P. 20,661
------------------------------------------------------------------------------
Xxxxx Xxxxxx 6,887
------------------------------------------------------------------------------
Xxxxxx Xxxxxxxx 6,887
------------------------------------------------------------------------------
TOTAL 34,435
------------------------------------------------------------------------------
------------------------------------------------------------------------------
3
