REGISTRATION RIGHTS AGREEMENT
October 12, 2006
XXXXX AND COMPANY, LLC
As Initial Purchaser
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
XxXxxx Corporation, a placeStateDelaware corporation (the
"Company"), proposes to issue and sell to you (the "Initial Purchaser"), upon
the terms set forth in a purchase agreement dated October 5, 2006 (the "Purchase
Agreement"), $60,000,000 principal amount of its 4.00% Convertible Senior Notes
due 2026 (the "Securities"). As an inducement to you to enter into the Purchase
Agreement and in satisfaction of a condition to your obligations thereunder, the
Company agrees with you, for the benefit of the holders (including the Initial
Purchaser) of the Securities, as follows:
1. Definitions. Capitalized terms used but not specifically
defined herein have the respective meanings ascribed thereto in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
"Additional Interest" has the meaning set forth in Section 3
hereof.
"Additional Interest Accrual Period" has the meaning set forth
in Section 3 hereof.
"Additional Interest Amount" has the meaning set forth in
Section 3 hereof.
"Additional Interest Payment Date" means each of April 15 and
October 15.
"Affiliate" means with respect to any specified person, an
"affiliate," as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set
forth in Section 2(d)(i) hereof.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in The City of New
York are authorized or obligated by law or executive order to close.
"Closing Date" means the date of this Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the shares of common stock, $0.01 par
value, of the Company, and any other shares of common stock as may constitute
"Common Stock" for purposes of the Indenture, including the Underlying Common
Stock.
"Conversion Price" has the meaning assigned such term in the
Indenture.
"Deferral Notice" has the meaning set forth in Section
4(h)(ii) hereof.
"Deferral Period" has the meaning set forth in Section
4(h)(ii) hereof.
"Effectiveness Deadline Date" has the meaning set forth in
Section 2(a) hereof.
"Effectiveness Period" means the period commencing on the date
hereof and ending on the date that all Notes and Underlying Common Stock have
ceased to be Registrable Securities; provided, however, that in no event shall
the Effectiveness Period extend beyond October 12, 2008.
"Election and Questionnaire" means a written notice delivered
to the Company containing substantially all of the information called for by the
Selling Securityholder Election and Questionnaire attached as Annex A to the
Offering Circular of the Company dated October 5, 2006 relating to the Notes, as
such notice may be amended by the Company upon the advice of
nationally-recognized counsel experienced in such matters, to the extent
reasonably necessary to ensure compliance with applicable law.
"Event" has the meaning set forth in Section 3 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Filing Deadline Date" has the meaning set forth in Section
2(a) hereof.
"Holder" means a Person who owns, beneficially or otherwise,
Registrable Securities.
"Holders' Information" has the meaning set forth in Section
7(a) hereof.
"Indenture" means the Indenture, dated as of the Closing Date,
between the Company and U.S. Bank National Association, as trustee, pursuant to
which the Notes are being issued.
"Initial Purchaser" has the meaning set forth in the preamble
hereof.
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"Initial Shelf Registration Statement" has the meaning set
forth in Section 2(a) hereof.
"Material Event" has the meaning set forth in Section 4(h)
hereof.
"Notes" means the 4.00% Convertible Senior Notes due 2026 of
the Company to be purchased pursuant to the Purchase Agreement.
"Notice Holder" means, on any date, any Holder that has
delivered (1) an Election and Questionnaire to the Company on or prior to such
date and (2) all information regarding such Holder and the distribution of such
Holder's Registrable Securities as the Company shall reasonably request.
"Purchase Agreement" has the meaning set forth in the preamble
hereof.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated
by reference or explicitly deemed to be incorporated by reference in such
Prospectus.
"Record Holder" means with respect to any Additional Interest
Payment Date relating to any Notes as to which any Additional Interest Amount
has accrued, the registered holder of such Note on the April 1 immediately
preceding an Additional Interest Payment Date occurring on a April 15, and on
the October 1 immediately preceding an Additional Interest Payment Date
occurring on a October 15.
"Registrable Securities" means the Notes until such Notes have
been converted into the Underlying Common Stock and, at all times subsequent to
any such conversion, the Underlying Common Stock and any securities into or for
which such Underlying Common Stock has been converted or exchanged, and any
security issued with respect thereto upon any stock dividend, split or similar
event until, in the case of any such security, the earliest of (i) its effective
registration under the Securities Act and resale in accordance with the
Registration Statement covering it or its sale to the public pursuant to Rule
144 (or any similar provision then in force, but not Rule 144A), (ii) expiration
of the holding period that would be applicable thereto for non-affiliates of the
Company under Rule 144(k), (iii) the date when it ceases to be outstanding
(whether as a result of a repurchase and cancellation or otherwise), or (iv)
October 12, 2008.
"Registration Statement" means any registration statement of
the Company that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits and all materials incorporated by reference or explicitly deemed to
be incorporated by reference in such registration statement.
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"Restricted Securities" means "restricted securities" as
defined in Rule 144.
"Rule 144" means Rule 144 under the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Rule 144A" means Rule 144A under the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the Commission thereunder.
"Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
"Special Counsel" means Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP or one such other successor counsel as shall be specified by the Holders of
a majority of the Registrable Securities, but which may, with the written
consent of the Initial Purchaser (which shall not be unreasonably withheld,
delayed or conditioned), be another nationally recognized law firm experienced
in securities law matters designated by the Company, the reasonable fees and
expenses of which will be paid by the Company pursuant to Section 6 hereof. For
purposes of determining the holders of a majority of the Registrable Securities
in this definition, Holders of Notes shall be deemed to be the Holders of the
number of shares of Underlying Common Stock into which such Notes are or would
be convertible as of the date the consent is requested.
"Subsequent Shelf Registration Statement" has the meaning set
forth in Section 2(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means U.S. Bank National Association, the Trustee
under the Indenture.
"Underlying Common Stock" means the Common Stock into which
the Notes are convertible or which is issued upon any such conversion.
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2. Registered Offer.
(a) The Company shall prepare and file or cause to be
prepared and filed with the Commission within one hundred twenty (120) days of
the Closing Date (the "Filing Deadline Date"), a Registration Statement for an
offering to be made on a delayed or continuous basis pursuant to Rule 415 of the
Securities Act (a "Shelf Registration Statement") registering the resale from
time to time by Holders thereof of all of the Registrable Securities (the
"Initial Shelf Registration Statement"). The Initial Shelf Registration
Statement shall be on Form S-3 or, if unavailable, another appropriate form
permitting registration of such Registrable Securities for resale by such
Holders in accordance with the methods of distribution reasonably requested by
the Holders and set forth in the Initial Shelf Registration Statement. The
Company shall use its reasonable efforts to cause the Initial Shelf Registration
Statement to be declared effective under the Securities Act as promptly as is
practicable but in any event by the date (the "Effectiveness Deadline Date")
that is two hundred ten (210) days after the Closing Date, and to keep the
Initial Shelf Registration Statement (or any Subsequent Shelf Registration
Statement) continuously effective under the Securities Act until the expiration
of the Effectiveness Period. At the time the Initial Shelf Registration
Statement is declared effective, each Holder that became a Notice Holder on or
prior to the date five (5) Business Days prior to such time of effectiveness
shall be named as a selling securityholder in the Initial Shelf Registration
Statement and the related Prospectus in such a manner as to permit such Holder
to deliver such Prospectus to purchasers of Registrable Securities in accordance
with applicable law and the Plan of Distribution set forth in the Prospectus.
None of the Company's security holders (other than the Holders of Registrable
Securities) shall have the right to include any of the Company's securities in
the Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any
Subsequent Shelf Registration Statement ceases to be effective for any reason at
any time during the Effectiveness Period (other than because all Registrable
Securities registered thereunder shall have been resold pursuant thereto or
shall have otherwise ceased to be Registrable Securities), the Company shall use
its reasonable efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof including, if reasonably necessary, by amending the
Shelf Registration Statement in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional Shelf Registration Statement covering all of the securities that as
of the date of such filing are Registrable Securities (a "Subsequent Shelf
Registration Statement"). If a Subsequent Shelf Registration Statement is filed,
the Company shall use its reasonable efforts to cause the Subsequent Shelf
Registration Statement to become effective as promptly as practicable after such
filing and to keep such Subsequent Shelf Registration Statement continuously
effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf
Registration Statement to the extent required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement, if required by the Securities Act or as necessary
to name a Notice Holder as a selling securityholder pursuant to Section (d)
below.
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(d) Each Holder agrees that if such Holder wishes to sell
Registrable Securities pursuant to a Shelf Registration Statement and related
Prospectus, it will do so only in accordance with this Section 2(d) and Section
4(h). Each Holder who elects to sell Registrable Securities pursuant to a Shelf
Registration Statement agrees to complete and deliver an Election and
Questionnaire to the Company and that it will be bound by the terms and
conditions of the Election and Questionnaire and this Agreement. From and after
the date the Initial Shelf Registration Statement is declared effective, the
Company will use reasonable efforts, promptly after receipt of a Election and
Questionnaire, delivered pursuant to Section 10(b) hereof and any information
reasonably requested by the Company in addition to the Election and
Questionnaire, or promptly after the end of any period during which the Company
has suspended use of the Prospectus:
(i) if required by applicable law, file with the
Commission a post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other required document so that such Notice Holder is
named as a selling securityholder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Notice Holder to deliver
such Prospectus to purchasers of its Registrable Securities in accordance with
applicable law and the Plan of Distribution set forth in the Prospectus and, if
the Company shall file a post-effective amendment to the Shelf Registration
Statement, use its reasonable efforts to cause such post-effective amendment to
be declared effective under the Securities Act as promptly as is practicable,
but in any event by the date (as such date may be extended as set forth in this
Section 2 below, the "Amendment Effectiveness Deadline Date") that is sixty (60)
days after the date such post-effective amendment is filed;
(ii) provide such Notice Holder copies of any documents
filed pursuant to Section 2(d)(i); and
(iii) notify such Notice Holder as promptly as
reasonably practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section 2(d)(i);
provided, that if such Election and Questionnaire is delivered during a Deferral
Period, the Company shall so inform the Notice Holder delivering such Election
and Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Deferral Period in accordance with Section
4(h). Notwithstanding anything contained herein to the contrary, (i) the Company
shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Registration Statement or related Prospectus and
(ii) the Amendment Effectiveness Deadline Date shall be extended by up to ten
(10) Business Days from the expiration of a Deferral Period (and the Company
shall incur no obligation to pay Additional Interest during such extension) if
such Deferral Period shall be in effect on the Amendment Effectiveness Deadline
Date.
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3. Additional Interest. The parties hereto agree that the
Holders of Registrable Securities will suffer damages, and that it would not be
feasible to ascertain the extent of such damages with precision, if, other than
as permitted hereunder,
(a) the Initial Shelf Registration Statement has not been
filed on or prior to the Filing Deadline Date,
(b) the Initial Shelf Registration Statement has not been
declared effective under the Securities Act on or prior to the Effectiveness
Deadline Date,
(c) the aggregate duration of Deferral Periods in any
period exceeds the number of days permitted in respect of such period pursuant
to Section 4(h) hereof, or
(d) any post-effective amendment to a Shelf Registration
Statement filed pursuant to Section 2(d)(i) has not been declared effective
under the Securities Act on or prior to the Amendment Effectiveness Deadline
Date.
Each event described in any of the foregoing clauses (a) through (d) is
individually referred to herein as an "Event." For purposes of this Agreement,
each Event set forth above shall begin on the beginning dates set forth in the
table below and shall end on the ending dates set forth in the table below:
TYPE OF EVENT BY
CLAUSE BEGINNING DATE ENDING DATE
---------------- ----------------------------------------------- -----------------------------------------
(a) Filing Deadline Date the date the Initial Shelf
Registration Statement is filed
(b) Effectiveness Deadline Date the date the Initial Shelf
Registration Statement becomes effective
under the Securities Act
(c) the date on which the aggregate duration of the earlier of October 12, 2008
Deferral Periods in any period exceeds the and the termination of the
number of days permitted by Section 4(h) Deferral Period that caused the
limit on the aggregate duration
of Deferral Periods to be exceeded
(d) the Amendment Effectiveness Deadline Date the earlier of October 12, 2008
and the date the applicable
post-effective amendment to a
Shelf Registration Statement
becomes effective under the
Securities Act
-------------------------------------------------------------------------------------------------------------------
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Commencing on (and including) any date that an Event has begun
and ending on (but excluding) the next date on which there are no Events that
have occurred and are continuing (an "Additional Interest Accrual Period"), the
Company shall pay, as additional interest ("Additional Interest") and not as a
penalty, to Record Holders of Registrable Securities that are Notes an amount
(the "Additional Interest Amount") accruing, for each day in the Additional
Interest Accrual Period, in respect of any Note at a rate per annum equal to
0.25% of the outstanding principal amount thereof for the first 90 days after
the occurrence of the Event and 0.50% of the outstanding principal amount
thereof after the first 90 days; provided that, subject to DTC requirements for
book-entry procedures, such Additional Interest Amount shall be paid only to the
Holders (as set forth in the succeeding paragraph) that have delivered Elections
and Questionnaires to the Company and only with respect to such Holder's
Registrable Securities. Notwithstanding the foregoing, no Additional Interest
Amount shall accrue as to any Registrable Security from and after the earlier of
(x) the date such security is no longer a Registrable Security and (y)
expiration of the Effectiveness Period. The rate of accrual of the Additional
Interest Amount with respect to any period shall not exceed the rate provided
for in this paragraph notwithstanding the occurrence of multiple concurrent
Events.
The Additional Interest Amount shall accrue from the first day
of the applicable Additional Interest Accrual Period, and shall be payable on
each Additional Interest Payment Date during the Additional Interest Accrual
Period (and, without duplication, on the Additional Interest Payment Date next
succeeding the end of the Additional Interest Accrual Period if the Additional
Interest Accrual Period does not end on an Additional Interest Payment Date) to
the Record Holders of the Registrable Securities that are Notes entitled
thereto; provided that any Additional Interest Amount accrued with respect to
any Note or portion thereof redeemed by the Company on a redemption date or
purchased by the Company on a repurchase date prior to the Additional Interest
Payment Date, shall, in any such event, be paid instead to the Holder who
submitted such Note or portion thereof for redemption or repurchase on the
applicable redemption date or repurchase date, as the case may be, on such date;
provided further, that, subject to DTC requirements for book-entry procedures,
such Additional Interest Amount shall be paid only to the Holders entitled
thereto that have delivered Elections and Questionnaires to the Company, by
check mailed to the address set forth in the Election and Questionnaire
delivered by such Holder. If a Holder has converted some or all of its Notes,
the Holder will not be entitled to receive any Additional Interest Amount with
respect to any Underlying Common Stock received upon conversion or the principal
amount of the Notes that have been so converted. In addition, in no event will
any Additional Interest Amount be payable in connection with a Registration
Default relating to a failure to register the Underlying Common Stock, if any,
deliverable upon conversion of the Notes. For avoidance of doubt, if the Company
fails to register both the Notes and the Underlying Common Stock deliverable
upon conversion of the Notes, then any Additional Interest Amount will be
payable in connection with the Registration Default relating to the failure to
register the Notes. The Trustee shall be entitled, on behalf of registered
holders of Notes or Underlying Common Stock, to seek any available remedy for
the enforcement of this Agreement, including, with respect to the Notes, for the
payment of such Additional Interest Amount. Notwithstanding the foregoing, the
parties agree that the sole damages payable for a violation of the terms of this
Agreement
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with respect to which an Additional Interest Amount is expressly
provided shall be such Additional Interest Amount. Nothing shall preclude any
Holder from pursuing or obtaining specific performance or other equitable relief
with respect to this Agreement.
All of the Company's obligations set forth in this Section 3
that are outstanding with respect to any Registrable Security at the time such
security ceases to be a Registrable Security shall survive until such time as
all such obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section 10(m)).
The parties hereto agree that the Additional Interest Amount
provided for in this Section 3 constitutes a reasonable estimate of the damages
that may be incurred by Holders of Notes by reason of the failure of the Shelf
Registration Statement to be filed or declared effective or available for
effecting resales of Notes in accordance with the provisions hereof.
4. Registration Procedures. In connection with the
registration obligations of the Company under Section 2 hereof, during the
Effectiveness Period, the Company shall:
(a) Prepare and file with the Commission a Registration
Statement or Registration Statements on any appropriate form under the
Securities Act available for the sale of the Registrable Securities by the
Holders thereof in accordance with the reasonably requested method or methods of
distribution thereof, and use its reasonable efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided that before filing any Registration Statement or Prospectus or
any amendments or supplements thereto with the Commission, the Company shall
furnish to the Initial Purchaser and the Special Counsel of such offering, if
any, copies of all such documents proposed to be filed at least three (3)
Business Days prior to the filing of such Registration Statement or amendment
thereto or Prospectus or supplement thereto; provided, further, that the
documents required to be filed pursuant to Section 2(d) shall be furnished
instead to the Initial Purchaser and the Special Counsel not later than three
(3) Business Days prior to the filing thereof. The Company shall use its
reasonable efforts to reflect in each such document, when so filed with the
Commission, such comments as the Initial Purchaser and the Special Counsel may
reasonably propose.
(b) Subject to Section 4(h), prepare and file with the
Commission such amendments and post-effective amendments to each Registration
Statement as may be necessary to keep such Registration Statement continuously
effective for the applicable period specified in Section 2(a); cause the related
Prospectus to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) under the Securities Act; and use its reasonable efforts to comply with
the provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement during the
Effectiveness Period in accordance with the intended methods of disposition by
the sellers thereof set forth in such Registration Statement as so amended or
such Prospectus as so supplemented.
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(c) As promptly as practicable give notice to the Notice
Holders, the Initial Purchaser and the Special Counsel, (i) when any Prospectus,
prospectus supplement, Registration Statement or post-effective amendment to a
Registration Statement has been filed with the Commission and, with respect to a
Registration Statement or any post-effective amendment, when the same has been
declared effective, (ii) of any request, following the effectiveness of the
Initial Shelf Registration Statement under the Securities Act, by the Commission
or any other federal or state governmental authority for amendments or
supplements to any Registration Statement or related Prospectus or for
additional information, (iii) of the issuance by the Commission or any other
federal or state governmental authority of any stop order suspending the
effectiveness of any Registration Statement or the initiation or threatening of
any proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the occurrence of, but not the nature of or details concerning,
a Material Event and (vi) of the determination by the Company that a
post-effective amendment to a Registration Statement will be filed with the
Commission, which notice may, at the discretion of the Company (or as required
pursuant to Section 4(h)), state that it constitutes a Deferral Notice, in which
event the provisions of Section 4(h) shall apply.
(d) Use its reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction in which they
have been qualified for sale, in either case as promptly as practicable, and
provide prompt notice to each Notice Holder and the Initial Purchaser of the
withdrawal of any such order.
(e) As promptly as practicable furnish to each Notice
Holder, the Special Counsel and the Initial Purchaser, upon reasonable request
and without charge, at least one (1) conformed copy of the Registration
Statement and any amendment thereto, including exhibits and if requested, all
documents incorporated or deemed to be incorporated therein by reference.
(f) Deliver to each Notice Holder, the Special Counsel, if
any, and the Initial Purchaser, in connection with any sale of Registrable
Securities pursuant to a Registration Statement, without charge, as many copies
of the Prospectus or Prospectuses relating to such Registrable Securities
(including each preliminary prospectus) and any amendment or supplement thereto
as such Notice Holder may reasonably request; and the Company hereby consents
(except during such periods that a Deferral Notice is outstanding and has not
been revoked) to the use of such Prospectus or each amendment or supplement
thereto by each Notice Holder in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or supplement
thereto in the manner set forth therein.
(g) Prior to any public offering of the Registrable
Securities pursuant to a Registration Statement, use its reasonable efforts to
register or qualify or cooperate with the Notice Holders and the Special Counsel
in connection with the registration or qualification (or exemption from such
registration or qualification) of such
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Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions within the United States as any Notice Holder reasonably
requests in writing (which request may be included in the Election and
Questionnaire); prior to any public offering of the Registrable Securities
pursuant to the Shelf Registration Statement, use its reasonable efforts to keep
each such registration or qualification (or exemption therefrom) effective
during the Effectiveness Period in connection with such Notice Holder's offer
and sale of Registrable Securities pursuant to such registration or
qualification (or exemption therefrom) and do any and all other acts reasonably
necessary to legally permit the disposition in such jurisdictions of such
Registrable Securities in the manner set forth in the relevant Registration
Statement and the related Prospectus; provided that the Company will not be
required to (i) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where it would not otherwise be required to qualify but for
this Agreement or (ii) take any action that would subject it to general service
of process in suits or to taxation in any such jurisdiction where it is not then
so subject.
(h) Upon (A) the issuance by the Commission of a stop
order suspending the effectiveness of the Shelf Registration Statement or the
initiation of proceedings with respect to the Shelf Registration Statement under
Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or
the existence of any fact (a "Material Event") as a result of which any
Registration Statement shall contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or any Prospectus shall contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or (C) the
occurrence or existence of any pending corporate development that, in the
reasonable discretion of the Company, makes it appropriate to suspend the
availability of the Shelf Registration Statement and the related Prospectus (a
"Material Corporate Development"):
(i) in the case of clause (B) above, subject to the
next sentence, as promptly as practicable prepare and file, if necessary
pursuant to applicable law, a post-effective amendment to such Registration
Statement or a supplement to the related Prospectus or any document incorporated
therein by reference or file any other required document that would be
incorporated by reference into such Registration Statement and Prospectus so
that such Registration Statement does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and such Prospectus
does not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, and, in the case of a post-effective amendment
to a Registration Statement, subject to the next sentence, use its reasonable
efforts to cause it to be declared effective as promptly as is reasonably
practicable, and
(ii) give notice to the Notice Holders and the Special
Counsel, if any, that the availability of the Shelf Registration Statement is
suspended (a "Deferral Notice") and, upon receipt of any Deferral Notice, each
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Notice Holder agrees not to sell any Registrable Securities pursuant to the
Registration Statement until such Notice Holder's receipt of copies of the
supplemented or amended Prospectus provided for in clause (i) above, or until it
is advised in writing by the Company that the Prospectus may be used, and has
received copies of any additional or supplemental filings that are incorporated
or deemed incorporated by reference in such Prospectus.
The Company will use its reasonable efforts to ensure that the use of the
Prospectus may be resumed (x) in the case of clause (A) above, as promptly as
practicable, (y) in the case of clause (B) above, as soon as, in the reasonable
discretion of the Company, public disclosure of such Material Event would not be
prejudicial to or contrary to the interests of the Company and (z) in the case
of clause (C) above, as soon as in the reasonable discretion of the Company,
such suspension is no longer appropriate. The Company shall be entitled to
exercise its right under this Section 4(h) to suspend the availability of the
Shelf Registration Statement or any Prospectus for a reasonable period of time,
and any such period during which the availability of the Registration Statement
and any Prospectus is suspended (the "Deferral Period") shall, without incurring
any obligation to pay Additional Interest pursuant to Section 3, not exceed 30
days in any three (3) month period (or 60 days in any three (3) month period in
the event of a Material Corporate Development pursuant to which the Company has
delivered a second notice as permitted below); provided that in the case of a
Material Corporate Development relating to an acquisition or a probable
acquisition or financing, recapitalization, business combination or other
similar transaction, the Company may, without incurring any obligation to pay
Additional Interest pursuant to Section 3, deliver to Notice Holders a second
notice to the effect set forth above, which shall have the effect of extending
the permitted duration of the Deferral Period by up to an additional 30 days, or
such shorter period of time as is specified in such second notice; provided,
further that the aggregate duration of any Deferral Periods shall not exceed 90
days in any twelve (12) month period.
(i) Comply with all applicable rules and regulations of
the Commission in all material respects and make generally available to its
securityholders earning statements (which need not be audited) satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) for a 12-month period
commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of a Registration Statement, which
statements shall be made available no later than 45 days after the end of the
12-month period or 90 days if the 12-month period coincides with the fiscal year
of the Company.
(j) Cooperate with each Notice Holder to facilitate the
timely preparation and delivery of certificates, or, if applicable, global
certificates and book-entry transfers therein, representing Registrable
Securities sold or to be sold pursuant to a Registration Statement, which
certificates shall not bear any restrictive legends (unless required by
applicable law), and cause such Registrable Securities to be issued in such
denominations as are permitted by the Indenture and registered in such names as
such Notice Holder may request in writing at least three (3) Business Days prior
to any sale of such Registrable Securities.
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(k) Provide a CUSIP number for all Registrable Securities
covered by each Registration Statement not later than the effective date of such
Registration Statement and provide the Trustee and the transfer agent for the
Common Stock with printed certificates for the Registrable Securities that are
in a form eligible for deposit with The Depository Trust Company.
(l) Cooperate and assist in any filings required to be
made with the National Association of Securities Dealers, Inc.
(m) Upon (i) the filing of the Initial Shelf Registration
Statement and (ii) the effectiveness of the Initial Shelf Registration
Statement, as promptly as is reasonably practicable, announce the same, in each
case by release to Business Wire.
(n) In connection with any Shelf Registration Statement,
enter into such customary agreements upon terms that are reasonably satisfactory
to the Company (including, if requested, an underwriting agreement in customary
form) and take all such other action, if any, as Holders of a majority of the
Registrable Securities being sold or the managing underwriters (if any) shall
reasonably request in order to facilitate any disposition of the Registrable
Securities pursuant to such Shelf Registration Statement.
(o) In connection with any Shelf Registration Statement,
(i) make reasonably available for inspection by a representative of, and Special
Counsel acting for, Holders of a majority of the Registrable Securities being
sold and any underwriter participating in any disposition of the Registrable
Securities pursuant to such Shelf Registration Statement, all relevant financial
and other records, pertinent corporate documents and properties of the Company
and its subsidiaries and (ii) use its reasonable efforts to have its officers,
directors, employees, accountants and counsel supply all relevant information
reasonably requested by such representative, Special Counsel or any such
underwriter in connection with such Shelf Registration Statement.
(p) In connection with any Shelf Registration Statement,
if requested by Holders of a majority of the Registrable Securities being sold,
their Special Counsel or the managing underwriters (if any) in connection with
such Shelf Registration Statement, use its reasonable efforts to cause (i) its
counsel to deliver an opinion relating to the Shelf Registration Statement and
the Registrable Securities in customary form, (ii) its officers to execute and
deliver all customary documents and certificates requested by Holders of a
majority of the Registrable Securities being sold, their Special Counsel or the
managing underwriters (if any) and (iii) its independent public accountants to
provide a comfort letter in customary form, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement of Auditing
Standards No. 72. For purposes of determining the holders of a majority of the
Registrable Securities in this paragraph (p) and in paragraphs (n) and (o)
above, Holders of Notes shall be deemed to be the Holders of the number of
shares of Underlying Common Stock into which such Notes are or would be
convertible as of the relevant date.
5. Holder's Obligations. (a) Each Holder agrees, by
acquisition of the Registrable Securities, that no Holder shall be entitled to
sell any of such Registrable Securities pursuant to a Registration Statement or
to receive a Prospectus relating thereto,
13
unless such Holder has furnished the Company with an Election and Questionnaire
as required pursuant to Section 2(d) hereof (including the information required
to be included in such Election and Questionnaire) and the information set forth
in the next sentence. Each Notice Holder agrees promptly to furnish to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Notice Holder not
misleading and any other information regarding such Notice Holder and the
distribution of such Registrable Securities as the Company may from time to time
reasonably request. Any Holder of Registrable Securities who fails to provide
such information shall not be entitled to receive any Additional Interest Amount
that the Company otherwise becomes obligated to pay as a result of such failure.
(b) In the event of a sale of Registrable Securities by
the Holder under the Registration Statement, if requested by the Company, the
Holder shall deliver to the Company's transfer agent, with a copy to the
Company, a Certificate of Subsequent Sale substantially in the form attached
hereto as Exhibit A.
6. Registration Expenses. The Company will bear all expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 4 hereof and the Company will reimburse the Initial Purchaser and the
Holders for the reasonable fees and disbursements of the Special Counsel, as and
when incurred. In no event shall the Company reimburse the Holders for any
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of any Registrable Securities.
7. Indemnification.
(a) Indemnification of Holders. The Company shall
indemnify and hold harmless each Holder (including the Initial Purchaser) and
each person, if any, who controls such Holder within the meaning of the
Securities Act (collectively referred to for the purposes of this Section 7 as a
"Holder") against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, without limitation, any loss, claim,
damage, liability or action relating to purchases and sales of Registrable
Securities), to which that Holder may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action arises
out of or is based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement or Prospectus or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state in any Registration Statement or any Prospectus or in any amendment or
supplement thereto a material fact required to be stated therein or necessary to
make the statements therein (in the case of any Prospectus, in the light of the
circumstances under which they were made) not misleading, and shall reimburse
each Holder for any legal or other expenses reasonably incurred by that Holder
in connection with investigating or preparing to defend or defending against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any preliminary prospectus or Registration Statement or any such amendment
or supplement in reliance upon and in conformity with any information included
therein in reliance upon or in conformity with written information furnished to
the Company by or on behalf of any Holder specifically for use therein (the
"Holders' Information") or as a result of any matter constituting a breach of
the covenants of such Holder under Section 4(h)(ii).
14
(b) Indemnification of Company, Directors and Officers.
Each Holder, severally and not jointly, agrees to indemnify and hold harmless
the Company, its directors, its officers who sign any Shelf Registration
Statement and each person, if any, who controls the Company within the meaning
of the Securities Act (collectively referred to for the purposes of this Section
7 as the "Company"), against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in a
Prospectus or Registration Statement or in any amendment or supplement thereto
or (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, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with any Holders' Information or resulted from a breach
of the covenants of such Holder under Section 4(h)(ii), and shall reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or preparing to defend or defending against or
appearing as third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; provided however,
that no such Holder shall be liable for any indemnity claims hereunder in excess
of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Registration Statement.
(c) Actions; Notification. Promptly after receipt by an
indemnified party under this Section 7 of notice of any claim or the
commencement of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this Section 7,
notify the indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 7 except to the extent it has been materially prejudiced by such
failure; and, provided, further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 7. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
15
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it 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 action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for all such indemnified
parties, which firm shall be designated in writing by the Holders of a majority
in aggregate principal amount of the Registrable Securities, if the indemnified
parties under this Section 7 consist of any Holder or any of its respective
officers, employees or controlling persons, or by the Company, if the
indemnified parties under this Section 7 consist of the Company or any of its
directors, officers, employees or controlling persons. Each indemnified party,
as a condition of the indemnity agreements contained in Sections 7(a) and 7(b),
shall use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. Subject to the provisions of Section 7(d)
below, no indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) Settlement without Consent if Failure to Reimburse. If
at any time an indemnified party shall have requested in good faith that an
indemnifying party reimburse the indemnified party for reasonable fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by this Section 7 effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the request for reimbursement, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) Contribution. If the indemnification provided for in
this Section 7 is unavailable or insufficient to hold harmless an indemnified
party under Section 7(a) or (b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and a
Holder with respect to the sale by such Holder of Registrable Securities on the
other or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and such Holder on the other with respect to the
16
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and a Holder on the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Registrable Securities (before deducting expenses) received by the Company as
set forth on the cover of the Offering Circular bear to the total net proceeds
received by such Holder with respect to its sale of Registrable Securities. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or to any Holders' Information supplied by such Holder
on the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Holders agree that it would not be just and
equitable if contributions pursuant to this Section 7(e) were to be determined
by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(e) shall be
deemed to include, for purposes of this Section 7(e), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(e), no Holder shall be required to contribute any
amount in excess of the amount by which the total price at which the Registrable
Securities sold by such Holder to any purchaser exceeds the amount of any
damages which such Holder has otherwise paid or become liable to pay by reason
of any untrue or alleged untrue statement or omission or alleged omission. 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.
Any Holder's obligations to contribute as provided in this
Section 7(e) are several and not joint.
The obligations of the Company and the Holders in this
Section 7 are in addition to any other liability which the Company or the
Holders, as the case may be, may otherwise have.
8. Rules 144 and 144A. The Company shall use its reasonable
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the written request of any Holder,
make publicly available other information so long as necessary to permit sales
of such Holder's securities pursuant to Rules 144 and 144A. The Company
covenants that it will take such further action as any Holder may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rules 144 and 144A (including,
without limitation, the requirements of Rule 144A(d)(4)). Upon the written
request of any Holder, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 8 shall be deemed to require the Company
to register any of its securities pursuant to the Exchange Act.
17
9. Underwritten Registrations. If any of the Registrable
Securities covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Holders of
a majority in aggregate principal amount of such Registrable Securities included
in such offering, subject to the consent of the Company (which shall not be
unreasonably withheld or delayed), and such Holders shall be responsible for all
underwriting commissions and discounts in connection therewith.
10. Miscellaneous.
(a) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of Holders of a majority of the then outstanding Registrable Securities.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders whose securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect the rights of other Holders may be
given by Holders of at least a majority of the Registrable Securities being sold
by such Holders pursuant to such Registration Statement; provided that the
provisions of this sentence may not be amended, modified or supplemented except
in accordance with the provisions of the immediately preceding sentence, and
provided further that no modification may change the provisions relating to the
payment of Additional Interest without the consent of each Holder of Registrable
Securities. Notwithstanding the foregoing sentence, this Agreement may be
amended by written agreement signed by the Company and the Initial Purchaser,
without the consent of the Holders of Registrable Securities, to cure any
ambiguity or to correct or supplement any provision contained herein that may be
defective or inconsistent with any other provision contained herein, or to make
such other provisions in regard to matters or questions arising under this
Agreement that shall not adversely affect the interests of the Holders of
Registrable Securities. Each Holder of Registrable Securities outstanding at the
time of any such amendment, modification, supplement, waiver or consent or
thereafter shall be bound by any such amendment, modification, supplement,
waiver or consent effected pursuant to this Section 10(a).
(b) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given
by such Holder to the Company in accordance with the provisions of this Section
10(b), which address initially is, with respect to each Holder, the address of
such Holder maintained by the registrar under the Indenture, with a copy in like
manner to Xxxxx and Company, LLC;
18
(ii) if to you, initially at your address set forth in
the Purchase Agreement; and
(iii) if to the Company, initially at the address of
the Company set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; one Business
Day after being delivered to a next-day air courier; five Business Days after
being deposited in the U.S. mail with first class postage prepaid; and, if
telecopied when receipt is acknowledged by the recipient's telecopier machine.
(c) Successors and Assigns. Any person who purchases any
Registrable Securities from an Initial Purchaser shall be deemed, for purposes
of this Agreement, to be an assignee of the Initial Purchaser. This Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties and shall inure to the benefit of and be binding upon each
Holder of any Registrable Securities, provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement, applicable law
or the Indenture. If any 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
Agreement, and by taking and holding such Registrable Securities, such person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such person shall be entitled to
receive the benefits hereof.
(d) Counterparts. This Agreement may be executed in any
number of counterparts (which may be delivered in original form or by telecopies
or in the form of a PDF file delivered by electronic mail) 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 Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) No Inconsistent Agreements. The Company has not and
shall not, on or after the date of this Agreement, enter into any agreement that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not previously
entered into any agreement which remains in effect granting any registration
rights with respect to any of its debt securities to any person. Without
limiting the generality of the foregoing, without the written consent of the
Holders of a majority in aggregate principal amount of the then outstanding
Registrable Securities, the Company shall not grant to any person the right to
request the Company to register any debt securities of the Company under the
Securities Act unless the rights so granted are not in conflict or inconsistent
with the provisions of this Agreement.
19
(h) No Piggyback on Registrations. Neither the Company,
nor any of its security holders (other than the holders of Registrable
Securities in such capacity) shall have the right to include any securities of
the Company in any Shelf Registration Statement other than Registrable
Securities.
(i) Severability. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their reasonable efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(j) Remedies. In the event of a breach by the Company, or
by any Holder of any of their obligations under this Agreement, each Holder or
the Company, as the case may be, in addition to being entitled to exercise all
rights granted by law, including recovery of damages (other than the recovery of
damages for a breach by the Company of its obligations under Section 2 or 4
hereof for which the additional interest described in Section 3 hereof shall be
the sole and exclusive monetary remedy), will be entitled to specific
performance of its rights under this Agreement. The Company and each Holder of
Registrable Securities agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agree that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(k) Approval of Holders. Whenever the consent or approval
of Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its affiliates (as such
term is defined in Rule 405 under the Securities Act) (other than the Initial
Purchaser or subsequent Holders if such subsequent Holders are deemed to be such
affiliates solely by reason of their holdings of such Registrable Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(l) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company with respect to the Registrable
Securities. Except as provided in the Purchase Agreement, there are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein, with respect to the registration rights granted by the
Company with respect to the Registrable Securities. This Agreement supersedes
all prior agreements and undertakings among the parties with respect to such
registration rights.
20
No party hereto shall have any rights, duties or obligations other than those
specifically set forth in this Agreement. In no event will such methods of
distribution take the form of an underwritten offering of the Registrable
Securities without the prior agreement of the Company in accordance with section
9 hereof.
(m) Termination. This Agreement and the obligations of the
parties hereunder shall terminate upon the end of the Effectiveness Period,
except for any liabilities or obligations under Section 6 or 7 hereof and the
obligations to make payments of and provide for Additional Interest under
Section 3 hereof to the extent such Additional Interest accrues prior to the end
of the Effectiveness Period, each of which shall remain in effect in accordance
with its terms.
[Signature Page Follows]
Please confirm that the foregoing correctly sets forth the agreement
among the Company and you.
Very truly yours,
XXXXXX CORPORATION
By: /s/ Xxxx X'Xxxxxx
-------------------------------------
Name: Xxxx X'Xxxxxx
Title:Vice President of Finance and
Chief Financial Officer
Accepted as of
the date first above written:
XXXXX AND COMPANY, LLC
As Initial Purchaser
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director and Head of Equity Capital Markets
CERTIFICATE OF SUBSEQUENT SALE
Computershare Investor Services
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxx Xxxxxxxx
Telecopy No.: (000) 000-0000
XxXxxx Corporation
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx Xxxxx, XX 00000
Attention: Xxxx X'Xxxxxx
Telecopy No.: (000) 000-0000
Re: Sale of Registrable Securities of XxXxxx Corporation (the "Company")
pursuant to the Company's Prospectus, dated, 2006 (the "Prospectus")
Ladies and Gentlemen:
The undersigned hereby certifies, in connection with the
transfer of Registrable Securities of the Company included in the table of
Selling Securityholders in the Prospectus, that the undersigned has sold the
number of the Company's Registrable Securities indicated below pursuant to the
Prospectus and in a manner described under the caption "Plan of Distribution" in
the Prospectus, and that such sale complies with all applicable securities laws,
including, without limitation, the Prospectus delivery requirements of the
Securities Act of 1933, as amended.
Selling Securityholder (the beneficial owner):
----------------------------------
Record Holder (e.g., if held in name of nominee):
-------------------------------
Number of Securities Sold:
------------------------------------------------------
Date of Sale:
-------------------------------------------------------------------
Very truly yours,
--------------------------------------------------------------
Print Full Legal Name of Selling Stockholder or Nominee
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
--------------------------------------------------------
Dated:
------------------------------
