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EXHIBIT 10.7
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (the "Agreement"), dated as of March 17,
2000, by and between Altiva Financial Corporation, a Delaware corporation (the
"Company") and United States Trust Company of New York for the benefit of the
holders of the Company's 12% Secured Convertible Senior Notes due 2006 (the "New
Notes").
WHEREAS, pursuant to an exchange offer pursuant to which the Company is
soliciting the tender of its outstanding 12 1/2% Subordinated Notes due 2001 in
exchange for the issuance of New Notes in a discounted principal amount (the
"Exchange Offer"), the Company will issue to the Holders, among other things, up
to $6,428,000 principal amount of New Notes (the "Convertible Notes") which are
convertible into shares of common stock of the Company, par value $.01 (the
"Common Stock"); and
WHEREAS, upon approval by the Company's stockholders, the Convertible
Notes will be convertible into shares of Common Stock at a rate of $1.00 of
principal amount of Convertible Notes for each share of Common Stock issued (the
Common Stock being issuable upon conversion of the Convertible Notes issued
pursuant to the Exchange Offer being referred to herein as the "Securities") ;
and
WHEREAS, as an inducement to Holders to purchase the New Notes, the
Company agreed to register the Securities into which the Convertible Notes are
convertible;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged by
all parties hereto, the parties, intending to be legally obligated, hereby agree
as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
"Act": The Securities Act of 1933, as amended.
"Beneficial Owner Registry": As defined in the Indenture.
"Broker-Dealer": Any broker or dealer registered as such under the
Exchange Act.
"Closing Date": The date of this Agreement.
"Commission" or "SEC": The United States Securities and Exchange
Commission.
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"Convertible Notes": As defined in the preamble hereto.
"DTC": The Depository Trust Company.
"Effectiveness Target Date": As defined in Section 3 hereof.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Holders ": As defined in Section 2(b) hereof.
"Indemnified Holder": As defined in Section 7(a) hereof
"Indenture": The Indenture dated as of February 29, 2000 by and between
the Company and United States Trust Company of New York, as Trustee.
"NASD": National Association of Securities Dealers, Inc.
"New Notes": As defined in the preamble hereto.
"Person": An individual, partnership, corporation, trust or
unincorporated organization, or a government or an agency, authority or
political subdivision thereof.
"Prospectus": The prospectus included in a Resale Registration
Statement, as amended or supplemented, including post-effective amendments,
thereto.
"Registration Default": As defined in Section 4 hereof.
"Resale Registration Statement": As defined in Section 3 hereof.
"Securities": As defined in the preamble hereto.
"Transfer Restricted Securities": Each Security, until the earliest to
occur of (a) the date on which such Security has been effectively registered
under the Act and disposed of in accordance with a Resale Registration Statement
or other applicable registration statement and (b) the date on which such
Security is distributed to the public pursuant to Rule 144 under the Act or may
be sold to the public without compliance with such rule.
"Underwritten Registration" or "Underwritten Offering": An offering in
which securities of the Company are sold to an underwriter for reoffering to the
public pursuant to an effective registration statement filed with the
Commission.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(A) TRANSFER RESTRICTED SECURITIES. The Transfer Restricted Securities
are subject to
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the terms of this Agreement and may be sold in accordance with
the provisions hereof.
(B) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is deemed to be
a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns (i) Convertible Notes, or (ii) Securities prior to (A) the resale of
Securities in accordance with the terms hereof or (B) the time that such
Securities are no longer considered to be Transfer Restricted Securities.
SECTION 3. RESALE REGISTRATION STATEMENT
(A) REGISTRATION. The Company shall cause to be filed with the
Commission promptly after the Closing Date, but in no event later than April 15,
2000, one or more registration statements on Form X-0, X-0 or S-3, or other
applicable form (each a "Resale Registration Statement"), and use its reasonable
best efforts to cause such Resale Registration Statement to be declared
effective by the Commission promptly, but in no event later than June 15, 2000
(the "Effectiveness Target Date"). In connection with the foregoing, the Company
shall (A) file all pre-effective amendments to such Resale Registration
Statement as may be necessary in order to cause such Resale Registration
Statement to become effective, (B) if applicable, file a post-effective
amendment to such Resale Registration Statement pursuant to Rule 430A under the
Securities Act and (C) cause all necessary filings in connection with the
registration and qualification of the Securities to be made under the state
securities and Blue Sky laws of such jurisdictions as are necessary. Subject to
the provisions of Section 5(c) hereof, the Company shall use its reasonable best
efforts to keep such Resale Registration Statement continuously effective,
supplemented and amended to the extent necessary to ensure that it is available
for resales of Securities by the Holders of Transfer Restricted Securities
entitled to the benefit of this Section 3(a), and to ensure that it conforms
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, and all state
securities or Blue Sky laws until the earlier of (i) the sale of all Securities
in accordance with a Resale Registration Statement or (ii) the date on which all
Transfer Restricted Securities may be sold without restriction pursuant to Rule
144 under the Act.
(B) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH THE
SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Resale Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within twenty (20) business days after receipt of a
request therefor, such information as the Company may reasonably request for use
in connection with any Resale Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of Transfer Restricted
Securities shall be entitled to Liquidated Damages pursuant to Section 4 hereof
unless and until such Holder shall have used its reasonable best efforts to
provide all such reasonably requested information. Each Holder as to which any
Resale Registration Statement is being effected agrees to promptly furnish to
the Company any and all information required to be disclosed in order to make
the information previously furnished to the Company by such Holder not
materially misleading.
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SECTION 4. LIQUIDATED DAMAGES
If (a) the Company shall not have filed the Resale Registration
Statement with the Commission on or prior to Xxxxx 00, 0000, (x) the Resale
Registration Statement shall not have been declared effective by the SEC by the
Effectiveness Target Date or (c) the Resale Registration Statement is filed and
declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within ten (10) business
days by a post-effective amendment that cures such failure and that is itself
declared effective within thirty (30) business days (each such event referred to
in clauses (a) through (c), a "Registration Default"), additional cash interest
("Liquidated Damages") shall accrue to each Holder of the Convertible Notes
commencing upon the occurrence of such Registration Default in an amount equal
to $0.05 per week per $1,000 principal amount of the New Notes held by such
Holder during the ninety (90) day period following the occurrence of such
Registration Default. The amount of Liquidated Damages will increase by an
additional $0.05 per week per $1,000 principal amount of the New Notes with
respect to each subsequent 90-day period until all Registration Defaults have
been cured, up to a maximum amount of Liquidated Damages for all Registration
Defaults of $0.50 per week per $1,000 principal amount of New Notes. All accrued
Liquidated Damages shall be paid to Holders by the Company in the same manner as
interest is paid on the New Notes pursuant to the Indenture. Following the cure
of all Registration Defaults relating to any particular Transfer Restricted
Securities, the accrual of Liquidated Damages with respect to such Transfer
Restricted Securities will cease.
All obligations of the Company set forth in the preceding paragraph
that are outstanding with respect to any Transfer Restricted Security at the
time such Security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such Security shall have
been satisfied in full.
SECTION 5. REGISTRATION PROCEDURES
(A) RESALE REGISTRATION STATEMENT. In connection with each Resale
Registration Statement, the Company shall comply with all the provisions of
Section 5(b) below and shall file and use its reasonable best efforts to effect
such registration to permit the sale of the Transfer Restricted Securities in
accordance with the terms of this Agreement.
(B) GENERAL PROVISIONS. In connection with any Resale Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
the Securities by Broker-Dealers), the Company shall:
(i) use its reasonable best efforts to keep such Resale
Registration Statement continuously effective and provide all requisite
financial statements during the period specified in Section 3 of this
Agreement, and upon the occurrence of any event that would cause any
such Resale Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B) not to be
effective and usable
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for resale of Transfer Restricted Securities during the period required
by this Agreement, the Company shall file promptly, and as appropriate,
an amendment or supplement to such Resale Registration Statement, in
the case of clause (A), correcting any such misstatement or omission,
and, in the case of either clause (A) or (B), use its reasonable best
efforts to cause such amendment to be declared effective and such
Resale Registration Statement and the related Prospectus to become
usable for their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Resale Registration Statement as may
be necessary to keep the Resale Registration Statement effective for
the applicable period set forth in Section 3 hereof or such shorter
period as will terminate when all Transfer Restricted Securities
covered by such Resale Registration Statement cease to be Transfer
Restricted Securities; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Act in a timely manner; and reasonably
assist Holders in complying with the provisions of the Act with respect
to the disposition of all Securities covered by such Resale
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof
set forth in such Resale Registration Statement or supplement to the
Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons in writing, to confirm such
advice in writing, (A) when the Prospectus or any Prospectus supplement
or post-effective amendment has been filed, and, with respect to any
Resale Registration Statement or any post-effective amendment thereto,
when the same has become effective, (B) of any request by the
Commission for amendments to the Resale Registration Statement or
amendments or supplements to the Prospectus or for additional
information relating thereto, (C) of the issuance by the Commission of
any stop order or other order or action suspending the effectiveness of
the Resale Registration Statement under the Act or of the suspension by
any state securities or Blue Sky commission of the exemption,
qualification or registration of the Transfer Restricted Securities for
offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, or (D) of the existence
of any fact or the happening of any event that makes any statement of a
material fact made in the Resale Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making
of any additions to or changes in the Resale Registration Statement or
the Prospectus in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. If at any
time the Commission shall issue any stop order or other order or take
other action suspending the effectiveness of the Resale Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the exemption, qualification
or registration of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Company shall use its reasonable best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
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(iv) furnish to each of the selling Holders and each of the
underwriter(s), if any, before filing with the Commission, copies of
any Resale Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Resale Registration Statement
or Prospectus (including all documents incorporated by reference after
the initial filing of such Resale Registration Statement), which
documents will be subject to the review of such Holders and
underwriter(s), if any, for a period of at least five (5) business
days, and the Company will not file any such Resale Registration
Statement or Prospectus or any amendment or supplement to any such
Resale Registration Statement or Prospectus (including all such
documents incorporated by reference) to which a selling Holder of
Transfer Restricted Securities covered by such Resale Registration
Statement or the underwriter(s), if any, shall reasonably object within
five (5) business days after the receipt thereof. A selling Holder or
underwriter, if any, shall be deemed to have reasonably objected to
such filing if such Resale Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission. For purposes of this
Section 5(b)(iv), all materials required to be delivered to a Holder
shall be deemed delivered on the date sent by overnight mail to the
address of such Holder on the Beneficial Owner Registry;
(v) make available at reasonable times and upon reasonable
notice for inspection by a representative of the selling Holders (who
shall have been appointed by the Holders of at least 25% of the New
Notes), any underwriter participating in any disposition pursuant to
such Resale Registration Statement and any attorney or accountant
retained by the Holders of at least 25% of the New Notes or any of the
underwriter(s), all financial and other records, pertinent corporate
documents and properties of the Company and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such representative, underwriter, attorney or
accountant in connection with such Resale Registration Statement
subsequent to the filing thereof and prior to its effectiveness;
(vi) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any Resale Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment, if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included
therein, provided such information is usual and customary in such a
document, including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities,
information with respect to the Transfer Restricted Securities being
sold to such underwriter(s) and any other terms of the offering of the
Transfer Restricted Securities to be sold in such offering, and make
all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(vii) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, one copy of the Resale
Registration Statement, as first filed with the
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Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits;
(viii) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; and the
Company hereby consents to the use of the Prospectus and any amendment
or supplement thereto (other than in those states or jurisdictions in
which the Company has not complied with or satisfied the requirements
of the relevant securities or Blue Sky laws) by each of the selling
Holders and each of the underwriter(s), if any, in connection with the
offering and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto;
(ix) enter into such agreements (including an underwriting
agreement), and make such representations and warranties and take all
such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any Resale Registration Statement contemplated by this
Agreement, all to the extent customary in offerings of the type
contemplated hereby and as may be reasonably requested by any Holder of
Transfer Restricted Securities or underwriter in connection with any
sale or resale pursuant to any Resale Registration Statement
contemplated by this Agreement; and if the registration is an
Underwritten Registration, the Company shall:
(A) furnish to each selling Holder and each
underwriter, if any, in such substance and scope as they may
request and as are customarily made by issuers to underwriters
in primary underwritten offerings, upon the date of the
effectiveness of the Resale Resale Registration Statement:
(1) a certificate, dated the date of
effectiveness of the Resale Resale Registration
Statement, signed by (i) the President or any Vice
President and (ii) a principal financial or
accounting officer of the Company, confirming, as of
the date thereof, that the representations and
warranties of the Company in the underwriting
agreement, if applicable, are true and correct in all
material respects as of such date and such other
matters as such parties may reasonably request;
(2) an opinion, dated the date of
effectiveness of the Resale Registration Statement,
of counsel for the Company to the effect that the
shares covered by the Resale Registration Statement
shall be validly issued and non-assessable, and such
opinion shall include a statement to the effect that
such counsel has participated in conferences with
officers and other representatives of the Company,
representatives of the independent public accountants
for the Company, the underwriters' representatives
and the underwriters' counsel in connection with the
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preparation of such Resale Registration Statement and
the related Prospectus and have considered the
matters required to be stated therein and the
statements contained therein, although such counsel
has not independently verified the accuracy,
completeness or fairness of such statements; and that
such counsel advises that, on the basis of the
foregoing, no facts came to such counsel's attention
that caused such counsel to believe that the
applicable Resale Registration Statement, at the time
such Resale Registration Statement or any
post-effective amendment thereto became effective,
contained an untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading, or that the Prospectus
contained in such Resale Registration Statement, as
of its date, contained an untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein, in
light of the circumstances under which they were
made, not misleading. Without limiting the foregoing,
such counsel may state further that such counsel
assumes no responsibility for, and has not
independently verified, the accuracy, completeness or
fairness of the financial statements, notes and
schedules and other financial data included in any
Resale Registration Statement contemplated by this
Agreement or the related Prospectus; and
(3) a customary comfort letter, dated as of
the date of effectiveness of the Resale Registration
Statement, from the Company's independent public
accountants, in the customary form and covering
matters of the type customarily covered in comfort
letters by underwriters in connection with primary
underwritten offerings;
(B) set forth in full or incorporate by reference in
the Underwriting Agreement, if any, the indemnification
provisions and procedures of Section 7 hereof with respect to
all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as
may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company pursuant to this clause
(ix), if any.
If at any time the representations of the Company contemplated in
clause (A)(1) above cease to be true and correct, the Company shall so advise
the underwriter(s), if any, and each selling Holder promptly and, if requested
by such Persons, shall confirm such advice in writing;
(x) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s) may reasonably request
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and do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted Securities covered
by the Resale Registration Statement; provided that the Company shall not be
required to register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to the service of process
in suits or to taxation, other than as to matters and transactions relating to
the Resale Registration Statement, in any jurisdiction where it is not now so
subject;
(xi) cooperate with the selling Holders and the underwriter(s), if any,
to facilitate the timely preparation and delivery of certificates representing
Transfer Restricted Securities to be sold and not bearing any restrictive
legends; and enable such Securities to be in such denominations and registered
in such names as the Holders or the underwriter(s), if any, may reasonably
request at least two (2) business days prior to any sale of Transfer Restricted
Securities made by such underwriter(s) or selling Holders;
(xii) use its reasonable best efforts to cause the Transfer Restricted
Securities covered by the Resale Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof or the underwriter(s), if any, to
consummate the disposition of such Transfer Restricted Securities, subject to
the provisions contained in paragraph (x) above;
(xiii) if any fact or event contemplated by paragraph (b)(iii)(D) above
shall exist or have occurred, prepare a supplement or post-effective amendment
to the Resale Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not misleading;
(xiv) provide a CUSIP number for all Transfer Restricted Securities not
later than the effective date of the Resale Registration Statement;
(xv) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter that is required to be retained in accordance with the rules and
regulations of the NASD, and use its reasonable best efforts to cause such
filings to become effective and approved by such governmental agencies or
authorities as may be necessary to enable the Holders selling Transfer
Restricted Securities to consummate the disposition of such Transfer Restricted
Securities;
(xvi) otherwise comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders, as soon as
practicable, a consolidated earnings statement meeting the requirements of Rule
158 under the Act (which need not be audited) for the twelve-month period (A)
commencing at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm commitment or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an offering,
beginning with
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the first month of the Company's first fiscal quarter commencing after the
effective date of the Resale Registration Statement;
(xvi) cause all shares of Transfer Restricted Securities covered by the
Resale Registration Statement to be listed on each securities exchange or
market, if applicable, on which similar securities issued by the Company are
then listed; and
(xvii) provide promptly to each Holder upon request each document filed
with the Commission pursuant to the requirements of Section 13 or Section 15 of
the Exchange Act.
(C) BLACKOUT. Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from the Company of the
existence of any fact of the kind described in Section 5(b)(iii)(D) hereof, such
Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the Resale Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus as contemplated by section
5(b)(xiii) hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the Prospectus. If so directed by the Company, each Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current immediately prior to the time of receipt
of such notice. In the event the Company shall give any such notice, the time
period regarding the effectiveness of such Resale Registration Statement or any
post-effective amendment thereto set forth in Section 3 shall be extended by the
number of days during the period from and including the date of the giving of
such notice pursuant to Section 5(b)(iii)(D) hereof to and including the date
when each selling Holder covered by such Resale Registration Statement shall
have received the copies of the supplemented or amended Prospectus as
contemplated by section 5(b)(xiii) hereof or shall have received the Advice,
provided that, notwithstanding the foregoing, such time period may be extended
in any given calendar year only one time for a maximum of (30) business days.
SECTION 6. REGISTRATION EXPENSES
All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless whether a Resale
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made by any Holder
with the NASD (and, if applicable, the fees and expenses of any "qualified
independent underwriter" and its counsel that may be required by the NASD));
(ii) all fees and expenses of compliance with federal securities, foreign
securities and state Blue Sky or securities laws; (iii) all expenses of printing
(including the printing of Prospectuses and new certificates representing
Securities), messenger and delivery services and telephone expenses incurred by
the Company; (iv) all fees and disbursements of counsel for the Company; (v) all
application and filing fees in connection with listing the Securities on a
national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company (including the
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expenses of any special audit and comfort letters required by or incident to
such performance).
The Company will, in any event, bear its internal expense (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit, all
trustee and rating agency fees and charges and the fees and expenses of any
person, including special experts, retained by the Company.
Each Holder shall pay all expenses of its counsel, underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Transfer Restricted Securities pursuant to a Resale
Registration Statement.
SECTION 7. INDEMNIFICATION
(a) The Company shall indemnify and hold harmless (i) each Holder, (ii)
each person, if any, who controls (within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act) any Holder (any of the persons referred to in
this clause (ii) being hereinafter referred to as a "Controlling Person") and
(iii) the respective officers, directors, partners, employees, representatives
and agents of any Holder or any Controlling Person (any person referred to in
clause (i), (ii) or (iii) may hereinafter be referred to as an "Indemnified
Holder"), to the fullest extent lawful, from and against any and all losses,
claims, damages, liabilities, judgments, actions and expenses, joint or several
(including without limitation, reimbursement of all reasonable costs of
investigating, preparing, pursuing or defending any claim or action,
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and charges of counsel directly or
indirectly caused by, related to, based upon, arising out of or in connection
with any untrue statement or alleged untrue statement of a material fact
contained in (A) any Resale Registration Statement or Prospectus (or any
amendment or supplement thereto) or (B) any state securities or Blue Sky
application or other document prepared or executed by the Company (or based upon
any information furnished by the Company) for the purpose of qualifying any of
the Securities under the securities or Blue Sky laws of any state or other
jurisdiction (any such application, document or information hereinafter is
referred to as a "Blue Sky Application") or any omission or alleged omission to
state in any Resale Registration Statement or Prospectus (or any amendment or
supplement thereto) or in any Blue Sky Application a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is made in
reliance upon and in conformity with information relating to any of the Holders
furnished in writing to the Company by any of the Holders or counsel or agents
of Holders expressly for use therein. The foregoing indemnification is in
addition to any liability which the Company may otherwise have to any
Indemnified Holder.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless (i) the Company, (ii) each person who controls (within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act) the Company and
(iii) the respective officers, directors,
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partners, employees, representatives and agents of the Company and any such
controlling person to the same extent as the foregoing indemnity from the
Company to each of the Indemnified Holders, but only with respect to claims and
actions based on information relating to such Holder furnished in writing by
such Holder expressly for use in any Resale Registration Statement. The
foregoing indemnification is in addition to any liability which any Holder may
otherwise have to any of the foregoing indemnified persons.
(c) 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 (except to the extent
so provided in any such other obligation). If any such claim or action shall be
brought against an indemnified party, and it shall have notified the
indemnifying 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 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
the indemnified party shall have the right to employ separate counsel to
represent jointly the indemnified party and those other Indemnified Holders and
their respective officers, employees and controlling persons who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by Indemnified Holders against the indemnifying party under this Section
7, 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 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. In no event shall the indemnifying parties
be liable for the fees and expenses of more than one counsel (in addition to
local counsel). Each indemnified party, as a condition of the indemnity
agreements contained in this Section 7, shall use its reasonable best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall (i) without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to
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any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding or (ii) be liable for any settlement of any such action,
compromise of any action or any judgment with respect to any action effected
without its written consent, but if settled with its written consent or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party, to the extent set
forth herein, from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 7 shall for any
reason be unavailable to (except for a reason expressly provided herein) or
insufficient to hold harmless an indemnified party under Section 7(a) or 7(b) in
respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, 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, in such proportion as shall be appropriate to reflect
the relative fault of the Company on the one hand and the Holders on the other
hand with respect to the 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 fault shall be determined by
reference to whether the untrue or alleged statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Holders, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Holders agree that it would not
be just and equitable if contributions pursuant to this Section 7(d) 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(d) shall be deemed to include, for purposes of this Section 7(d), 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(d), no Indemnified Holder shall be required to
contribute any amount in excess of the amount by which proceeds received by such
Indemnified Holder from an offering of the Securities exceeds the amount of any
damages which such Indemnified 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
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Indemnified Holders'
obligations to contribute as provided in this Section 7(d) are several and not
joint.
SECTION 8. RULE 144 AND RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to use its reasonable best efforts to
make and keep public
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information available as is required by Rules 144 and 144A under the Act to
permit sales of Transfer Restricted Securities pursuant to such rules,
including, without limitation, complying with the requirements of Rule
144A(d)(4), and to furnish to each Holder promptly upon request a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144 and Rule 144A under the Act.
SECTION 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements provided by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 10. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Resale
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such 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 of the
Transfer Restricted Securities included in such offering; provided, that such
investment bankers and managers must be reasonably satisfactory to the Company.
SECTION 11. MISCELLANEOUS
(A) REMEDIES. The Company agrees that monetary damages (including the
Liquidated Damages contemplated hereby) would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(B) NO INCONSISTENT AGREEMENTS. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way breach or conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
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(C) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding Transfer Restricted
Securities. Notwithstanding the foregoing, a waiver or consent to departure from
the provisions hereof that relates exclusively to the rights of Holders whose
Transfer Restricted Securities are being resold pursuant to the Resale
Registration Statement and that does not affect directly or indirectly the
rights of other Holders whose Transfer Restricted Securities are not reselling
pursuant to such Resale Registration Statement may be given by the Holders of a
majority of the outstanding Transfer Restricted Securities being resold pursuant
to such Resale Registration Statement.
(D) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class or
certified mail, telex, telecopier or reliable overnight delivery service:
(i) if to a Holder, at the address of the Holder set forth in
the Beneficial Owner Registry; and
(ii) if to the Company:
Altiva Financial Corporation
Sixth Floor
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
With a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Xx., Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five (5) business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if sent via a reliable overnight delivery service.
(E) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities.
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(F) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, by the parties hereto, 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.
(G) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(H) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(I) SEVERABILITY. In the event that any one or more of the provisions
contained herein or the application thereof, in any circumstances, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(J) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter hereof. 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 Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ALTIVA FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chairman and Chief Executive Officer
UNITED STATES TRUST COMPANY OF NEW YORK
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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