Exhibit 4.1
Execution Copy
XXXXXX ACQUISITION HOLDINGS, INC.
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 7, 1999, among
the investors listed on Schedule I hereto (the "Investors") and Xxxxxx
Acquisition Holdings, Inc., a Delaware corporation (the "Company").
R E C I T A L S
WHEREAS, the Investors will, pursuant to the terms of the Amended
and Restated Agreement and Plan of Merger (the "Merger Agreement"), dated as of
December 7, 1999, by and among Xxxxxx Medical Technology, Inc., the Company,
Xxxxxx Acquisition Corp., Inc. and Warburg, Xxxxxx Equity Partners, L.P.
("Warburg"), acquire shares of (i) Series A Voting Convertible Preferred Stock,
par value $0.01 per share, of the Company (the "Series A Preferred Stock"), and,
solely in the case of Warburg, shares of Series B Non-Voting Convertible
Preferred Stock, par value $.01 per share, of the Company (the "Series B
Preferred Stock" and, with the Series A Preferred Stock, the "Preferred Stock"),
(ii) Common Stock, par value $0.01 per share, of the Company ("Common Stock")
and (iii) warrants to purchase Common Stock ("Warrants"); and
WHEREAS, the shares of Preferred Stock are convertible into
shares of Common Stock; and
WHEREAS, the Company has agreed, as a condition precedent to
Warburg's obligations under the Merger Agreement, to grant the Investors certain
registration rights; and
WHEREAS, the Company and the Investors desire to define the
registration rights of the Investors on the terms and subject to the conditions
herein set forth.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms have the respective
meaning set forth below:
COMMISSION: shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act;
EXCHANGE ACT: shall mean the Securities Exchange Act of 1934, as
amended;
HOLDER: shall mean any holder of Registrable Securities;
INITIAL PUBLIC OFFERING: shall mean the initial public offering
of shares of Common Stock pursuant to a registration under the Securities Act;
INITIATING HOLDER: shall mean a Holder holding the amount of
Registrable Securities required to make a request for registration pursuant
to this Agreement.
PERSON: shall mean an individual, partnership, joint-stock
company, corporation, limited liability company, trust or unincorporated
organization, and a government or agency or political subdivision thereof;
REGISTER, REGISTERED and REGISTRATION: shall mean a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
REGISTRABLE SECURITIES: shall mean (A) shares of Common Stock
issuable upon conversion of the shares of Preferred Stock and upon exercise of
the Warrants, (B) any additional shares of Common Stock acquired by the
Investors, and (C) any additional shares of Common Stock issued as a dividend or
other distribution with respect to, or in exchange for or in replacement of, the
shares of Preferred Stock (whether by way of stock split, stock dividend, or in
connection with a combination of shares, reclassification, recapitalization,
stock exchange, merger, consolidation or otherwise) or Common Stock referred to
in clause (A) or (B);
REGISTRATION EXPENSES: shall mean all expenses incurred by the
Company in compliance with Sections 2(a) and (b) hereof, including, without
limitation, all registration and
filing fees, printing expenses, any reasonable fees and disbursements of
underwriters customarily paid by the issuers or sellers of securities, fees and
disbursements of counsel for the Company, fees and expenses of one counsel for
all the Holders in an amount not to exceed $15,000, blue sky fees and expenses
and the expense of any special audits and cold comfort letters incident to or
required by any such registration (but excluding the compensation of regular
employees of the Company, which shall be paid in any event by the Company);
SECURITY, SECURITIES: shall have the meaning set forth in
Section 2(1) of the Securities Act;
SECURITIES ACT: shall mean the Securities Act of 1933, as
amended; and
SELLING EXPENSES: shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for each of the Holders other than fees and expenses of
one counsel for all the Holders in an amount not to exceed $15,000.
2. REGISTRATION RIGHTS
(a) REQUESTED REGISTRATION.
(i) REQUEST FOR REGISTRATION. If the Company shall receive
from an Initiating Holder, at any time, a written request that the Company
effect any registration with respect to all or a part of the Registrable
Securities, the Company will:
(A) promptly give written notice of the proposed
registration, qualification or compliance to all other Holders;
and
(B) as soon as practicable, use its diligent best efforts to
effect such registration (including, without limitation, the
execution of an undertaking to file post-effective amendments,
appropriate qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable
regulations issued under the Securities Act) as may be so requested
and as would permit or facilitate the sale and distribution of all
or such portion of such Registrable Securities as are specified in
such request, together with all or such portion of the Registrable
Securities of any Holder or Holders joining
in such request as are specified in a written request received by
the Company within 20 business days after written notice from the
Company is given under Section 2(a)(i)(A) above; PROVIDED that the
Company shall not be obligated to effect, or take any action to
effect, any such registration pursuant to this Section 2(a):
(x) In any particular jurisdiction in which the
Company would be required to execute a general consent to service
of process in effecting such registration, qualification or
compliance, unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities
Act or applicable rules or regulations thereunder;
(y) After the Company has effected three (3) such
registrations pursuant to this Section 2(a) and such
registrations have been declared or ordered effective and the
sales of such Registrable Securities shall have closed; or
(z) If the Registrable Securities requested by all
Holders to be registered pursuant to such request do not have an
anticipated aggregate public offering price (before any
underwriting discounts and commissions) of not less than
$15,000,000 (or $30,000,000 if such requested registration is the
Initial Public Offering).
The registration statement filed pursuant to the request of the
Initiating Holders may, subject to the provisions of Section 2(a)(ii) below,
include other securities of the Company which are held by Persons who, by virtue
of agreements with the Company, are entitled to include their securities in any
such registration ("Other Stockholders").
The registration rights set forth in this Section 2 may be assigned,
in whole or in part, to any transferee of Registrable Securities (who shall be
bound by all obligations of this Agreement).
(ii) UNDERWRITING. If the Initiating Holders intend to distribute
the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their request
made pursuant to Section 2(a).
If Other Stockholders request such inclusion, the Holders shall
offer to include the securities of such Other Stockholders in the underwriting
and may condition such offer on their acceptance of the further applicable
provisions of this Section 2. The Holders whose shares are to be included in
such registration and the Company shall (together with all Other Stockholders
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by the Initiating
Holders and reasonably acceptable to the Company. Notwithstanding any other
provision of this Section 2(a), if the representative advises the Holders in
writing that marketing factors require a limitation on the number of shares to
be underwritten, the securities of the Company held by Other Stockholders shall
be excluded from such registration to the extent so required by such limitation.
If, after the exclusion of such shares, further reductions are still required,
the number of shares included in the registration by each Holder shall be
reduced on a pro rata basis (based on the number of shares held by such Holder),
by such minimum number of shares as is necessary to comply with such request. No
Registrable Securities or any other securities excluded from the underwriting by
reason of the underwriter's marketing limitation shall be included in such
registration. If any Other Stockholder who has requested inclusion in such
registration as provided above disapproves of the terms of the underwriting,
such person may elect to withdraw therefrom by written notice to the Company,
the underwriter and the Holders. The securities so withdrawn shall also be
withdrawn from registration. If the underwriter has not limited the number of
Registrable Securities or other securities to be underwritten, the Company and
officers and directors of the Company may include its or their securities for
its or their own account in such registration if the representative so agrees
and if the number of Registrable Securities and other securities which would
otherwise have been included in such registration and underwriting will not
thereby be limited.
Notwithstanding the foregoing, if the Company shall furnish to
Initiating Holders requesting the filing of a registration statement pursuant to
Section 2(a)(i) 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 such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, then the Company
shall have the
right to defer such filing for a period of not more than 90 days after receipt
of the request of the Initiating Holders; PROVIDED, HOWEVER, that the Company
may not utilize this right more than once in any twelve (12) month period.
(b) COMPANY REGISTRATION.
(i) If the Company shall determine to register any of its
equity securities either for its own account or for the account of Other
Stockholders, other than a registration relating solely to employee
benefit plans, or a registration relating solely to a Commission Rule 145
transaction, or a registration on any registration form which does not
permit secondary sales or does not include substantially the same
information as would be required to be included in a registration
statement covering the sale of Registrable Securities, the Company will:
(A) promptly give to each of the Holders a written
notice thereof (which shall include a list of the jurisdictions in
which the Company intends to attempt to qualify such securities under
the applicable blue sky or other state securities laws); and
(B) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified
in a written request or requests, made by the Holders within twenty
(20) days after receipt of the written notice from the Company
described in clause (i) above, except as set forth in Section 2(b)(ii)
below. Such written request may specify all or a part of the Holders'
Registrable Securities.
(ii) UNDERWRITING. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise each of the Holders as a part of the written
notice given pursuant to Section 2(b)(i)(A). In such event, the right of
each of the Holders to registration pursuant to this Section 2(b) shall be
conditioned upon such Holders' participation in such underwriting and the
inclusion of such Holders' Registrable Securities in the underwriting to
the extent provided herein. The Holders whose shares are to be included in
such registration shall (together with the Company and the Other
Stockholders distributing their securities through such underwriting)
enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for underwriting by the Company.
Notwithstanding any other provision of this Section 2(b), if the
representative determines that marketing factors require a limitation on
the number of shares to be underwritten, and (x) if such registration is
the Initial Public Offering, the representative may (subject to the
allocation priority set forth below) exclude from such registration and
underwriting some or all of the Registrable Securities which would
otherwise be underwritten pursuant hereto, and (y) if such registration is
other than the Initial Public Offering, the representative may (subject to
the allocation priority set forth below) limit the number of Registrable
Securities to be included in the registration and underwriting to not less
than twenty five percent (25%) of the shares included therein (based on
the number of shares). The Company shall so advise all holders of
securities requesting registration, and the number of shares of securities
that are entitled to be included in the registration and underwriting
shall be allocated in the following manner: the number of shares of
securities of the Company held by Holders, officers, directors and Other
Stockholders of the Company shall be excluded from such registration and
underwriting to the minimum extent required by such limitation on a pro
rata basis (based on the number of shares held by such Holders, officers,
directors and Other Stockholders); PROVIDED, that if the representative
later determines that such offering would be materially and adversely
affected by the inclusion of such shares, including by reason of the
identity of the holders thereof or that any such holders are employees of
the Company, the representative may exclude all or, in such manner and
number as the representative deems appropriate, a portion of such shares
from such offering. If any of the Holders or any officer, director or
Other Stockholder disapproves of the terms of any such underwriting, he
may elect to withdraw therefrom by written notice to the Company and the
underwriter. Any Registrable Securities or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such
registration.
(c) FORM S-3. Following the Initial Public Offering, the
Company shall use its best efforts to qualify for registration on Form S-3 for
secondary sales. After the Company has qualified for the use of Form S-3, the
Investors shall have the right to request three (3) registrations in the
aggregate on Form S-3 in addition to the rights provided for in Section 2(a)
of this Agreement (such requests shall be in writing and shall state the number
of shares of Registrable Securities to be disposed of and the intended method of
disposition of shares by such holders), subject only to the following:
(i) The Company shall not be required to effect a registration
pursuant to this Section 2(c) unless the Holder or Holders requesting
registration propose to dispose of shares of Registrable Securities having
an aggregate price to the public (before deduction of underwriting
discounts and expenses of sale) of more than $5,000,000.
(ii) The Company shall not be required to effect a
registration pursuant to this Section 2(c) within 180 days of the
effective date of the most recent registration pursuant to this Section 2
in which securities held by the requesting Holder could have been included
for sale or distribution.
(iii) The Company shall not be obligated to effect any
registration pursuant to this Section 2(c) in any particular jurisdiction
in which the Company would be required to execute a general consent to
service of process in effecting such registration, qualification or
compliance, unless the Company is already subject to service in such
jurisdiction and except as may be required by the Securities Act or
applicable rules or regulations thereunder.
(iv) The Company shall not be required to effect a
registration pursuant to this Section 2(c) if the Company shall furnish to
the Holders 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 such registration statement to be
filed and it is therefore essential to defer the filing of such
registration statement. In such event, the Company shall have the right to
defer the filing of the registration statement no more than once during
any twelve (12) month period for a period of not more than ninety (90)
days after receipt of the request of the Holder or Holders under this
Section 2(c)(iii).
The Company shall give written notice to all Holders of the receipt of a
request for registration pursuant to this Section 2(c) and shall allow other
Holders twenty (20) days to provide written notice that such other Holders wish
to participate in the registration, provided that if the registration is for an
underwritten offering, the terms of Section 2(a)(ii) shall apply to all
participants in such offering. Subject to the foregoing, the Company will use
its best efforts to effect promptly the registration of all shares of
Registrable Securities on Form S-3 to the extent requested by the Holder or
Holders thereof for purposes of disposition.
(d) EXPENSES OF REGISTRATION. All Registration Expenses
incurred in connection with any registration, qualification or compliance
pursuant to this Section 2 shall be borne by the Company, and all Selling
Expenses shall be borne by the Holders of the securities so registered pro rata
on the basis of the number of their shares so registered.
(e) REGISTRATION PROCEDURES. In the case of each registration
effected by the Company pursuant to this Section 2, the Company will keep the
Holders, as applicable, advised in writing as to the initiation of each
registration and as to the completion thereof. At its expense, the Company will:
(i) keep such registration effective for a period of one
hundred twenty (120) days or until the Holders, as applicable, have
completed the distribution described in the registration statement
relating thereto, whichever first occurs; provided, however, that (A) such
120-day period shall be extended for a period of time equal to the period
during which the Holders, as applicable, refrain from selling any
securities included in such registration in accordance with the provisions
in Section 2(i) hereof; and (B) in the case of any registration of
Registrable Securities on Form S-3 which are intended to be offered on a
continuous or delayed basis, such 120-day period shall be extended until
all such Registrable Securities are sold, provided that Rule 415, or any
successor rule under the Securities Act, permits an offering on a
continuous or delayed basis, and provided further that applicable rules
under the Securities Act governing the obligation to file a post-effective
amendment permit, in lieu of filing a post-effective amendment which (y)
includes any prospectus required by Section 10(a) of the Securities Act or
(z) reflects facts or events representing a material or fundamental change
in the information set forth in the registration statement, the
incorporation by reference of information required to be included in (y)
and (z) above to be contained in periodic reports filed pursuant to
Section 12 or 15(d) of the Exchange Act in the registration statement;
(ii) furnish such number of prospectuses and other documents
incident thereto as each of the Holders, as applicable, from time to time
may reasonably request;
(iii) notify each Holder of Registrable Securities covered by
such registration at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances then existing; and
(iv) furnish, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being sold
through underwriters or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to
such securities becomes effective, (1) an opinion, dated as of such date,
of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to
underwriters in an underwritten public offering and reasonably
satisfactory to the Holders holding a majority in interest of the
Registrable Securities being included in such registration, addressed to
the underwriters, if any, and to the Holders participating in such
registration and (2) a letter, dated as of such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to
underwriters in an underwritten public offering and reasonably
satisfactory to the Holders holding a majority in interest of the
Registrable Securities being included in such registration, addressed to
the underwriters, if any, and if permitted by applicable accounting
standards, to the Holders participating in such registration.
(f) INDEMNIFICATION.
(i) The Company will indemnify each of the Holders, as
applicable, each of its officers, directors and partners, and each person
controlling each of the Holders, with respect to each registration which
has been effected pursuant to this Section 2, and each underwriter, if
any, and each person who controls any underwriter, against all claims,
losses, damages and liabilities (or actions in
respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any prospectus,
offering circular or other document (including any related registration
statement, notification or the like) incident to any such registration,
qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or any
violation by the Company of the Securities Act or the Exchange Act or any
rule or regulation thereunder applicable to the Company and relating to
action or inaction required of the Company in connection with any such
registration, qualification or compliance, and will reimburse each of the
Holders, each of its officers, directors and partners, and each person
controlling each of the Holders, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses
reasonably incurred in connection with investigating and defending any
such claim, loss, damage, liability or action, provided that the Company
will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on (A) any
untrue statement or omission based upon written information furnished to
the Company by the Holders or underwriter and stated to be specifically
for use therein or (B) any sale of Registrable Securities sold in reliance
upon a defective prospectus, offering circular or other document by the
Holders or underwriter, if the Company advised such Holders or underwriter
in writing not to sell Registrable Securities in reliance upon such
prospectus, offering circular or other document.
(ii) Each of the Holders will, if Registrable Securities held
by it are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each
of its directors and officers and each underwriter, if any, of the
Company's securities covered by such a registration statement, each person
who controls the Company or such underwriter, each other Holder and each
other Holder's officers, directors and partners or affiliates, and each
Person controlling such other Holder, each Other Stockholder and each of
their officers, directors, and partners or affiliates, and each person
controlling such Other Stockholder against all claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus, offering
circular or other document made by such Holder, or any omission (or
alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements by such Holder therein not
misleading, and will reimburse the Company, the other Holders, any
underwriters and such Other Stockholders and their directors, officers,
partners or control persons for any legal or any other expenses reasonably
incurred in connection with investigating or defending any such claim,
loss, damage, liability or action, in each case to the extent, but only to
the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by such
Holder and stated to be specifically for use therein; provided, however,
that the obligations of each of the Holders hereunder shall be limited to
an amount equal to the net proceeds to such Holder of securities sold as
contemplated herein.
(iii) Each party entitled to indemnification under this
Section 2(f) (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party") promptly
after such Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to assume
the defense of any such claim or any litigation resulting therefrom;
provided that counsel for the Indemnifying Party, who shall conduct the
defense of such claim or any litigation resulting therefrom, shall be
approved by the Indemnified Party (whose approval shall not unreasonably
be withheld) and the Indemnified Party may participate in such defense at
such party's expense (unless the Indemnified Party shall have reasonably
concluded that there may be a conflict of interest between the
Indemnifying Party and the Indemnified Party or between the Indemnified
Parties in such action, in which case the fees and expenses of one
separate counsel for the Indemnified Parties shall be at the expense of
the Indemnifying Party), and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 2 except to the
extent the Indemnifying Party is materially prejudiced thereby. No
Indemnifying Party, in the defense of any such claim or litigation shall,
except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release
from all liability in respect to such claim or litigation. Each
Indemnified Party shall furnish such information regarding itself or the
claim in question as an Indemnifying Party may reasonably request in
writing and as shall be reasonably required in connection with the defense
of such claim and litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(f)
is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to herein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party hereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
liability, claim, damage or expense in such proportion as is appropriate
to reflect the relative fault of the Indemnifying Party on the one hand
and of the Indemnified Party on the other in connection with the
statements or omissions which resulted in such loss, liability, claim,
damage or expense, as well as any other relevant equitable considerations.
The relative fault of the Indemnifying Party and of the Indemnified Party
shall be determined by reference to, among other things, whether the
untrue (or alleged untrue) statement of a material fact or the omission
(or alleged omission) to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(v) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with any underwritten
public offering contemplated by this Agreement are in conflict with the
foregoing provisions, the provisions in such underwriting agreement shall
be controlling.
(vi) The foregoing indemnity agreement of the Company and
Holders is subject to the condition that, insofar as they relate to any
loss, claim, liability or damage made in a preliminary prospectus but
eliminated or remedied in the amended prospectus on file with the
Commission at the time the registration statement in
question becomes effective or the amended prospectus filed with the
Commission pursuant to Commission Rule 424(b) (the "Final Prospectus"),
such indemnity or contribution agreement shall not inure to the benefit of
any underwriter or Holder if a copy of the Final Prospectus was furnished
to the underwriter or Holder and was not furnished to the person asserting
the loss, liability, claim or damage at or prior to the time such action
is required by the Securities Act.
(g) INFORMATION BY THE HOLDERS.
(i) Each of the Holders holding securities included in any
registration shall furnish to the Company such information regarding such
Holder and the distribution proposed by such Holder as the Company may
reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to
in this Section 2.
(ii) In the event that, either immediately prior to or
subsequent to the effectiveness of any registration statement, any Holder
shall distribute Registrable Securities to its partners or affiliates,
such Holder shall so advise the Company and provide such information as
shall be necessary to permit an amendment to such registration statement
to provide information with respect to such partners or affiliates, as
selling securityholders. Promptly following receipt of such information,
the Company shall file an appropriate amendment to such registration
statement reflecting the information so provided. Any incremental expense
to the Company resulting from such amendment shall be borne by such
Holder.
(h) RULE 144 REPORTING.
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted securities
to the public without registration, the Company agrees to:
(i) make and keep public information available as those terms
are understood and defined in Rule 144 under the Securities Act ("Rule
144"), at all times from and after ninety (90) days following the
effective date of the first registration under the Securities Act filed by
the Company for an offering of its securities to the general public;
(ii) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company
under the Securities Act and the Exchange Act at any time after it has
become subject to such reporting requirements; and
(iii) so long as the Holder owns any Registrable Securities,
furnish to the Holder upon request, a written statement by the Company as
to its compliance with the reporting requirements of Rule 144 (at any time
from and after ninety (90) days following the effective date of the first
registration statement filed by the Company for an offering of its
securities to the general public), and of the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed as the Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing the Holder to sell any such securities without
registration.
(i) "MARKET STAND-OFF" AGREEMENT. Each of the Holders agrees,
if requested by the Company and an underwriter of equity securities of the
Company, not to sell or otherwise transfer or dispose of any Registrable
Securities held by such Holder during the 180-day period following the effective
date of a registration statement of the Company filed under the Securities Act,
provided that:
(i) such agreement only applies to the Initial Public
Offering; and
(ii) all officers and directors of the Company enter into
similar agreements.
If requested by the underwriters, the Holders shall execute a separate
agreement to the foregoing effect. The Company may impose stop-transfer
instructions with respect to the shares (or securities) subject to the foregoing
restriction until the end of said 180-day period. The provisions of this Section
2(i) shall be binding upon any transferee who acquires Registrable Securities.
(j) TERMINATION. The registration rights set forth in this
Section 2 shall not be available with respect to Registrable Securities of any
Holder if, in the opinion of counsel to the Company, all of the Registrable
Securities then owned by such Holder could be sold in any 90-day period pursuant
to Rule 144 (without giving effect to the provisions of Rule 144(k)).
3. MISCELLANEOUS
(a) DIRECTLY OR INDIRECTLY. Where any provision in this
Agreement refers to action to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such Person.
(b) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within such State.
(c) SECTION HEADINGS. The headings of the sections and
subsections of this Agreement are inserted for convenience only and shall not
be deemed to constitute a part thereof.
(d) NOTICES.
(i) All communications under this Agreement shall be in
writing and shall be delivered by hand or facsimile or mailed by overnight
courier or by registered or certified mail, postage prepaid:
(A) if to the Company, to 0000 Xxxxxxx Xxxx,
Xxxxxxxxx, XX 00000, Attention: President (facsimile:
(000) 000-0000 or at such other address as it may have furnished
in writing to the Investors;
(B) if to the Investors, at the address or facsimile
number listed on Schedule I hereto, or at such other address or
facsimile number as may have been furnished the Company in writing.
(iii) Any notice so addressed shall be deemed to be given: if
delivered by hand or facsimile, on the date of such delivery; if mailed by
courier, on the first business day following the date of such mailing; and
if mailed by registered or certified mail, on the third business day after
the date of such mailing.
(e) REPRODUCTION OF DOCUMENTS. This Agreement and all
documents relating thereto, including, without limitation, any consents, waivers
and modifications which may
hereafter be executed may be reproduced by the Investor by any photographic,
photostatic, microfilm, microcard, miniature photographic or other similar
process and the Investors may destroy any original document so reproduced. The
parties hereto agree and stipulate that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made by the Investors in the regular course of business) and
that any enlargement, facsimile or further reproduction of such reproduction
shall likewise be admissible in evidence.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties.
(g) ENTIRE AGREEMENT; AMENDMENT AND WAIVER. This Agreement
constitutes the entire understanding of the parties hereto and supersedes all
prior understanding among such parties. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, with (and only with) the
written consent of the Company and the Investors.
(h) SEVERABILITY. In the event that any part or parts of this
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not effect the
remaining provisions of this Agreement which shall remain in full force and
effect.
(i) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first set forth above.
XXXXXX ACQUISITION HOLDINGS, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxx
Title: President
INVESTORS:
WARBURG, XXXXXX EQUITY PARTNERS, L.P.
By: Warburg, Xxxxxx & Co.,
General Partner
By: /s/ Xxxxxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxx
Title: Partner
WARBURG, XXXXXX NETHERLANDS EQUITY PARTNERS
I, C.V.
By: Warburg, Xxxxxx & Co.,
General Partner
By: /s/ Xxxxxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxx
Title: Partner
WARBURG, XXXXXX NETHERLANDS EQUITY PARTNERS
II, C.V.
By: Warburg, Xxxxxx & Co.,
General Partner
By: /s/ Xxxxxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxx
Title: Partner
WARBURG, XXXXXX NETHERLANDS EQUITY PARTNERS
III, C.V.
By: Warburg, Xxxxxx & Co.,
General Partner
By: /s/ Xxxxxxxxx X. Xxxxxxxxxx
-----------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxxx
Title: Partner
VERTICAL FUND ASSOCIATES, L.P.
By: Vertical Group, L.P.,General Partner
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: General Partner
CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Investment Officer II
PRINCES GATE INVESTORS, L.P.
PGI INVESTMENTS LIMITED
PGI SWEDEN AB
MARINBEACH UNITED S.A.
By: PG Investors, Inc., as General
Partner or Attorney-in-Fact
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
