Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of September 30, 2002, by and among Rural/Metro Corporation, a
Delaware corporation (the "COMPANY"), and the Persons listed on the signature
pages hereto (each a "HOLDER" and collectively, the "HOLDERS").
RECITALS
A. The Holders are acquiring up to an aggregate of 211,549 shares of
Series B-1 Voting Preferred Stock, Series B-2 Non-Voting Preferred Stock, and
Series B-3 Preferred Stock, par value $.01 per share of the Company
(collectively, the "SERIES B PREFERRED STOCK"), which shares are convertible
into shares of Common Stock of the Company, par value $.01 per share (the
"COMMON STOCK"), pursuant to the terms of that certain Second Amended and
Restated Credit Agreement dated as of the date hereof by and among the Company
and the lenders party thereto (the "CREDIT AGREEMENT").
B. It is a condition to the obligations of the lenders party to the
Credit Agreement that this Agreement be executed by the parties hereto in order
to provide the Holders with certain registration rights with respect to the
Series B Preferred Stock and the Common Stock issuable upon conversion of the
Series B Preferred Stock, and the parties are willing to execute this Agreement
and to be bound by the provisions hereof.
AGREEMENT
The parties hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"COMMISSION" means the Securities and Exchange Commission and any
successor agency of the United States federal government administering the
Securities Act or the Exchange Act.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules, regulations and interpretations thereunder.
"HOLDER" means the Person who is the then record owner of Registrable
Securities which have not been sold to the public.
"PERSON" means a corporation, an association, a partnership, a limited
liability company, a trust, an organization, a business, an individual, or a
government or political agency or other entity.
"REGISTRABLE SECURITIES" means (i) all of the shares of Common Stock
issuable upon conversion of the Series B Preferred Stock owned by the Holders;
(ii) any Common Stock issued in respect of the shares described in clause (i)
upon any stock split, stock dividend, recapitalization or other similar event or
otherwise on account of or in exchange for such securities; (iii) all of the
shares of Series B Preferred Stock owned or hereafter acquired by the Holders;
and (iv) any Series B Preferred Stock issued in respect of the shares described
in clause (iii) upon any stock split, stock dividend, recapitalization or other
similar event or otherwise on account of or in exchange for such securities.
Registrable Securities will cease to be Registrable Securities when (a) they
have been registered under the Securities Act, the registration statement in
connection therewith has been declared effective, and they have been disposed of
pursuant to such effective registration statement, (b) they are distributed to
the public pursuant to Rule 144 (or any similar provision then in force) under
the Securities Act, (c) the Holder thereof may sell all of such Holder's
Registrable Securities without restriction pursuant to Rule 144(k) promulgated
under the Securities Act, or (d) they have been otherwise transferred and new
certificates or other evidences of ownership for them (not bearing a legend to
the effect that such securities have not been registered under the Securities
Act and may not be sold or transferred in the absence of registration or an
exemption therefrom under the Securities Act, and not subject to any stop
transfer order or other restriction on transfer) have been delivered by or on
behalf of the Company, and they may be resold without subsequent registration
under the Securities Act.
"REGISTRATION EXPENSES" means all expenses incurred by the Company in
compliance with Sections 2, 3 or 4 hereof, including, without limitation, all
registration and filing fees, printing expenses, transfer taxes, accounting fees
and expenses, fees and disbursements of counsel for the Company, blue sky fees
and expenses, reasonable fees and disbursements of counsel for the selling
Holders, and the expense of any special audits incident to or required by any
such registration, and excluding underwriting discounts and commissions.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, and the rules, regulations and interpretations thereunder.
"SELLING EXPENSES" means all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities.
The term "REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of
effectiveness of such registration statement.
2. REQUESTED REGISTRATIONS.
(a) If, on any two (2) occasions after the date hereof, the Company
shall receive from the Holders of at least twenty percent (20%) of the
Registrable Securities (the "INITIATING HOLDERS") a written request that the
Company effect the registration of at least 20% of the outstanding Registrable
Securities (or a lesser percent if anticipated gross proceeds of such offering
would equal at least $1,000,000), the Company will:
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(i) promptly give written notice of the proposed registration to
all other Holders; and
(ii) as soon as practicable, use its best efforts to effect such
registration as may be so requested and as would permit or facilitate
the sale and distribution of such portion of such Registrable
Securities as are specified in such request, together with such
portion of the Registrable Securities of any Holder or Holders joining
in such request as are specified in a written request given within
fifteen (15) days after receipt of the Company's notice pursuant to
this Section 2(a)(i). If the offering is an underwritten offering and
the underwriter managing the offering advises the Holders who have
requested inclusion of their Registrable Securities in such
registration that marketing considerations require a limitation on the
number of shares offered, such limitation shall be imposed PRO RATA
among such Holders who requested inclusion of Registrable Securities
in such registration according to the number of Registrable Securities
each such Holder requested to be included in such registration. Except
as otherwise provided herein, no registration initiated by Holders
hereunder shall count as a registration under this Section 2 unless
and until it shall have been declared effective and unless no such
limitation is imposed on Holders who requested inclusion of
Registrable Securities.
(b) SELECTION OF UNDERWRITER. The underwriter of any underwriting
requested under this Section 2, if any, shall be selected by the Holders holding
a majority of the Registrable Securities.
(c) The Company shall not be required to effect a registration
pursuant to this Section 2:
(i) after the Company has effected two (2) registrations pursuant
to this Section 2, and such registrations have been (A) declared or
ordered effective and all of the Registrable Securities registered
thereunder have been sold or the registration statement has been
effective for at least 180 days; or (B) withdrawn at the request of
the Holders of a majority of the Registrable Securities to be
registered other than a withdrawal due to a material adverse change in
the assets, condition, business, prospects or affairs of the Company
(financially or otherwise) and the Holders do not pay for the
reasonable expenses for such withdrawn registration statement;
(ii) during the 150-day period commencing on the date of any
other underwritten public offering of the Company; or
(iii) if the Company shall furnish to such Holders a certificate
signed by the President of the Company within thirty (30) days of the
written notice from the Initiating Holders requesting registration of
the Registrable Securities, stating that in the good faith judgment of
the Board of Directors of the Company it would be seriously
detrimental to the Company and its stockholders for such Registration
Statement to be filed at the date filing would be required, in which
case the Company shall have a period of not more than ninety (90) days
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from the date of receipt of notice from the Initiating Holders within
which to file such Registration Statement; provided that the Company
shall not be entitled to issue such a certificate within 365 days
after the expiration of any such 90-day (or shorter) period.
Notwithstanding anything to the contrary herein, no registration shall
be deemed to have been effected pursuant to this Section 2 if: (i) such
registration statement, after it has become effective, is the subject of any
stop order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason not primarily attributable to the
selling Holders; or (ii) the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such
registration statement are not satisfied, other than by reason of a failure on
the part of the selling Holders.
3. COMPANY REGISTRATION.
(a) "PIGGY BACK" REGISTRATIONS. If the Company proposes to register
(including for this purpose a registration effected by the Company for its
stockholders) any of its stock or other securities under the Securities Act in
connection with the public offering of such securities, on a registration form
that would also allow the registration of the Registrable Securities (other than
a registration relating solely to the sale of securities to participants in a
Company stock plan, a registration relating to corporate reorganization or other
transaction under Rule 145 of the Securities Act, or a registration in which the
only Common Stock being registered is Common Stock issuable upon conversion of
debt securities which are also being registered), the Company shall:
(i) promptly give to each Holder written notice of the Company
registration (which shall include the number of shares the Company or
other holders propose to register and, if known, the name of the
proposed underwriter); and
(ii) use its best efforts to include in such registration all the
Registrable Securities specified in a written request or requests,
made by any Holder within fifteen (15) days after the date of receipt
of the written notice from the Company described in clause (i) above.
(b) RIGHT TO TERMINATE REGISTRATION. The Company shall have the right
to terminate or withdraw any registration initiated by it under this Section 3
prior to the effectiveness of such registration whether or not any Holder has
elected to include securities in such registration. The expenses of such
withdrawn registration shall be borne by the Company in accordance with Section
5 hereof.
(c) UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under this Section 3 to include any of the Holders'
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters) and to enter into any
underwriting agreement in customary form with an underwriter or underwriters
selected by the Company, and then only in such quantity as the underwriters
determine will not jeopardize the success of the offering by the Company. If the
total amount of securities, including Registrable Securities, requested to be
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included in such offering exceeds the amount of securities that the underwriters
determine is compatible with the success of the offering, then the Registrable
Securities of the Holders, the securities of the Company and the securities held
by any other stockholders distributing their securities through such
underwriting shall be excluded from the underwriting by reason of the
underwriter's marketing limitation to the extent so required by such limitation
as follows: (a) first, the securities held by such other stockholders
distributing their securities through such underwriting shall be excluded, (b)
if after all securities held by such other stockholders have been excluded and
additional shares are required to be excluded, Registrable Securities of the
Holders shall be excluded in a manner such that the number of any Registrable
Securities that may be included by such Holders are allocated pro rata based
upon the amount requested by each such Holder to be included in such offering,
and (c) if after all securities held by the Holders and such other stockholders
have been excluded and additional shares are required to be excluded, securities
of the Company shall be excluded; provided, however, that the Company shall use
its good faith best efforts to include shares of Registrable Securities in an
amount not less than forty percent (40%) of any public offering.
4. REGISTRATION ON FORM S-3. If the Company is entitled as a registrant to
use Form S-3 and the Holders of Registrable Securities request that the Company
effect a registration on Form S-3 for shares having an aggregate sale price to
the public of at least $1,000,000 (net of underwriting discounts and
commissions), the Company shall use its best efforts to register such securities
on such form under the Securities Act as expeditiously as possible. All such
requests for registration on Form S-3 by the Holders of Registrable Securities
shall be in writing and shall state the number of shares of Registrable
Securities to be disposed of and the intended methods of disposition of such
shares by such Holders; PROVIDED that the Company shall not be obligated to
effect a registration pursuant to this Section 4 if the Company certifies in
good faith that it would not be in the best interests of the Company to file a
Form S-3, in which case the Company may defer the filing on Form S-3 for up to
ninety (90) days once during any twelve (12) month period. The Company will not
be required to register shares in any jurisdiction in which the Company would be
required to execute a general consent to service of process to effect such
registration. The Company shall not be required to effect any registration,
qualification or compliance pursuant to this Section 4 if the Company has,
within the twelve (12) month period preceding the date of such request, already
effected two registrations for the Holders in compliance with the provisions of
Sections 2, 3 or 4.
5. EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Sections 2, 3 and 4 (exclusive of Selling Expenses), shall be paid by the
Company. The Company shall reimburse the reasonable expenses of one counsel for
the Holders in any registration pursuant to Sections 2, 3 and 4.
6. REGISTRATION PROCEDURES. In the case of each registration effected by
the Company pursuant to this Agreement, the Company will keep each selling
Holder of Registrable Securities included in such registration advised in
writing as to the initiation of each registration and as to the completion
thereof. At its expense, the Company will do the following for the benefit of
such selling Holders:
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(a) keep such registration effective for a period of one hundred
eighty (180) days or until the Holder or Holders have completed the distribution
described in the registration statement relating thereto, whichever first
occurs, and promptly amend or supplement such registration statement and the
prospectus contained therein from time to time to the extent necessary to comply
with the Securities Act and applicable state securities laws;
(b) use its best efforts to register or qualify the Registrable
Securities covered by such registration under the applicable securities or "blue
sky" laws of such jurisdictions as the selling Holders may reasonably request;
PROVIDED that the Company shall not be obligated to qualify to do business in
any jurisdiction where it is not then so qualified or otherwise required to be
so qualified or to take any action which would subject it to the service of
process in suits other than those arising out of such registration;
(c) furnish such number of prospectuses and other documents incident
thereto as a Holder from time to time may reasonably request;
(d) in connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 2 hereof, the Company will
enter into any underwriting agreement reasonably necessary to effect the offer
and sale of the Series B Preferred Stock and/ or the Common Stock, PROVIDED such
underwriting agreement contains customary underwriting provisions and is entered
into by the Holders participating in such registration and PROVIDED FURTHER
that, if the underwriter so requests, the underwriting agreement will contain
customary contribution provisions on the part of the Company;
(e) subject to execution of reasonable confidentiality agreements and
agreements reasonably required to ensure compliance with securities laws, make
available to any underwriter participating in any disposition pursuant to a
registration statement, and any attorney, accountant or other agent or
representative retained by any such selling Holder(s) or underwriter
(collectively, the "Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company, as shall be reasonably
necessary to enable them to exercise their due diligence responsibilities, and
cause the Company's officers, directors and employees to supply all information
requested by any such Inspector in connection with such registration statement;
(f) to the extent then permitted under applicable professional
guidelines and standards, obtain a comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by comfort letters and an opinion from the Company's counsel
in customary form, covering such matters of the type customarily covered in a
public issuance of securities, in each case addressed to the Holders, and
provide copies thereof to the Holders; and
(g) advise such Holders or their attorney-in-fact, promptly after it
shall receive notice or obtain knowledge thereof, of any event that would
require the Company to amend the prospectus or the issuance of any stop order by
the Commission suspending the effectiveness of such registration statement or
the initiation or threatening of any proceeding for such purpose and promptly
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use its best efforts to amend the prospectus or prevent the issuance of any stop
order or to obtain its withdrawal if such stop order should be issued.
7. INDEMNIFICATION.
(a) The Company will, and hereby does, indemnify each Holder, each of
its affiliates, officers, directors, members and partners, and each Person
controlling such Holder within the meaning of the Securities Act, with respect
to which registration, qualification or compliance has been effected pursuant to
this Agreement, and each underwriter, if any, and each Person who controls such
underwriter within the meaning of the Securities Act, against all claims,
losses, damages, and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any prospectus, offering circular, or other document
(including any related registration statement, notification or the like)
incident to any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which such statements were made, or any
violation by the Company of the Securities Act or the Exchange Act or securities
act of any state or any rule or regulation thereunder applicable to the Company
and relating to action or inaction required of the Company in connection with
any such registration, qualification or compliance, and will reimburse each such
Holder, each of its officers, directors, members and partners, and each Person
controlling such Holder, each such underwriter and each Person who controls any
such underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating and defending any such claim, loss, damage,
liability or action, whether or not resulting in any liability, provided,
however, that the indemnity agreement contained in this subsection 7(a) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
penalty, liability, or action, if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld), nor
shall the Company be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission based upon written information furnished to the Company by
such Holder or underwriter and stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers and each underwriter, if any, of the Company's securities covered by
such a registration statement, each Person who controls the Company or such
underwriter within the meaning of the Securities Act and the rules and
regulations thereunder, each other such Holder and each of their officers,
directors, members and partners, and each Person controlling such Holder,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement of a material fact
contained in any such registration statement, prospectus, offering circular or
other document, or any omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which such statements were made, and will
reimburse the Company and such Holder's directors, officers, members, partners,
persons, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, whether or not resulting in liability,
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in each case to the extent, but only to the extent, that such untrue statement
or omission is made in such registration statement, prospectus, offering
circular or other document in reliance upon and in conformity with written
information furnished to the Company by such Holder and stated to be
specifically for use therein with such Holder's explicit written consent;
provided, HOWEVER, that the obligations of each Holder hereunder shall be
limited to an amount equal to the net proceeds received by such Holder upon sale
of such Holder's securities.
(c) Each party entitled to indemnification under this Section 7 (the
"INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "INDEMNIFYING PARTY") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, but the
failure of any Indemnified Party to give such notice shall not relieve the
Indemnifying Party of its obligations under this Section 7 (except and to the
extent the Indemnifying Party has been prejudiced as a consequence thereof). The
Indemnifying Party will be entitled to participate in, and to the extent that it
may elect by written notice delivered to the Indemnified Party promptly after
receiving the aforesaid notice from such Indemnified Party, at its expense to
assume, the defense of any such claim or any litigation resulting therefrom,
with counsel reasonably satisfactory to such Indemnified Party, PROVIDED that
the Indemnified Party may participate in such defense at its expense,
notwithstanding the assumption of such defense by the Indemnifying Party, and
PROVIDED FURTHER, that if the defendants in any such action shall include both
the Indemnified Party and the Indemnifying Party and the Indemnified Party shall
have reasonably concluded that there may be legal defenses available to it
and/or other Indemnified Parties which are different from or additional to those
available to the Indemnifying Party, the Indemnified Party or Parties shall have
the right to select separate counsel to assert such legal defenses and to
otherwise participate in the defense of such action on behalf of such
Indemnified Party or Parties and the fees and expenses of such counsel shall be
paid by the Indemnifying Party. No Indemnifying Party, in the defense of any
such claim or litigation, shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. Each Indemnified Party shall (i) furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom and
(ii) shall reasonably assist the Indemnifying Party in any such defense,
provided that the Indemnified Party shall not be required to expend its funds in
connection with such assistance.
(d) If the indemnification provided for in Sections 7(a) or 7(b) is
unavailable or insufficient to hold harmless an Indemnified Party under such
subsections in respect of any losses, claims, damages or liabilities or actions
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 losses, claims, damages,
liabilities or actions in such proportion as appropriate to reflect the relative
fault of the Company, on the one hand, and the sellers of such Registrable
Securities, on the other, in connection with the statements or omissions, which
resulted in such losses, claims, damages, liabilities or actions as well as any
other relevant equitable considerations, including the failure to give any
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notice under Section 7(c); PROVIDED, HOWEVER, that for purposes of determining
an Indemnifying Party's obligation to contribute to any amounts paid or payable
under this Section 7, the relative fault of the sellers of such Registrable
Securities shall be determined on a seller by seller basis. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact relates to information supplied by
the Company on the one hand, or the sellers of such Registrable Securities, on a
seller by seller basis, on the other hand, and to the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the sellers of Registrable Securities
agree that it would not be just and equitable if contributions pursuant to this
paragraph were determined by PRO RATA allocation or by any other method of
allocation which did not take account of the equitable considerations referred
to above in this subsection. The amount paid or payable by an Indemnified Party
as a result of the losses, claims, damages, liabilities, or action in respect
thereof, referred to above in this paragraph, shall be deemed to include 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 subsection, the sellers of such
Registrable Securities shall not be required to contribute any amount in excess
of the amount, if any, by which the net proceeds received by such sellers for
the Common Stock sold by each of them under such registration statement exceeds
the amount of any damages which they would have otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission specifically
provided by such sellers for purposes of registration. No Person guilty of
fraudulent misrepresentations (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who is not
guilty of such fraudulent misrepresentation.
(e) No Holder shall be required to participate in a registration
pursuant to which it would be required to execute an underwriting agreement in
connection with a registration effected under Section 2, 3 or 4 which imposes
indemnification or contribution obligations on such Holder more onerous than
those imposed hereunder; PROVIDED, HOWEVER, that the Company shall not be deemed
to breach the provisions of Section 2, 3 or 4 if a Holder is not permitted to
participate in a registration on account of his refusal to execute an
underwriting agreement on the basis of this subsection (e); PROVIDED FURTHER,
that in any such event, for the purposes of determining the number of demand
requests available to a Holder hereunder, the request for the applicable
registration shall not count against such Holder.
8. INFORMATION BY HOLDER. Each Holder of Registrable Securities included in
any registration shall timely furnish to the Company such information regarding
such Holder as the Company may reasonably request in writing and as shall be
reasonably required in connection with any registration, qualification or
compliance referred to in this Agreement or otherwise required by applicable
state or federal securities laws.
9. LIMITATIONS ON REGISTRATION RIGHTS. From and after the date of this
Agreement, the Company shall not enter into any agreement with any holder or
prospective holder of any securities of the Company giving such holder or
prospective holder, on terms more favorable to such holder than included herein,
(a) the right to require the Company, upon any registration of any of its
securities, to include, among the securities which the Company is then
registering, securities owned by such holder, unless under the terms of such
agreement, such holder or prospective holder may include such securities in any
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such registration only to the extent that the inclusion of its securities will
not limit the number of Registrable Securities sought to be included by the
Holders of Registrable Securities or reduce the offering price thereof, or (b)
the right to require the Company to initiate any registration of any securities
of the Company.
10. RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission which may permit the sale of
restricted securities (as that term is used in Rule 144 under the Securities
Act) to the public without registration, the Company agrees to:
(a) make and keep public information available at all times, as those
terms are understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act at any time after it has become subject to
such reporting requirements; and
(c) so long as a Holder owns any restricted securities, furnish to the
Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of Rule 144, the Securities Act and
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed as the Holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing the Holder to sell any such securities without registration.
11. LISTING APPLICATION. If shares of any class of stock of the Company
shall be listed on a national securities exchange, the Company shall, at its
expense, include in its listing application all of the shares of the listed
class then owned by any Holder.
12. DAMAGES. The Company recognizes and agrees that the Holder of
Registrable Securities shall not have an adequate remedy if the Company fails to
comply with the provisions of this Agreement, and that damages will not be
readily ascertainable, and the Company expressly agrees that in the event of
such failure any Holder of Registrable Securities shall be entitled to specific
performance of the Company's obligations hereunder and that the Company will not
oppose an application seeking such specific performance.
13. AMENDMENTS AND WAIVERS. Amendments or additions to this Agreement may
be made, agreements with any decision of the Company may be made, and compliance
with any term, covenant, agreement, condition, or provision set forth herein may
be omitted or waived (either generally or in a particular instance and either
retroactively or prospectively) upon the written consent of the Company and the
Holders of a majority of the then outstanding Registrable Securities, PROVIDED
that, to the extent such amendment affects any party or parties hereto
disproportionally to any other party or parties, no amendment may be made
without the consent of the party so disproportionally affected. Prompt notice of
any such amendment or waiver shall be given to any Person who did not consent
thereto. This Agreement constitutes the full and complete agreement of the
parties with respect to the subject matter hereof.
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14. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to each of the Holders as follows:
(a) The execution, delivery, and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of court or other agency or government
by which the Company or any of its properties or assets is bound, the corporate
charter or by-laws of the Company or any provision of any indenture, agreement,
or other instrument to which the Company or any of its properties or assets is
bound, conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any such indenture, agreement, or other
instrument or result in the creation or imposition of any lien, charge, or
encumbrance of any nature whatsoever upon any of the properties or assets of the
Company.
(b) This Agreement has been duly executed and delivered by the Company
and constitutes the legal, valid, and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
15. MISCELLANEOUS.
(a) SURVIVAL OF REPRESENTATIONS. The representations, warranties,
covenants and agreements made herein or in any certificates or documents
executed in connection herewith shall survive the execution and delivery hereof
and the closing of the transaction contemplated hereby.
(b) PARTIES IN INTEREST; ASSIGNMENT. Except as otherwise set forth
herein, all covenants, agreements, representations, warranties and undertakings
contained in this Agreement shall be binding on and shall inure to the benefit
of the respective successors and assigns of the parties hereto (including
transferees of any Registrable Securities) whether so expressed or not. The
rights granted to a Holder of Series B Preferred Stock or Common Stock under
this Agreement may be transferred by such Holder (or his successor) to any
affiliate or transferee of such Holder; PROVIDED, HOWEVER, 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.
(c) NOTICES. All notices, requests, consents, reports and demands
shall be in writing and shall be hand delivered, sent by facsimile or other
electronic medium, or mailed, postage prepaid, or sent by reputable overnight
courier, delivery charges prepaid, to the Company at the addresses set forth
below or to the Holders at the addresses set forth on their signature pages
hereto or to such other addresses as may be furnished in writing to the other
parties hereto. All such notices and communications shall be deemed to have been
duly given three (3) business days after being deposited in the mail, postage
prepaid, if mailed; one (1) business day after being sent by overnight courier;
when receipt acknowledged, if telecopied.
If to the Company: 0000 X. Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
11
and
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Squire, Xxxxxxx & Xxxxxxx LLP
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If notice is to be sent to any subsequent Holder of Registrable
Securities, it shall be at such address as may have been furnished to the
Company in writing by such Holder; or, in any case, at such other address or
addresses as shall have been furnished in writing to the Company (in the case of
a Holder of Registrable Securities) or to the Holders of Registrable Securities
(in the case of the Company) in accordance with the provisions of this
paragraph.
(e) COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original but all of which shall
constitute but one and the same instrument. One or more counterparts of this
Agreement may be delivered via telecopier, with the intention that they shall
have the same effect as an original counterpart hereof.
(f) EFFECT OF HEADINGS. The article and section headings herein are
for convenience only and shall not affect the construction hereof.
(g) ADJUSTMENTS. All provisions of this Agreement shall be
automatically adjusted to reflect any stock dividend, stock split or other such
form of recapitalization.
(h) GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the internal laws of the state of New York,
without giving effect to the conflicts of laws principles thereof.
(i) UNENFORCEABILITY. If any provision of this Agreement shall be held
to be illegal, invalid, or unenforceable, such illegality, invalidity, or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
[The remainder of this page is intentionally left blank]
12
IN WITNESS WHEREOF, this Registration Rights Agreement has been executed as
of the date and year first above written.
COMPANY:
RURAL/METRO CORPORATION
By: /s/ Xxxx X. Xxxxx III
---------------------------------------------
Name: Xxxx X. Xxxxx III
-------------------------------------------
Title: Senior Vice President and General Counsel
------------------------------------------
13
HOLDERS:
SPECIAL VALUE BOND FUND II, LLC
By: SVIM/MSM I, LLC
Its: Managing Member
By: Xxxxxxxxxx & Co., LLC
Its Managing Member
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
-------------------------------------------
Title: Portfolio Manager
------------------------------------------
Address for Notices:
00000 Xxxxx Xxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
14
GE CAPITAL CFE, Inc.
By: /s/ Xxxxxxx Xxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxx
-------------------------------------------
Title: Risk Manager
------------------------------------------
Address for Notices:
GE Capital CFE, Inc.
0 Xxxx Xxxxx Xxxx, Xxxx 0X
Xxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxxx.xxxxx@xxxxxxxxx.xxx
14
CONTINENTAL CASUALTY COMPANY
By: /s/ Xxxxxxx X. XxXxxx
---------------------------------------------
Name: Xxxxxxx X. XxXxxx
-------------------------------------------
Title: Vice President
------------------------------------------
Address for Notices:
Continental Casualty Company
000 Xxxxx Xxxxxx Xxxxxx
CNA Plaza - 23 South
Chicago, IL 60685
Attn: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
email: xxxx.xxxxxxxx@xxx.xxx
15
CERBERUS PARTNERS, L.P.
By: Cerberus Associates, L.L.C.
Its: General Partner
By: /s/ Xxxxx Xxxxx
---------------------------------------------
Name: Xxxxx Xxxxx
-------------------------------------------
Title: Authorized Signatory
------------------------------------------
Address for Notices:
Cerberus Partners, LP
000 Xxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxx@xxxxxxxxxxxxxxxx.xxx
16
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P.,
as Collateral Manager
By: /s/ Xxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxxx
-------------------------------------------
Title: President
------------------------------------------
Address for Notices:
For Credit Contact:
Highland Capital Management, L.P.
1300 Two Galleria Tower
00000 Xxxx Xxxx XX #00
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxx, Executive V.P.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to
Highland Capital Management, L.P.
1300 Two Galleria Tower
00000 Xxxx Xxxx XX #00
Xxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxxxx, Portfolio Administrator
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
For Operations Contact:
Highland Capital Management, L.P.
1300 Two Galleria Tower
00000 Xxxx Xxxx XX #00
Xxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxx, Portfolio Administrator
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: XXxxxxx@xxxxxx.xxx
With a copy to
Pamco II
c/o Chase Bank of Texas, N.A.
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx Xxxxx
Acct. 1773600
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
17
XXX CAPITAL FUNDING LP
By: Highland Capital Management, L.P.,
as Collateral Manager
By: /s/ Xxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxxx
-------------------------------------------
Title: President
------------------------------------------
Address for Notices:
For Credit Contact:
Highland Capital Management, L.P.
1300 Two Galleria Tower
00000 Xxxx Xxxx XX #00
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxx, Executive V.P.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to
Highland Capital Management, L.P.
1300 Two Galleria Tower
00000 Xxxx Xxxx XX #00
Xxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxxxx, Portfolio Administrator
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
For Operations Contact:
Highland Capital Management, L.P.
1300 Two Galleria Tower
00000 Xxxx Xxxx XX #00
Xxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxx, Portfolio Administrator
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: XXxxxxx@xxxxxx.xxx
With a copy to
XXX Capital Funding
c/o Chase Bank of Texas, N.A.
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxx Xxxxxxx
Acct. 2002600
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
18
