Exhibit 8
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EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of this 25th day of November,
2002 (this "Agreement"), among X.X. XXXXXXXXX CORPORATION, a Delaware
corporation (the "Company"), GS Capital Partners 2000, L.P., a Delaware
limited partnership, GS Capital Partners 2000 Offshore, L.P., a Cayman
Islands exempted limited partnership, GS Capital Partners 2000 Employee
Fund 2000, L.P., a Delaware limited partnership, GS Capital Partners 2000
GmbH & Co. Beteiligungs KG, a German limited partnership, and Xxxxxxx Sachs
Direct Investment Fund 2000, L.P. a Delaware limited partnership (each, a
"Purchaser").
RECITALS:
A. Pursuant to the Preferred Stock and Warrant Purchase Agreement,
dated September 21, 2002 (the "Stock Purchase Agreement"), by and between
the Company and the Purchasers, and the Letter Agreement, dated November
25, 2002 (the "Letter Agreement"), by and between the Company, X.X.
Xxxxxxxxx Inc. and the Purchasers, the Purchasers have agreed to purchase,
in the aggregate, $200,000,000 of the Company's Convertible Cumulative
Preferred Stock, par value $1 per share (the "Convertible Cumulative
Preferred Stock") and the Company's Series B-1 Convertible Cumulative
Preferred Stock, par value $1 per share (the "Series B-1 Convertible
Cumulative Preferred Stock").
B. To induce the Purchasers to purchase the Preferred Stock (as
defined below), the Company has agreed to provide the registration rights
set forth in this Agreement.
C. The execution and delivery of this Agreement is a condition to the
obligation of the Purchasers to purchase the Preferred Stock pursuant to
the Stock Purchase Agreement and the Letter Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. As used herein, the following terms shall have the
following respective meanings:
"Affiliate" shall have the meaning set forth in the Stock
Purchase Agreement.
"Certificate of Designations" shall mean the Certificate of
Designations governing the Series B-1 Convertible Cumulative Preferred
Stock; provided, however, that if the Series B-1 Convertible
Cumulative Preferred Stock is exchanged for the Convertible Cumulative
Preferred Stock, in accordance with Section 9(j) of the Certificate of
Designations governing the Series B-1 Convertible Cumulative Preferred
Stock, or if any shares of Convertible Cumulative Preferred Stock are
otherwise issued and outstanding and no shares of Series B-1
Convertible Cumulative Preferred Stock are outstanding, then
"Certificate of Designations" shall mean the Certificate of
Designations governing the Convertible Cumulative Preferred Stock.
"Common Stock" shall mean the common stock, par value $1 per
share, of the Company, including any associated Right, as defined in
and issued pursuant to the Rights Agreement, dated as of October 27,
1998, as amended, by and between the Corporation and The Bank of New
York (as successor to First Chicago Trust Company of New York), as
Rights Agent, and any and all securities of any kind whatsoever of the
Company which are received in exchange for Common Stock or into which
the Common Stock is converted.
"Designated Transferee" shall have the meaning set forth in the
Certificate of Designations.
"Exchange Act" shall mean the Securities Exchange Act of 1934.
"Holders" shall mean the Purchasers, Affiliates of the Purchasers
and any Designated Transferees who are holders of record of shares of
Registrable Shares, and any combination of them, and the term "Holder"
shall mean any such Person.
"Indemnified Parties" shall have the meaning set forth in Section
8(a).
"Issue Date" shall have the meaning set forth in the Certificate
of Designations.
"Letter Agreement" shall have the meaning set forth in the
preamble.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"NYSE" shall mean The New York Stock Exchange.
"Other Holders" shall mean Persons who are holders of record of
equity securities of the Company who subsequent to the date hereof
acquire more than 5% of the outstanding shares of Common Stock
pursuant to a transaction with the Company and to whom the Company has
granted registration rights pursuant to a written agreement.
"Person" shall mean any individual, corporation, association,
partnership, group (as defined in Section 13(d)(3) of the Exchange Act
and the rules and regulations promulgated thereunder), joint venture,
business trust or unincorporated organization, or a government or any
agency or political subdivision thereof.
"Preferred Stock" shall mean the Convertible Cumulative Preferred
Stock, the Series B-1 Convertible Cumulative Preferred Stock, and any
equity securities issued or issuable in exchange for or with respect
to the Convertible Cumulative Preferred Stock or the Series B-1
Convertible Cumulative Preferred Stock by way of a stock dividend,
stock split or combination of shares or in connection with a
reclassification, recapitalization, merger, consolidation or other
reorganization.
"Registrable Shares" shall mean (i) any Common Stock (A) which
may be issued or issuable upon conversion, exchange or redemption of
the Preferred Stock, (B) which may be issued or issuable upon exercise
of the Warrants or (C) issued or distributed in respect of the Common
Stock referred to in clauses (A) or (B) above by way of stock dividend
or stock split or other distribution, recapitalization,
reclassification, merger consolidation or otherwise and (ii) any
Preferred Stock. As to any particular Registrable Share, such
Registrable Share shall cease to be a Registrable Share when (x) it
shall have been sold, transferred or otherwise disposed of or
exchanged pursuant to a registration statement under the Securities
Act or to a Person other than a Designated Transferee pursuant to an
exemption from registration under the Securities Act or (y) it shall
have been distributed to the public pursuant to Rule 144 (or any
successor provision) under the Securities Act.
"Registration Expenses" shall have the meaning set forth in
Section 7(b).
"Requesting Holder" shall have the meaning set forth in Section
2(a).
"SEC" shall mean the United States Securities and Exchange
Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock Purchase Agreement" shall have the meaning set forth in
the preamble.
"Trigger Date" shall have the meaning set forth in the
Certificate of Designations for the Series B-1 Convertible Cumulative
Preferred Stock
"Warrants" shall mean the warrants to purchase shares of Common
Stock issued pursuant to the Stock Purchase Agreement or the Letter
Agreement.
2. Incidental Registrations.
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(a) Right to Include Registrable Shares. Subject to Section 2(b),
each time the Company shall determine to file a registration statement
under the Securities Act in connection with the proposed offer and sale for
cash of any equity securities (other than (i) debt securities which are
convertible into equity securities and (ii) shares of Common Stock (A) to
be issued solely in connection with the acquisition of any Person or the
assets of any Person, (B) issuable upon the exercise of grants under
stock-based incentive plans, or (C) issuable pursuant to employee benefits
plans) either by it or by any holders of its outstanding equity securities
(a "Requesting Holder"), the Company will give prompt written notice of its
determination to each Holder and of such Holder's rights under this Section
2(a), at least 21 days prior to the anticipated filing date of such
registration statement. Upon the written request of each Holder made within
14 days after the receipt of any such notice from the Company (which
request shall specify the Registrable Shares intended to be disposed of by
such Holder), the Company will use its reasonable best efforts to effect
the registration under the Securities Act of all Registrable Shares which
the Company has been so timely requested to register by the Holders
thereof, to the extent required to permit the disposition of the
Registrable Shares so to be registered; provided, that (i) if, at any time
after giving written notice of its intention to register any securities and
prior to the effective date of the registration statement filed in
connection with such registration, the Company or the Requesting Holder, as
applicable, shall determine for any reason not to proceed with the proposed
registration of the securities to be sold by the Company or the Requesting
Holder, as applicable, the Company may, at its election, give written
notice of such determination to each Holder and thereupon shall be relieved
of its obligation to register any Registrable Shares in connection with
such registration (but not from its obligation to pay the Registration
Expenses in connection therewith), and (ii) if such registration involves
an underwritten public offering, all Holders of Registrable Shares
requesting to be included in the Company's registration must sell their
Registrable Shares to the underwriters on the same terms and conditions as
apply to the Company or the Requesting Holder, as applicable, with such
differences, including any with respect to indemnification, as may be
customary or appropriate in combined primary and secondary offerings. If a
registration requested pursuant to this Section 2(a) involves an
underwritten public offering, any Holder of Registrable Shares requesting
to be included in such registration may elect, in writing prior to the
effective date of the registration statement filed in connection with such
registration, not to register such securities in connection with such
registration. No registration effected under this Section 2(a) shall
relieve the Company of its obligations to effect registrations upon request
pursuant to the terms and subject to the conditions of Section 4. Any
Holder shall have the right to withdraw its request for inclusion of its
Registrable Shares in any registration statement pursuant to this Section 2
by giving written notice to the Company of its request to withdraw;
provided, however, that (i) such request must be made in writing prior to
the earlier of the execution of the underwriting agreement or the execution
of the custody agreement with respect to such registration and (ii) such
withdrawal shall be irrevocable and, after making such withdrawal, a Holder
shall no longer have any right to include Registrable Shares in the
registration as to which such withdrawal has been made.
(b) Priority in Incidental Registrations. If a registration
pursuant to this Section 2 involves an underwritten public offering and the
managing underwriter or underwriters in its judgment advises the Company in
writing that, in its opinion, the number of securities which the Company,
the Holders and any other Persons intend to include in such registration
exceeds the largest number of securities which can be sold in such offering
without having an adverse effect on such offering (including the price at
which such securities can be sold), then the Company shall include in such
registration (i) first, if the registration pursuant to this Section 2 was
initiated by Other Holders exercising demand registration rights, 100% of
the securities such Other Holders propose to sell (except to the extent the
terms of such Other Holders' registration rights provide otherwise); (ii)
second, 100% of the securities the Company proposes to sell for its own
account, if any; (iii) third, to the extent that the number of securities
which such Other Holders exercising demand registration rights and the
Company propose to sell is, in the aggregate, less than the number of
securities which the Company has been advised can be sold in such offering
without having the adverse effect referred to above, such number of
Registrable Shares which the Holders have requested to be included in such
registration and such number of securities which Other Holders have
requested to be included in such registration, in each case pursuant to
Section 2(a) or other piggyback or incidental registration rights and
which, in the opinion of such managing underwriter or underwriters, can be
sold without having the adverse effect referred to above, such number of
Registrable Shares and securities to be included on a pro rata basis among
all requesting Holders and Other Holders on the basis of the relative
number of shares of Common Stock beneficially owned (as such term is used
in Rule 13d-3 of the Exchange Act) by such Holders and Other Holders
(provided, that if the number of Registrable Shares requested to be
included in such registration by the Holders pursuant to Section 2(a) and
permitted to be included in such registration by the Holders pursuant to
this Section 2(b) exceeds the number which the Company has been advised can
be sold in such offering without having the adverse effect referred to
above, the number of such Registrable Shares to be included in such
registration by the Holders shall be allocated pro rata among such Holders
on the basis of the relative number of Registrable Shares each such Holder
has requested to be included in such registration); and (iv) fourth, to the
extent that the number of securities which are to be included in such
registration pursuant to clauses (i), (ii) and (iii) of this Section 2(b)
is, in the aggregate, less than the number of securities which the Company
has been advised can be sold in such offering without having the adverse
effect referred to above, such number of other securities requested to be
included in the offering for the account of any other Persons which, in the
opinion of such managing underwriter or underwriters, can be sold without
having the adverse effect referred to above, such number to be allocated
pro rata among all holders of such other securities on the basis of the
relative number of such other securities each other Person has requested to
be included in such registration.
3. Holdback Agreements. (a) If any registration of Registrable Shares
shall be in connection with an underwritten public offering, the Holders
agree not to effect any public sale or distribution (except in connection
with such public offering), of any equity securities of the Company, or of
any security convertible into or exchangeable or exercisable for any equity
security of the Company (in each case, other than as part of such
underwritten public offering), during the 180-day period (or such lesser
period as the managing underwriter or underwriters may permit) beginning on
the effective date of such registration, if, and to the extent, the
managing underwriter or underwriters of any such offering determines such
action is necessary or desirable with respect to such offering, provided
that each Holder has received the written notice required by Section 2(a).
(b) If any registration of Registrable Shares shall be in
connection with any underwritten public offering, the Company agrees not to
effect any public sale or distribution (except in connection with such
public offering) of any of its equity securities or of any security
convertible into or exchangeable or exercisable for any of its equity
securities (in each case other than as part of such underwritten public
offering) during the 180-day period (or such lesser period as the managing
underwriter or underwriters may permit) beginning on the effective date of
such registration, and the Company also agrees to use its reasonable best
efforts to cause each member of the management of the Corporation who holds
any equity security and each other holder of 5% or more of the outstanding
shares of any equity security, or of any security convertible into or
exchangeable or exercisable for any equity security, of the Company
purchased from the Company (at any time other than in a public offering) to
so agree.
4. Registration on Request.
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(a) Request by Holders. From and after the earlier of (i) the
Trigger Date and (ii) November 25, 2003 upon the written request of the
Holder or Holders of at least 25% of the Registrable Shares that the
Company effect the registration under the Securities Act of all or part of
such Holder or Holders' Registrable Shares, and specifying the amount and
intended method of disposition thereof, the Company will promptly give
notice of such requested registration to all other Holders of Registrable
Shares and, as expeditiously as practicable, use its reasonable best
efforts to effect the registration under the Securities Act (including,
without limitation, by means of a shelf registration pursuant to Rule 415
under the Securities Act if so requested, and if the Company is then
eligible to use such registration) of: (i) the Registrable Shares which the
Company has been so requested to register by such Holder or Holders; and
(ii) all other Registrable Shares which the Company has been requested to
register by any other Holder thereof by written request received by the
Company within 14 days after the giving of such written notice by the
Company (which request shall specify the intended method of disposition of
such Registrable Shares); provided, however, that the Company shall not be
required to effect more than one registration during any twelve-month
period pursuant to this Section 4; provided, further, that the Company
shall not be obligated to file a registration statement relating to a
registration request under this Section 4 (other than on Form S-3 or any
similar short-form registration statement) within a period of 180 days
after the effective date of any other registration statement of the Company
other than registration statements on Form S-3 (or any similar short-form
registration statement) or any-successor or similar forms; provided,
further, that in no event shall the Company be required to effect more than
three registrations pursuant to this Section 4; provided, further, that the
Company shall not be required to effect any registration if the Company
determines that the aggregate offering value of all of the shares to be
offered is not reasonably expected to equal at least (i) prior to the
occurrence of a Trigger Date or after the Closing Date (as defined in the
Stock Purchase Agreement), $75 million or (ii) after the occurrence of a
Trigger Date but prior to the Closing Date, $15 million. Promptly after the
expiration of the 14-day period referred to in clause (ii) above, the
Company will notify all the Holders to be included in the registration of
the other Holders and the number of shares of Registrable Shares requested
to be included therein. The Holders initially requesting a registration
pursuant to this Section 4(a) may, at any time prior to the effective date
of the registration statement relating to such registration, revoke such
request by providing a written notice to the Company revoking such request;
provided, however, that, in the event the Holders shall have made a written
request for a demand registration (i) which is subsequently withdrawn by
the Holders after the Company has filed a registration statement with the
SEC in connection therewith but prior to such demand registration being
declared effective by the SEC or (ii) which is not declared effective
solely as a result of the failure of the Holders to take all actions
reasonably required in order to have the registration and the related
registration statement declared effective by the SEC, then, in any such
event, such demand registration shall be counted as a demand registration
for purposes of this Section 4(a).
(b) Registration Statement Form. If any registration requested
pursuant to this Section 4 which is proposed by the Company to be effected
by the filing of a registration statement on Form S-3 (or any successor or
similar short-form registration statement) shall be in connection with an
underwritten public offering, and if the managing underwriter or
underwriters shall advise the Company in writing that, in its opinion, the
use of another form of registration statement is of material importance to
the success of such proposed offering, then such registration shall be
effected on such other form.
(c) Effective Registration Statement. A registration requested
pursuant to this Section 4 will not be deemed to have been effected unless
it has become effective under the Securities Act and, has remained
effective for 180 days or such shorter period as all the Registrable Shares
included in such registration have actually been sold thereunder. In
addition, if within 90 days after it has become effective, the offering of
Registrable Shares pursuant to such registration is interfered with by any
stop order, injunction or other order or requirement of the SEC or other
governmental agency or court, such registration will be deemed not to have
been effected.
(d) Priority in Requested Registrations. If a requested
registration pursuant to this Section 4 involves an underwritten public
offering and the managing underwriter or underwriters in good faith advises
the Company in writing that, in its opinion, the number of securities
requested to be included in such registration (including securities of the
Company which are not Registrable Shares) exceeds the largest number of
securities which can be sold in such offering without having an adverse
effect on such offering (including the price at which such securities can
be sold), then the Company will include in such registration (i) first,
100% of the Registrable Shares requested to be registered pursuant to
Section 4(a) (provided that if the number of Registrable Shares requested
to be registered pursuant to Section 4(a) exceeds the number which the
Company has been advised can be sold in such offering without having the
adverse effect referred to above, the number of such Registrable Shares to
be included in such registration by the Holders shall be allocated pro rata
among such Holders on the basis of the relative number of Registrable
Shares each such Holder has requested to be included in such registration);
(ii) second, to the extent that the number of Registrable Shares requested
to be registered pursuant to Section 4(a) is less than the number of
securities which the Company has been advised can be sold in such offering
without having the adverse effect referred to above, such number of shares
of equity securities the Company requests to be included in such
registration; and (iii) third, to the extent that the number of Registrable
Shares requested to be included in such registration pursuant to Section
4(a) and the securities which the Company proposes to sell for its own
account are, in the aggregate, less than the number of equity securities
which the Company has been advised can be sold in such offering without
having the adverse effect referred to above, such number of other
securities proposed to be sold by any other person which, in the opinion of
such managing underwriter or underwriters, can be sold without having the
adverse effect referred to above (provided that if the number of such
securities of such other Persons requested to be registered exceeds the
number which the Company has been advised can be sold in such offering
without having the adverse effect referred to above, the number of such
securities to be included in such registration pursuant to this Section
4(d) shall be allocated pro rata among all such other Persons on the basis
of the relative number of securities each such Person has requested to be
included in such registration).
(e) Additional Restrictions on Registrations. Not more than once
in any twelve-month period, the Company may postpone for a reasonable
period, not to exceed an aggregate of 90 days, the filing or the
effectiveness of a registration statement pursuant to Section 4(a), if the
Company determines reasonably and in good faith that such filing would have
a material adverse effect on any proposal or plan by the Company to engage
in any significant transaction, provided that in such event the Holders of
Registrable Shares initially requesting such demand registration will be
entitled to withdraw such request and, if such request is withdrawn, such
demand registration will not count as a demand registration for purposes of
Section 4(a). The Company may postpone for up to 45 days the filing or the
effectiveness of a registration statement for a demand registration
pursuant to Section 4(a) for the purpose of preparing audited financial
statements, if such statements are required for the demand registration.
5. Registration Procedures.
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(a) If and whenever the Company is required by the provisions of
Section 2 or Section 4 to use its reasonable best efforts to effect or
cause the registration of Registrable Shares, the Company shall as
expeditiously as practicable:
(i) prepare and, in any event within 60 days after the Company's
receipt of a request for registration, file with the SEC a
registration statement with respect to such Registrable Shares and use
its reasonable best efforts to cause such registration statement to
become effective;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith that the Company determines are necessary to keep
such registration statement effective for a period not in excess of
180 days (provided, that such 180 day period shall not apply to any
such registration statement filed pursuant to Rule 415 under the
Securities Act,) and to comply with the provisions of the Securities
Act, the Exchange Act, and the rules and regulations promulgated
thereunder with respect to the disposition of all the securities
covered by such registration statement during such period in
accordance with the intended methods of disposition by the Holders
thereof set forth in such registration statement; provided, that (A)
before filing a registration statement (including an initial filing)
or prospectus, or any amendments or supplements thereto, the Company
will furnish to one counsel selected by the Holders of a majority of
the Registrable Shares covered by such registration statement copies
of all documents proposed to be filed, and (B) the Company will notify
each Holder of Registrable Shares covered by such registration
statement of any stop order issued or threatened by the SEC, any other
order suspending the use of any preliminary prospectus or of the
suspension of the qualification of the registration statement for
offering or sale in any jurisdiction, and take all reasonable actions
required to prevent the entry of such stop order, other order or
suspension or to remove it if entered;
(iii) furnish, without charge, to each Holder and each
underwriter, if applicable, of Registrable Shares covered by such
registration statement such number of copies of the registration
statement and of each amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary
prospectus and summary prospectus), in conformity with the
requirements of the Securities Act, and such other documents as each
Holder of Registrable Shares covered by such registration statement
may reasonably request in order to facilitate the disposition of the
Registrable Shares owned by such Holder;
(iv) use its reasonable best efforts to register or qualify such
Registrable Shares covered by such registration statement under the
state securities or blue sky laws of such jurisdictions as each Holder
of Registrable Shares covered by such registration statement and, if
applicable, each underwriter, may reasonably request, and do any and
all other acts and things which may be reasonably necessary to
consummate the disposition in such jurisdictions of the Registrable
Shares owned by such Holder, except that the Company shall not for any
purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction where, but for the requirements of
this clause (iv), it would not be obligated to be so qualified;
(v) use its reasonable best efforts to cause such Registrable
Shares covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the Holders thereof to consummate the disposition
of such Registrable Shares;
(vi) if at any time when a prospectus relating to the Registrable
Shares is required to be delivered under the Securities Act any event
shall have occurred as the result of which any such prospectus as then
in effect would include an 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, immediately give
written notice thereof to each Holder and the managing underwriter or
underwriters, if any, of such Registrable Shares and prepare and
furnish to each such Holder a reasonable number of copies of an
amended or supplemental prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such Registrable Shares,
such prospectus shall not include an untrue statement of material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(vii) other than with respect to any Preferred Stock, (A) use its
reasonable best efforts to list such Registrable Shares on any
securities exchange on which similar securities of the Company are
then listed (if any), and enter into customary agreements including a
listing application in customary form, provided that the applicable
listing requirements are satisfied or (B) if no similar securities are
then so listed, use its reasonable best efforts to (1) cause all such
Registrable Shares to be listed on a national securities exchange or
(2) failing that, secure designation of all such Registrable Shares as
a National Association of Securities Dealers, Inc. Automated Quotation
System ("NASDAQ") "national market system security" within the meaning
of Rule 11Aa2-1 under the Exchange Act or (3) failing that, to secure
NASDAQ authorization for shares and, without limiting the generality
of the foregoing, to arrange for at least two market makers to
register as such with respect to such shares with the National
Association of Securities Dealers, Inc.;
(viii) provide a transfer agent and registrar for such
Registrable Shares covered by such registration statement not later
than the effective date of such registration statement;
(ix) enter into such customary agreements (including an
underwriting agreement in customary form) and take such other actions
as each Holder of Registrable Shares being sold or the underwriter or
underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Shares, including
customary indemnification and opinions;
(x) use its reasonable best efforts to obtain (A) a "cold
comfort" letter or letters from the Company's independent public
accountants in customary form and covering matters of the type
customarily covered by "cold comfort" letters and (B) an opinion of
counsel for the Company, as the Holders of at least 25% of the
Registrable Shares being sold or the underwriters retained by such
Holders shall reasonably request;
(xi) make available for inspection by representatives of any
Holder of Registrable Shares covered by such registration statement,
by any underwriter participating in any disposition to be effected
pursuant to such registration statement and by any attorney,
accountant or other agent retained by such Holders or any such
underwriter, all financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries, and
cause all of the Company's and its subsidiaries' officers, directors
and employees to supply all information and respond to all inquiries
reasonably requested by such Holders or any such representative,
underwriter, attorney, accountant or agent in connection with such
registration statement;
(xii) deliver promptly to counsel for the Holders of Registrable
Shares included in such registration statement and each underwriter,
if any, participating in the offering of the Registrable Shares,
copies of all correspondence between the SEC and the Company, its
counsel or auditors and all memoranda relating to discussions with the
SEC or its staff with respect to such registration statement;
(xiii) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the SEC, and make available to
its security holders, as soon as reasonably practicable after the
effective date of the registration statement, an earnings statement
which shall satisfy the provisions of Section 11(a) of the Securities
Act and the rules and regulations promulgated thereunder;
(xiv) other than with respect to any Preferred Stock, use its
reasonable best efforts to obtain and provide a CUSIP number for all
Registrable Shares not later than the effective date of such
registration statement, and provide the applicable transfer agents
with printed certificates for the Registrable Shares which are in a
form eligible for deposit with the Depository Trust Company;
(xv) notify counsel for the Holders of Registrable Shares
included in such registration statement and the managing underwriter
or underwriters, if any, immediately, and confirm the notice in
writing, (A) when the registration statement, or any post-effective
amendment to the registration statement, shall have become effective,
or any supplement to the prospectus or any amendment prospectus shall
have been filed, (B) of the receipt of any comments from the SEC, and
(C) of any request of the SEC to amend the registration statement or
amend or supplement the prospectus or for additional information;
(xvi) other than with respect to any Preferred Stock, cooperate
with each seller of Registrable Shares and each underwriter, if any,
participating in the disposition of such Registrable Shares and their
respective counsel in connection with any filings required to be made
with the NYSE;
(xvii) other than with respect to any Preferred Stock, cause its
officers to use their reasonable best efforts to support the marketing
of the Registrable Shares covered by the registration statement
(including, without limitation, participation in "road shows") taking
into account the Company's business needs; and
(xviii) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of the registration
statement.
(b) Each Holder of Registrable Shares hereby agrees that, upon
receipt of any notice from the Company of the happening of any event of the
type described in Section 5(a)(vi), such Holder shall forthwith discontinue
disposition of such Registrable Shares covered by such registration
statement or related prospectus until such Holder's receipt of the copies
of the supplemental or amended prospectus contemplated by Section 5(a)(vi),
and, if so directed by the Company, such 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
Registrable Shares at the time of receipt of such notice. In the event the
Company shall give any such notice, the period mentioned in Section
5(a)(ii) 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(a)(vi) and including the date when such Holder shall have received the
copies of the supplemental or amended prospectus contemplated by Section
5(a)(vi). If for any other reason the effectiveness of any registration
statement filed pursuant to Section 4 is suspended or interrupted prior to
the expiration of the time period regarding the maintenance of the
effectiveness of such Registration Statement required by Section 5(a)(ii)
so that Registrable Shares may not be sold pursuant thereto, the applicable
time period shall be extended by the number of days equal to the number of
days during the period beginning with the date of such suspension or
interruption to and ending with the date when the sale of Registrable
Shares pursuant to such registration statement may be recommenced.
(c) Each Holder hereby agrees to provide the Company, upon
receipt of its request, with such information about such Holder to enable
the Company to comply with the requirements of the Securities Act and to
execute such certificates as the Company may reasonably request in
connection with such information and otherwise to satisfy any requirements
of law.
(d) Notwithstanding anything in this Agreement to the contrary,
the Company shall control any "road show" or presentations with respect to
any offering of securities of the Company.
6. Underwritten Registrations. Subject to the provisions of Section 2,
Section 3 and Section 4, any of the Registrable Shares covered by a
registration statement may be sold in an underwritten public offering at
the discretion of the Holder thereof. In the case of an underwritten public
offering pursuant to Section 2, the managing underwriter or underwriters
that will administer the offering shall be selected by the Company. In the
case of any underwritten public offering pursuant to Section 4, the
managing underwriter or underwriters that will administer the offering
shall be selected by the Holders of a majority of the Registrable Shares to
be registered, provided, that such underwriters are reasonably satisfactory
to the Company.
7. Expenses.
--------
(a) The fees, costs and expenses of all registrations in
accordance with Sections 2 and Section 4 shall be borne by the Company,
subject to the provisions of Section 7(b); provided, however, that the
Holder shall reimburse the Company for any fees, costs and expenses paid by
the Company for any registration (i) which is subsequently withdrawn by the
Holders after the Company has filed a registration statement with the SEC
in connection therewith but prior to such registration being declared
effective by the SEC or (ii) which is not declared effective solely as a
result of the failure of the Holders to take all actions reasonably
required in order to have the registration and the related registration
statement declared effective by the SEC.
(b) The fees, costs and expenses of registration to be borne as
provided in Section 7(a) shall include, without limitation, all expenses
incident to the Company's performance of or compliance with this Agreement,
including without limitation all SEC and stock exchange registration and
filing fees and expenses, reasonable fees and expenses of any "qualified
independent underwriter" and its counsel as may be required by the rules of
the NASD, fees and expenses of compliance with securities or blue sky laws
(including without limitation reasonable fees and disbursements of counsel
for the underwriters, if any, or for the selling Holders, in connection
with blue sky qualifications of the Registrable Shares), printing expenses
(including expenses of printing certificates for Registrable Shares and
prospectuses), messenger, telephone and delivery expenses, the fees and
expenses incurred in connection with the listing of the securities to be
registered on each securities exchange or national market system on which
similar securities issued by the Company are then listed, fees and
disbursements of counsel for the Company and all independent certified
public accountants (including the expenses of any annual audit, special
audit and "cold comfort" letters required by or incident to such
performance and compliance), the fees and disbursements of underwriters
customarily paid by issuers or sellers of securities (including, without
limitation, expenses relating to "road shows" and other marketing
activities), the reasonable fees of one counsel retained in connection with
each such registration by the Holders of a majority of the Registrable
Shares being registered (such counsel fees not to exceed $35,000 per
registration), the reasonable fees and expenses of any special experts
retained by the Company in connection with such registration, and fees and
expenses of other Persons retained by the Company (but not including any
underwriting discounts or commissions or transfer taxes, if any,
attributable to the sale of Registrable Shares by such Holders)
(collectively, "Registration Expenses").
8. Indemnification.
---------------
(a) Indemnification by the Company. In the event of any
registration of any securities of the Company under the Securities Act
pursuant to Section 2 or Section 4, the Company will, and it hereby does,
indemnify and hold harmless, to the extent permitted by law, each of the
Holders of any Registrable Shares covered by such registration statement,
each affiliate of such Holder and their respective directors and officers
or general and limited partners (and the directors, officers, general and
limited partners, affiliates and controlling Persons thereof), each other
Person who participates as an underwriter in the offering or sale of such
securities and each other Person, if any, who controls such Holder or any
such underwriter within the meaning of the Securities Act (collectively,
the "Indemnified Parties"), against any and all losses, claims, damages or
liabilities, joint or several, and expenses (including any amounts paid in
any settlement effected with the Company's consent) to which any
Indemnified Party may become subject under the Securities Act, state
securities or blue sky laws, common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof, whether or not such Indemnified Party is a party thereto)
or expenses arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered under the Securities
Act, any preliminary, final or summary prospectus contained therein, or any
amendment or supplement thereto, (ii) 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 (iii) any violation by the
Company of any federal, state or common law rule or regulation applicable
to the Company and relating to action required of or inaction by the
Company in connection with any such registration; provided, that the
Company shall not be liable to any Indemnified Party in any such case to
the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon
any untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement or amendment or supplement
thereto or in any such preliminary, final or summary prospectus in reliance
upon and in conformity with written information with respect to such Holder
furnished by such Holder to the Company. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf
of such Holder or any Indemnified Party and shall survive the transfer of
such securities by such Holder.
(b) Indemnification by the Holders and Underwriters. The Company
may require, as a condition to including any Registrable Shares in any
registration statement filed in accordance with Section 2 or Section 4,
that the Company shall have received an undertaking reasonably satisfactory
to it from the Holders of such Registrable Shares or any underwriter to
indemnify and hold harmless (in the same manner and to the same extent as
set forth in Section 8(a)) the Company with respect to any statement or
alleged statement in or omission or alleged omission from such registration
statement, any preliminary, final or summary prospectus contained therein,
or any amendment or supplement, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity
with written information with respect to the Holders of the Registrable
Shares being registered or such underwriter furnished in writing to the
Company by such Holders or such underwriter, or a document incorporated by
reference into any of the foregoing; provided, that no such Holder shall be
liable for any indemnity claims in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Shares. Such indemnity
shall remain in full force and effect regardless of any investigation made
by or on behalf of the Company or any of the Holders, or any of their
respective affiliates, directors, officers or controlling Persons, and
shall survive the transfer of such securities by such Holder.
(c) Notices of Claims, Etc. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement of any
action or proceeding with respect to which a claim for indemnification may
be made pursuant to this Section 8, such indemnified party will, if a claim
in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action; provided,
that the failure of the indemnified party to give notice as provided herein
shall not relieve the indemnifying party of its obligations under this
Section 8, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, the indemnifying party will be
entitled to participate in and to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable
costs of investigation; provided that the indemnified party shall have the
right to employ counsel to represent the indemnified party and its
respective controlling persons, directors, officers, general or limited
partners, employees or agents who may be subject to liability arising out
of any claim in respect of which indemnity may be sought by the indemnified
party against such indemnifying party under this Section 8 if (i) the
employment of such counsel shall have been authorized in writing by such
indemnifying party in connection with the defense of such action, (ii) the
indemnifying party shall not have promptly employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such action
or counsel, or (iii) any indemnified party shall have reasonably concluded
that there may be defenses available to such indemnified party or its
respective controlling persons, directors, officers, employees or agents
which are in conflict with or in addition to those available to the
indemnifying party, and in that event the reasonable fees and expenses of
one firm of separate counsel for the indemnified party shall be paid by the
indemnifying party. No indemnifying party will 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.
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to any indemnified party under Section 8(a)
or Section 8(b) or is insufficient to hold it harmless in respect of any
loss, claim, damage or liability, or any action in respect thereof referred
to therein, then each indemnifying party shall 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
indemnified party and indemnifying party 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 indemnified party and
indemnifying party 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.
Notwithstanding any other provision of this Section 8(d), no Holder of
Registrable Shares shall be required to contribute an amount greater than
the dollar amount of the proceeds received by such Holder with respect to
the sale of any such Registrable Shares. 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.
(e) Other Indemnification. Indemnification similar to that
specified in the preceding subdivisions of this Section 8 (with appropriate
modifications) shall be given by the Company and each Holder of Registrable
Shares with respect to any required registration or other qualification of
securities under any federal or state law or regulation or governmental
authority other than the Securities Act.
(f) Non-Exclusivity. The obligations of the parties under this
Section 8 shall be in addition to any liability which any party may
otherwise have to any other party.
9. Rule 144. The Company covenants that it will use its reasonable
best efforts to file in a timely manner the reports required to be filed by
it under the Securities Act and the Exchange Act and the rules and
regulations promulgated thereunder (or, if the Company is not required to
file such reports, it will, upon the request of any Holder of Registrable
Shares, make publicly available such information), and it will take such
further action as any Holder of Registrable Shares may reasonably request,
all to the extent required from time to time to enable such Holder to sell
Registrable Shares without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (b) any similar rule
or regulation hereafter adopted by the SEC. Upon the request of any Holder
of Registrable Shares, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements.
10. Specific Performance. The Company acknowledges that the rights
granted to the Holders in this Agreement are of a special, unique and
extraordinary character, and that any breach of this Agreement by the
Company could not be compensated for by damages. Accordingly, if the
Company breaches its obligations under this Agreement, the Holders shall be
entitled, in addition to any other remedies that they may have, to
enforcement of this Agreement by a decree of specific performance requiring
the Company to fulfill its obligations under this Agreement.
11. Defaults. A default by any party to this Agreement in such party's
compliance with any of the conditions or covenants hereof or performance of
any of the obligations of such party hereunder shall not constitute a
default by any other party.
12. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given, if delivered
personally, by telecopier or sent by overnight courier as follows:
If to the Purchasers, to:
GS Capital Partners 2000, L.P.
GS Capital Partners 2000 Offshore, L.P.
GS Capital Partners 2000 GmbH & Co. Beteiligungs KG
GS Capital Partners 2000 Employee Fund, X.X.
Xxxxxxx Xxxxx Direct Investment Fund 2000, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xx. Xxxxxx Xxxx
Attention: Xxx Xxxxx, Esq.
with a copy to (which shall not constitute notice):
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Shine
If to the Company, to:
X.X. Xxxxxxxxx Corporation
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxx
with a copy to (which shall not constitute notice):
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
or to such other address or addresses as shall be designated in writing.
All notices shall be effective when received.
13. Entire Agreement; Amendments; Waivers. This Agreement, the Stock
Purchase Agreement, the Letter Agreement and the Certificate of
Designations and the documents described herein and therein or attached or
delivered pursuant hereto or thereto set forth the entire agreement between
the parties hereto with respect to the transactions contemplated by this
Agreement. Any provision of this Agreement may be amended or modified in
whole or in part at any time by an agreement in writing among the Company
and a majority of the Holders executed in the same manner as this
Agreement. No failure on the part of any party to exercise, and no delay in
exercising, any right shall operate as a waiver thereof nor shall any
single or partial exercise by any party of any right preclude any other or
future exercise thereof or the exercise of any other right. No
investigation by the Purchasers of the Company prior to or after the date
hereof shall stop or prevent the Purchasers from exercising any right
hereunder or be deemed to be a waiver of any such right.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original, but
all of which together shall constitute one and the same documents.
15. Governing Law. This Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of New York
applicable to contracts made and to be performed in that State.
16. Successors and Assigns. The Company may not assign any of its
rights or delegate any of its duties under this Agreement without the prior
written consent of a majority of the Holders. Any purported assignment in
violation of this Section 16 shall be void. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto
and their respective successors, personal representatives and permitted
assigns, whether so expressed or not. Subject to Section 17 hereof, if any
Person shall acquire 5% or more of the Registrable Shares outstanding on
the Issue Date, in any manner, whether by operation of law or otherwise,
such transferee shall promptly notify the Company and such Registrable
Shares acquired from such Holder shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable Shares such
Person shall be entitled to receive the benefits of and be conclusively
deemed to have agreed to be bound by and to perform all of the terms and
provisions of this Agreement. If the Company shall so request, any such
successor or assign shall agree in writing to acquire and hold the
Registrable Shares acquired from such Holder subject to all of the terms
hereof. If any Holder shall acquire additional Registrable Shares, such
Registrable Shares shall be subject to all of the terms, and entitled to
all the benefits, of this Agreement.
17. Transfer of Certain Rights. The rights granted to each Holder
pursuant to this Agreement may be transferred by such Holder to any person
or entity who acquires at least 5% of the Registrable Shares outstanding on
the Issue Date; provided, that the Company is given written notice by the
transferee at the time of such transfer stating the name and address of the
transferee and identifying the securities with respect to which such rights
are being assigned. Any transferee (other than a Holder who is a party to
this Agreement) to whom rights hereunder are transferred shall, as a
condition to such transfer, deliver to the Company a written instrument by
which such transferee agrees to be bound by the obligations imposed upon
Holders of Registrable Shares under this Agreement to the same extent as if
such transferee were a party hereto and shall at such time be entitled to
all of the benefits to and subject to all of the obligations of a Holder.
Notwithstanding anything to the contrary herein, any Holder may transfer
rights granted to it hereunder to any Affiliate of such Holder to whom
Registrable Shares are transferred and who delivers to the Company a
written instrument in accordance with the second sentence of this Section
17 and containing the representation that the transfer is exempt from
registration under the Securities Act. In the event of such transfer, such
Affiliate shall be deemed a Holder.
18. No Inconsistent Agreements. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its
securities which is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof, other
than any customary lock-up agreement with the underwriters in connection
with any offering effected hereunder, pursuant to which the Company shall
agree not to register for sale, and the Company shall agree not to sell or
otherwise dispose of, Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, for a specified period (not
to exceed 180 days) following such offering. The Company has not previously
entered into any agreement with respect to its securities granting any
registration rights to any Person. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with any
other agreements to which the Company is a party or by which it is bound.
The Company further agrees that if any other registration rights agreement
entered into after the date of this Agreement with respect to any of its
securities contains terms which are more favorable to, or less restrictive
on, the other party thereto than the terms and conditions contained in this
Agreement (insofar as they are applicable) with respect to the Holders,
then the terms and conditions of this Agreement shall immediately be deemed
to have been amended without further action by the Company or the Holders
so that the Holders shall be entitled to the benefit of any such more
favorable or less restrictive terms or conditions.
19. Jurisdiction. The courts of the State of New York in New York
County and the United States District Court for the Southern District of
New York shall have jurisdiction over the parties with respect to any
dispute or controversy between them arising under or in connection with
this agreement and, by execution and delivery of this agreement, each of
the parties to this Agreement submits to the jurisdiction of those courts,
including but not limited to the in personam and subject matter
jurisdiction of those courts, waives any objections to such jurisdiction on
the grounds of venue or forum non conveniens, the absence of in personam or
subject matter jurisdiction and any similar grounds, consents to service of
process by mail (in accordance with Section 12) or any other manner
permitted by law, and irrevocably agrees to be bound by any judgment
rendered thereby in connection with this Agreement.
20. Captions; References. The captions contained in this Agreement are
for reference purposes only and are not part of this Agreement. Unless
otherwise indicated, all references to Sections and clauses in this
Agreement refer to Sections and clauses of this Agreement.
21. Severability. Should any part of this Agreement for any reason be
declared invalid, such decision shall not affect the validity of any
remaining portion, which remaining portion shall remain in full force and
effect as if this Agreement had been executed with the invalid portion
thereof eliminated, and it is hereby declared the intention of the parties
hereto that they would have executed the remaining portion of this
Agreement without including therein any such part or parts which may, for
any reason, be hereafter declared invalid.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective authorized officers as of the date
aforesaid.
X. X. XXXXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and
General Counsel
GS CAPITAL PARTNERS 2000, L.P.
By: GS Advisors 2000, L.L.C.
Its General Partner
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Its: Vice President
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
By: GS Advisors 2000, L.L.C.
Its General Partner
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Its: Vice President
GS CAPITAL PARTNERS 2000 GMBH & CO.
BETEILIGUNGS KG
By: Xxxxxxx Xxxxx Management GP GmbH
Its General Partner
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Its: Managing Director
GS CAPITAL PARTNERS 2000 EMPLOYEE
FUND, L.P.
By: GS Employee Funds 2000 GP, L.L.C.
Its General Partner
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Its: Vice President
XXXXXXX SACHS DIRECT INVESTMENT FUND 2000,
L.P.
By: GS Employee Funds 2000 GP, L.L.C.
Its General Partner
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Its: Vice President
