Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of July 21, 1996, by and among Keystone Holdings Partners
L.P., a Texas limited partnership (the "Partnership"), the Federal Deposit
Insurance Corporation ("FDIC"), as manager of the FSLIC Resolution Fund
(the "FRF") (collectively with the FDIC, the "Initial Securities Holders"),
and Washington Mutual, Inc., a Washington corporation (the "Company").
WHEREAS, the Partnership owns all of the outstanding capital stock of
Keystone Holdings Inc., a Delaware corporation ("Keystone");
WHEREAS, the Partnership, Keystone, the Company, and certain direct
and indirect subsidiaries of Keystone are concurrently with the execution
of this Agreement entering into an Agreement for Merger (the "Merger
Agreement"), providing for the merger of Keystone with and into the Company
in exchange for 26,000,000 newly issued shares of Common Stock, no par
value, of the Company ("Common Stock") to be issued to the Partnership, all
in accordance with the terms of the Merger Agreement;
WHEREAS, the Partnership, the FDIC, the Company, Keystone, certain of
Keystone's direct and indirect subsidiaries and certain other parties are,
concurrently with the execution of this Agreement, entering into that
certain agreement (the "Warrant Exchange Agreement") pursuant to which the
FDIC is to transfer at the Effective Time (as defined in the Merger
Agreement) warrants that the FRF holds for capital stock of N.A. Capital
Holdings, Inc. to the Company in exchange for 14,000,000 newly issued
shares of Common Stock, all in accordance with the terms of the Warrant
Exchange Agreement;
WHEREAS, pursuant to the Merger Agreement and the Warrant Exchange
Agreement, the Company will issue at the Effective Time an additional
8,000,000 newly issued shares of Common Stock (the "Litigation Shares") and
deliver such shares to an escrow agent for release on a proportional basis
to the Initial Securities Holders, or their permitted assigns, in the event
of a cash recovery in the Case after the Closing, all in accordance with
the terms of the Merger Agreement, the Warrant Exchange Agreement and the
Escrow Agreement (as defined in the Merger Agreement);
WHEREAS, the transactions contemplated by the Merger Agreement and the
Warrant Exchange Agreement are to be consummated at the Closing;
WHEREAS, in connection with the Merger Agreement and the Warrant
Exchange Agreement, the Company has agreed to provide the registration
rights set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS.
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Affiliate" shall have the meaning ascribed thereto in Rule 12b-2
promulgated by the Commission under the Exchange Act as in effect on
the date hereof.
"Agreement" shall mean this Registration Rights Agreement, as it
may be amended, supplemented or otherwise modified from time to time.
"Closing" shall have the meaning assigned to such term in the
Recitals.
"Closing Date" shall mean the date on which the Closing occurs.
"Commission" shall mean the United States Securities and Exchange
Commission or any successor thereto.
"Common Stock" shall have the meaning assigned to such term in
the Recitals.
"Company" shall have the meaning assigned to such term in the
Preamble.
"Company Public Sale Event" shall mean any sale by the Company of
Common Stock for its own account as contemplated by subsection 4.1
pursuant to an effective Registration Statement filed by the Company,
filed on Form S-1 or any other form for the general registration of
securities with the Commission (other than a Registration Statement
filed by the Company on either Form S-4 or Form S-8 or any
registration in connection with a standby underwriting in connection
with the redemption of outstanding convertible securities).
"Company Sale Notice" shall mean a Notice of Offering pursuant to
Subsection 4.1 from the Company to each Security Holder stating that
the Company proposes to effect a Company Public Sale Event.
"Effective Time" shall have the meaning assigned to such term in
the Recitals.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and any rules and regulations promulgated thereunder, and any
successor federal statute, rules or regulations.
"FDIC" shall have the meaning assigned to such term in the
Preamble.
"Form S-1" shall mean such form of registration statement under
the Securities Act as in effect on the date hereof or any successor
form thereto.
"Form S-3" shall mean such form of registration statement under
the Securities Act as in effect on the date hereof or any successor
form thereto.
"Form S-4" shall mean such form of registration statement under
the Securities Act as in effect on the date hereof or any successor
form thereto.
"Form S-8" shall mean such form of registration statement under
the Securities Act as in effect on the date hereof or any successor
form thereto.
"FRF" shall have the meaning assigned to such term in the
Preamble.
"Initial Merger Shares" shall mean the aggregate of 40,000,000
newly issued shares of Common Stock issued by the Company pursuant to
the terms of the Merger Agreement and the Warrant Exchange Agreement
at the Effective Time, which shall consist of the 26,000,000 Keystone
Initial Shares (as defined in the Merger Agreement) and the 14,000,000
FRF Initial Shares (as defined in the Merger Agreement).
Notwithstanding the foregoing, if an Adjustment Event (as defined in
the Merger Agreement) shall have occurred, then the Keystone Initial
Shares shall be reduced to 25,883,333 shares of Common Stock, and the
numbers 40,000,000 and 26,000,000 in this Agreement, shall be changed
to the numbers 39,883,333 and 25,883,333, respectively, subject to
Section 2.2(c) of the Merger Agreement.
"Initial Securities Holders" shall have the meaning assigned to
such term in the Preamble of this Agreement.
"Initial Underwriting" shall mean the underwritten public
offering referred to in Section 2.
"Keystone" shall have the meaning assigned in the first Recital.
"Litigation Shares" shall have the meaning assigned to such term
in the Recitals.
"Litigation Shelf" shall have the meaning assigned to such term
in subsection 3.1(b) hereof.
"Merger Agreement" shall have the meaning assigned to such term
in the Recitals.
"NASD" shall mean the National Association of Securities Dealers,
Inc. or any successor thereto.
"Notice of Offering" shall mean a written notice with respect to
(a) the Initial Underwriting, or (b) a proposed underwritten public
offering pursuant to the Shelf Registration Statement or (c) a Company
Public Sale Event, in each case setting forth (i) the expected maximum
and minimum number of shares of Registrable Common or Common Stock, as
the case may be, proposed to be offered and sold, (ii) the lead
managing underwriter, if applicable or selected and (iii) the proposed
method of distribution and the expected timing of the offering.
"Partnership" shall have the meaning assigned to such term in the
Preamble of this Agreement.
"Person" shall mean an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, governmental authority or
other entity of whatever nature.
"Piggybacking Securities Holder" shall mean Securities Holders
selling Registrable Common in connection with a Company Public Sale
Event pursuant to subsection 4.3.
"Preliminary Prospectus" shall mean each preliminary prospectus
included in a Registration Statement or in any amendment thereto prior
to the date on which such Registration Statement is declared effective
under the Securities Act, including any prospectus filed with the
Commission pursuant to Rule 424(a) under the Securities Act.
"Prospectus" shall mean each prospectus included in a
Registration Statement (including, without limitation, a prospectus
that discloses information previously omitted from a prospectus filed
as part of an effective Registration Statement in accordance with Rule
430A), together with any supplement thereto, and any material
incorporated by reference into such Prospectus, all as filed with, or
transmitted for filing to, the Commission pursuant to Rule 424(b)
under the Securities Act.
"Public Sale Event" shall mean the Initial Underwriting, an
underwritten public offering under the Shelf Registration Statement or
the Litigation Shelf, or a Company Public Sale Event, as the case may
be.
"Purchase Agreement" shall mean any written agreement entered
into by any Securities Holder providing for the sale of Registrable
Common in the manner contemplated by a related Registration Statement,
including the sale thereof to an underwriter for an offering to the
public.
"Registrable Common" shall mean (a) the Initial Merger Shares and
(b) any other securities issued as (or issuable upon the conversion or
exercise of any warrant, right, option or other security which is
issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of, the Initial Merger Shares;
provided, however, that any such Registrable Common shall cease to be
Registrable Common when (i) a Registration Statement with respect to
the sale of such Registrable Common has been declared effective under
the Securities Act and such securities have been disposed of in
accordance with the plan of distribution set forth in such
Registration Statement, (ii) such shares are disposed of pursuant to
Rule 144 (or any similar provisions then in force) under the
Securities Act, (iii) such Registrable Common shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer under the Securities Act shall have been
delivered by the Company and they may be resold without subsequent
registration or qualification under the Securities Act or any state
securities laws then in force, or (iv) such securities shall cease to
be outstanding; provided, further, that any securities that have
ceased to be Registrable Common cannot thereafter become Registrable
Common, and any security that is issued or distributed in respect to
securities that have ceased to be Registrable Common shall not be
Registrable Common.
"Registrable Litigation Shares" shall mean (a) the Litigation
Shares and (b) any other securities issued as (or issuable upon the
conversion or exercise of any warrant, right, option or other security
which is issued as) a dividend or other distribution with respect to,
or in exchange for or in replacement of, the Litigation Shares;
provided, however, that any such Registrable Litigation Shares shall
cease to be Registrable Litigation Shares when (i) a Registration
Statement with respect to the sale of such Registrable Litigation
Shares has been declared effective under the Securities Act and such
securities have been disposed of in accordance with the plan of
distribution set forth in such Registration Statement, (ii) such
shares are disposed of pursuant to Rule 144 (or any similar provisions
then in force) under the Securities Act, (iii) such Registrable
Litigation Shares shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further
transfer under the Securities Act shall have been delivered by the
Company and they may be resold without subsequent registration or
qualification under the Securities Act or any state securities laws
then in force, or (iv) such securities shall cease to be outstanding;
provided, further, that any securities that have ceased to be
Registrable Litigation Shares cannot thereafter become Registrable
Litigation Shares, and any security that is issued or distributed in
respect to securities that have ceased to be Registrable Litigation
Shares shall not be Registrable Litigation Shares.
"Registration" shall mean a registration of securities pursuant
to the Securities Act.
"Registration Statement" shall mean any registration statement
(including the Preliminary Prospectus, the Prospectus, any amendments
(including any post-effective amendments) thereof, any supplements and
all exhibits thereto and any documents incorporated therein by
reference pursuant to the rules and regulations of the Commission),
filed by the Company with the Commission under the Securities Act in
connection with any Public Sale Event.
"Responsible Officer" shall mean, as to the Company, the chief
executive officer, the president, the chief financial officer or any
executive or senior vice president of the Company.
"Rule 144" shall mean Rule 144 promulgated by the Commission
under the Securities Act, or any successor to such Rule.
"Rule 415" shall mean Rule 415 promulgated by the Commission
under the Securities Act, or any successor to such Rule.
"Rule 424" shall mean Rule 424 promulgated by the Commission
under the Securities Act, or any successor to such Rule.
"Rule 430A" shall mean Rule 430A promulgated by the Commission
under the Securities Act, or any successor to such Rule.
"Sale Event" shall mean any sale by the Company of Common Stock
pursuant to a Company Public Sale Event or any sale by any Securities
Holder of Registrable Common pursuant to the Initial Underwriting or
the Shelf Registration Statement, or Registrable Litigation Shares
pursuant to the Litigation Shelf.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and any rules and regulations promulgated thereunder and, any
successor federal statutes, rules or regulations.
"Securities Holder" shall mean any Initial Securities Holder and
any transferee thereof to whom are transferred the rights and
obligations of a Securities Holder pursuant to subsection 6.8.
"Securities Holders' Counsel" shall mean the single law firm from
time to time representing the Securities Holders collectively as
appointed by Securities Holders owning a majority of the Registrable
Common and Registrable Litigation Shares held by Securities Holders at
the time of such appointment.
"Securities Holder's Questionnaire" shall mean the questionnaire
to be provided by each Securities Holder to the Company, substantially
in the form of Annex A, as the same from time to time may be amended,
supplemented or otherwise modified.
"Shelf Registration Statement" shall have the meaning assigned to
such term in subsection 3.1.
"Significant Securities Holder" shall mean, on any date of
determination thereof, a Securities Holder then holding or
beneficially owning in the aggregate more than 5% of the number of
shares of the Common Stock then outstanding.
"Supplemental Addendum" shall mean a Supplemental Addendum
substantially in the form of Annex B to this Agreement.
"Termination Date" shall mean the later of the respective dates
on which the Company has no further obligation under the terms of this
Agreement to file or keep effective the Shelf Registration Statement
or the Litigation Shelf, as the case may be.
"Warrant Exchange Agreement" shall have the meaning assigned to
it in the Recitals.
i. The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular
provision of this Agreement. Unless otherwise specified,
references to sections, subsections, schedules and exhibits
are references to such in this Agreement.
SECTION 2. INITIAL UNDERWRITING.
2.1 Underwritten Offering. The Company will use its best efforts to
cause to be effective on the Closing Date, or as soon as practicable
thereafter (recognizing that time is of the essence), a Registration
Statement with respect to an underwritten public offering of not less than
7.5 million and not more than 20 million shares of Registrable Common;
provided, however, that the Company agrees that it shall not cause such
Registration Statement to be effective on the Closing Date or as soon as
practicable thereafter if the Company and the holders of a majority of the
Registrable Common participating in the Initial Underwriting mutually agree
prior to the Closing Date, or thereafter, to cause such Registration
Statement to be declared effective on another date, which date shall not be
under any circumstances later than the date three (3) days after the
Company publishes financial results covering thirty (30) days or more of
post-Merger combined operations. Promptly after the execution hereof, the
Company shall send a Notice of Offering to the Initial Securities Holders
with respect to the Initial Underwriting. The Initial Securities Holders
shall thereafter have thirty (30) days within which to submit a written
response to the Company expressing their interest in participating in the
Initial Offering and specifying the number of shares of Registrable Common
they desire to sell in the Offering. Subject to subsection 2.3 hereof, all
Securities Holders will be entitled to participate in the Initial
Underwriting in accordance with the related Notice of Offering to the full
extent of their Registrable Common; provided, however, that no Securities
Holder shall be entitled to participate in the Initial Underwriting if such
participation would be a violation of the pooling representation letter
given by such Securities Holder to the Company pursuant to the Merger
Agreement.
2.2 Underwriters. The underwriters for the Initial Underwriting will
be nationally recognized underwriters chosen by Securities Holders owning a
majority of the Registrable Common held by Securities Holders anticipated
to be participating in the Initial Underwriting, as previously identified
to the Company.
2.2 Allocation in Initial Underwriting. If all the eligible shares
of Registrable Common requested to be included in the Initial Underwriting
cannot be so included as a result of the limit on the aggregate number of
shares of Registrable Common set forth in subsection 2.1, the number of
shares of Registrable Common that may be so included shall be allocated
among the Securities Holders pro rata on the basis of the number of shares
of Registrable Common held by such eligible Securities Holders; provided,
however, that such allocation shall not operate to reduce the aggregate
number of shares of Registrable Common that may be so included in such
underwriting. If any Securities Holder does not request inclusion of the
maximum number of eligible shares of Registrable Common allocated to it
pursuant to the above-described procedure, the remaining portion of its
allocation shall be reallocated among those requesting eligible Securities
Holders whose allocation did not satisfy their requests pro rata on the
basis of the number of shares of Registrable Common held by such Securities
Holders, and this procedure shall be repeated until all of the shares of
Registrable Common which may be included in the underwriting have been so
allocated.
SECTION 3. SHELF REGISTRATION.
3.1 Shelf Registration. The Company agrees to prepare and file with
the Commission a "shelf" Registration Statement on Form S-3 for an offering
to be made on a continuous basis pursuant to Rule 415 covering all of the
Registrable Common not previously sold in the Initial Underwriting (the
"Shelf Registration Statement"). The permitted methods of distribution of
shares of Registrable Common under the Shelf Registration Statement shall
be limited to transactions complying with the provisions of Rule 144(f) and
underwritten offerings of shares of Registrable Common under the Shelf
Registration Statement in accordance with this Section 3. The Company will
use its best efforts to have such Registration Statement declared effective
by the Commission on or as soon as practicable after the date that is nine
(9) months after the Effective Date (as defined in the Merger Agreement).
The Company shall use its best efforts to keep the Shelf Registration
Statement continuously effective until the earlier of (A) the date three
(3) years after the effective date of the Shelf Registration Statement
(subject to any "black-out" periods and extensions of such three-year
period pursuant to subsection 5.1) and (B) the date on which no Registrable
Common remains outstanding.
(b) The Company agrees to prepare and file with the Commission a
"shelf" Registration Statement on Form S-3 for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Litigation Shares
that are distributed to the Initial Securities Holders or their permitted
assigns pursuant to the Merger Agreement (the "Litigation Shelf"). The
permitted method of distribution of such Litigation Shares shall be limited
to transactions complying with the provisions of Rule 144(f). The Company
will use its best efforts to (i) have such Registration Statement declared
effective by the Commission on or as soon as practicable after the first
date any Litigation Shares are distributed from the escrow established at
the Closing under the Merger Agreement, and (ii) to keep such Registration
Statement continuously effective until the earlier of (A) the date three
(3) years thereafter (subject to any "black-out" periods and extensions of
such three-year period pursuant to subsection 5.1), and (B) the date on
which no Registrable Litigation Shares remain outstanding. Notwithstanding
the foregoing, in the event any Aggregate Escrow Distribution (as defined
in the Merger Agreement) is made over time as a result of Installments (as
defined in the Merger Agreement), the Company shall be obligated to use its
best efforts to keep the Litigation Shelf continuously effective until the
earlier of (I) the date one (1) year after the last distribution of
Litigation Shares from the escrow (so long as such date is at least three
(3) years after the first date any Litigation Shares are distributed from
such escrow) and (II) the date on which no Registrable Litigation Shares
remain outstanding.
3.2 Demand Underwritings. If the Company shall at any time receive
a Notice of Offering from any Securities Holder or Securities Holders
holding a minimum of 15% of the Registrable Common then outstanding (but in
no event less than 3,000,000 shares) requesting an underwritten public
offering of Registrable Common under the Shelf Registration Statement that
has anticipated aggregate proceeds at the time of the request (net of
underwriting discounts, commissions and expenses) in excess of $10,000,000,
the Company shall, subject to the terms and conditions hereof, be obligated
to use its best efforts to facilitate such proposed underwritten public
offering pursuant to the terms of this Agreement. The provisions of this
subsection 3.2 shall not be applicable to Registrable Litigation Shares.
(b) Following receipt of the notice referred to in subsection 3.2(a),
the Company shall promptly give a Notice of Offering to all Securities
Holders (other than the demanding Securities Holders), which shall set
forth the right of such Securities Holders to include any or all shares of
Registrable Common held by such Securities Holders in the proposed
offering, subject to the terms of this Agreement. Subject to
subsection 3.2(e), the Company shall use its best efforts to facilitate the
inclusion in the proposed underwritten public offering of the number of
shares of Registrable Common specified in written requests from such
Securities Holders that are received by the Company within fifteen
(15) days after the Company provides its Notice of Offering to all
Securities Holders.
(c) The Securities Holders shall be entitled to a total of four (4)
underwritten public offerings of Registrable Common under the Shelf
Registration Statement during the three (3) year period following the
effective date of the Shelf Registration Statement (subject to any "black
out" periods and extensions of such three (3) year period pursuant to
subsection 5.1); provided, that no more than two of such underwritten
public offerings may take place in any twelve (12) month period.
(d) All underwritten public offerings of Registrable Common under the
Shelf Registration Statement shall be broadly distributed. If at any time
any of the Securities Holders of the Registrable Common covered by the
Shelf Registration Statement desire to sell Registrable Common in an
underwritten offering in accordance with the limitations of this
subsection 3.2, the investment banker or investment bankers that will
manage the offering will be nationally recognized underwriters selected
jointly by the Company and by the Securities Holders owning a majority of
the Registrable Common held by Securities Holders included in such
offering.
(e) If all the shares of Registrable Common requested to be included
in any underwritten public offering pursuant to this Section 3 cannot be so
included as a result of any reasonable limit established by the
underwriters on the aggregate number of shares of Registrable Common
included in such underwriting, the number of shares of Registrable Common
that may be so included shall be allocated among the Securities Holders pro
rata on the basis of the number of shares of Registrable Common held by
such Securities Holders; provided, however, that such allocation shall not
operate to reduce the aggregate number of shares of Registrable Common that
may be so included in such underwriting. If any Securities Holder does not
request inclusion of the maximum number of shares of Registrable Common
allocated to it pursuant to the above-described procedure, the remaining
portion of its allocation shall be reallocated among those requesting
Securities Holders whose allocation did not satisfy their requests pro rata
on the basis of the number of shares of Registrable Common held by such
Securities Holders, and this procedure shall be repeated until all of the
Registrable Shares which may be included in the underwriting have been so
allocated.
(f) Securities Holders holding a majority of the Registrable Common
exercising a demand right for an underwritten public offering under this
subsection 3.2 may withdraw the exercise of such right on behalf of all
such exercising Securities Holders as a result of a material adverse change
in the earnings, condition, financial or otherwise, or prospects of the
Company, or a material adverse change in the market for equity securities
generally by giving written notice to the Company prior to the date the
Purchase Agreement for such underwritten public offering is signed, and
such withdrawn demand registration right shall not be deemed to be one of
the four demand rights provided under Section 3.2(c); provided, however,
that the Company shall not be required to deliver a Notice of Offering with
respect to a renewed or new demand for an underwritten public offering
pursuant to subsection 3.2 or to take any other action with respect to any
such renewed or new demand for a period of ninety (90) days following any
such notice of withdrawal.
SECTION 4. COMPANY SALE EVENTS.
4.1 Determination. Subject to subsection 5.2, the Company may at any
time effect a Company Public Sale Event pursuant to a Registration
Statement filed by the Company if the Company gives each Securities Holder
a Company Sale Notice, provided that such Company Sale Notice is given not
less than 21 days prior to the initial filing of the related Registration
Statement. The obligation of the Company to give to each Securities Holder
a Company Sale Notice and to permit piggyback registration rights to
Securities Holders with respect to Registrable Common in connection with
Company Sale Events in accordance with this Section 4 shall terminate on
the earlier of (A) the date three (3) years after the effective date of the
Shelf Registration Statement (subject to any "black-out" periods and
extensions of such three-year period pursuant to subsection 5.1) and (B)
the date on which no Registrable Common remains outstanding. The
provisions of this Section 4 shall not be applicable to Registrable
Litigation Shares.
4.2 Notice. The Company Sale Notice shall offer the Securities
Holders the opportunity to participate in such offering and include the
number of shares of Registrable Common which represents the best estimate
of the lead managing underwriter (or, if not known or applicable, the
Company) that will be available for sale by the Securities Holders in the
proposed offering.
4.3 Piggyback Rights of Securities Holders. (a) If the Company
shall have delivered a Company Sale Notice, Securities Holders shall be
entitled to participate on the same terms and conditions as the Company in
the Company Public Sale Event to which such Company Sale Notice relates and
to offer and sell shares of Registrable Common therein only to the extent
provided in this subsection 4.3. Each Securities Holder desiring to
participate in such offering shall notify the Company no later than ten
(10) days following receipt of a Company Sale Notice of the aggregate
number of shares of Registrable Common that such Securities Holder then
desires to sell in the offering.
(b) Each Securities Holder desiring to participate in a Company
Public Sale Event may include shares of Registrable Common in any
Registration Statement relating to a Company Public Sale Event to the
extent that the inclusion of such shares shall not reduce the number of
shares of Common Stock to be offered and sold by the Company to be included
therein. If the lead managing underwriter selected by the Company for a
Company Public Sale Event advises the Company in writing that the total
number of shares of Common Stock to be sold by the Company together with
the shares of Registrable Common which such holders intend to include in
such offering would be reasonably likely to adversely affect the price or
distribution of the Common Stock offered in such Company Public Sale Event
or the timing thereof, then there shall be included in the offering only
that number of shares of Registrable Common, if any, that such lead
managing underwriter reasonably and in good faith believes will not
jeopardize the marketing of the offering; provided that if the lead
managing underwriter determines that such factors require a limitation on
the number of shares of Registrable Common to be offered and sold as
aforesaid and so notifies the Company in writing, the number of shares of
Registrable Common to be offered and sold by Securities Holders desiring to
participate in the Company Public Sale Event, shall be allocated among
those Securities Holders desiring to participate in such Company Public
Sale Event on a pro rata basis based on their holdings of Registrable
Common. If any Securities Holder does not request inclusion of the maximum
number of shares of Registrable Common allocated to it pursuant to the
above-described procedure, the remaining portion of its allocation shall be
reallocated among those requesting Securities Holders whose allocation did
not satisfy their requests pro rata on the basis of the number of shares of
Registrable Common held by such Securities Holders, and this procedure
shall be repeated until all of the shares of Registrable Common which may
be included in the underwriting have been so allocated.
4.4 Discretion of the Company. In connection with any Company Public
Sale Event, subject to the provisions of this Agreement, the Company, in
its sole discretion, shall determine whether (a) to proceed with, withdraw
from or terminate such Company Public Sale Event, (b) to enter into a
purchase agreement or underwriting agreement for such Company Public Sale
Event, and (c) to take such actions as may be necessary to close the sale
of Common Stock contemplated by such offering, including, without
limitation, waiving any conditions to closing such sale which have not been
fulfilled. No public offering effected pursuant to this Section 4 shall be
deemed to have been effected pursuant to Section 2 or Section 3 hereof.
SECTION 5. BLACK-OUT PERIODS.
5.1 Black-Out Periods for Securities Holders. (a) No Securities
Holder shall offer to sell or sell any shares of Registrable Common
pursuant to the Shelf Registration Statement or Registrable Litigation
Shares pursuant to the Litigation Shelf during the 60-day period
immediately following the effective date of any Registration Statement
filed by the Company in respect of a Company Public Sale Event.
(b) No Securities Holder shall offer to sell or sell any shares of
Registrable Common pursuant to the Shelf Registration Statement or
Registrable Litigation Shares pursuant to the Litigation Shelf, and the
Company shall not be required to supplement or amend any Registration
Statement or otherwise facilitate the sale of Registrable Common or
Registrable Litigation Shares pursuant thereto, during the 90-day period
(or such lesser number of days until the Company makes its next required
filing under the Exchange Act) immediately following the receipt by each
Securities Holder of a certificate of an authorized officer of the Company
to the effect that the Board of Directors of the Company has determined in
good faith that such offer, sale, supplement or amendment is likely to (1)
interfere with or affect the negotiation or completion of any transaction
that is being contemplated by the Company (whether or not a final decision
has been made to undertake such transaction) at the time the right to delay
is exercised, or (2) involve initial or continuing disclosure obligations
that might not be in the best interest of the Company or its stockholders.
If any proposed sale is so postponed as provided herein, Securities Holders
having filed the Notice of Offering pursuant to subsection 3.2 to which the
deferral relates may, within 30 days after receipt of the notice of
postponement, advise the Company in writing that it has determined to
withdraw its request for registration, and such demand registration request
shall be deemed to be withdrawn and such request shall be deemed not have
been exercised for purposes of determining whether such holders retain the
right to demand registrations pursuant to Section 3.2(c). Any period
described in subsection 5.1(a) or 5.1(b) during which Securities Holders
are not able to sell shares of Registrable Common pursuant to the Shelf
Registration Statement or Registrable Litigation Shares pursuant to the
Litigation Shelf is herein referred to as a "black-out" period. The
Company shall notify each Securities Holder of the expiration or earlier
termination of any "black-out" period (the nature and pendency of which
need not be disclosed during such "black-out" period).
(c) The period during which the Company is required pursuant to
subsection 3.1(a) or 3.1(b), respectively, to keep the Shelf Registration
Statement or the Litigation Shelf continuously effective shall be extended
by a number of days equal to the number of days, if any, of any "black-out"
period applicable to Securities Holders pursuant to this subsection 5.1
occurring during such period, plus a number of days equal to the number of
days during such period, if any, of any period during which the Securities
Holders are unable to sell any shares of Registrable Common pursuant to the
Shelf Registration Statement or Registrable Litigation Shares pursuant to
the Litigation Shelf as a result of the happening of any event of the
nature described in subsection 6.3(c)(ii), 6.3(c)(iii) or 6.3(c)(v).
5.2 Black-Out Period for the Company. Except for offers to sell and
sales of Common Stock pursuant to a Registration Statement on Form S-8 or
on Form S-4, standby underwritings in connection with the redemption of
outstanding convertible securities, the conversion of outstanding
convertible securities or in connection with the acquisition by the Company
of another company or business, the Company shall not publicly offer to
sell or sell any shares of capital stock of the Company during the 60-day
period immediately following the initial sale of shares by any Securities
Holder in an underwritten public offering of shares of Registrable Common
pursuant to Sections 2 or 3.
5.3 Financial Reporting. The Company agrees that during the period
from and after the Effective Time to and including the date 90 days
thereafter, it will not publish financial results covering 30 or more days
of post-Merger combined operations, except as part of the publication of
financial results in the ordinary course for a quarterly operating period
that includes such post-Merger combined operations, unless otherwise
required by law.
SECTION 6. AGREEMENTS CONCERNING OFFERINGS.
6.1 Obligations of Securities Holders. (a) Each Securities Holder
shall, upon the reasonable request of the Company, advise the Company of
the number of shares of Registrable Common and Registrable Litigation
Shares then held or beneficially owned by it.
(b) It shall be a condition precedent to the obligations of the
Company to effect a Registration of, or facilitate any Public Sale Event
with respect to, any shares of Registrable Common or Registrable Litigation
Shares for any Securities Holder that such Securities Holders shall have
furnished to the Company a complete Securities Holder's Questionnaire and
such additional information regarding such Securities Holder, the
Registrable Common or Registrable Litigation Shares held by them and the
intended method of disposition of such securities as shall be required by
law, the Commission or the NASD, and any other information relating to such
Registration reasonably required by the Company.
6.2 Obligations of the Company. Whenever required under this
Agreement to proceed with a Registration of any Registrable Common or
Registrable Litigation Shares, the Company shall, subject to the terms and
conditions of this Agreement, use its best efforts to proceed as
expeditiously as reasonably possible to:
(a) Prepare and file with the Commission a Registration Statement
with respect to such Registrable Common or Registrable Litigation Shares
and use its best efforts to cause such Registration Statement to become
effective; provided, however, that before filing a Registration Statement
or Prospectus or any amendments or supplements thereto, the Company will
furnish to the Security Holders covered by such Registration Statement and
to Securities Holders' counsel copies of any such Registration Statement or
Prospectus proposed to be filed.
(b) Prepare and file with the Commission such amendments (including
post-effective amendments) to such Registration Statement and supplements
to the related Prospectus used in connection with such Registration
Statement, and otherwise use its best efforts, to the end that such
Registration Statement reflects the plan of distribution of the securities
registered thereunder that is included in the relevant Notice of Offering
and is effective until the completion of the distribution contemplated by
such Registration Statement or so long thereafter as a broker or dealer is
required by law to deliver a Prospectus in connection with the offer and
sale of the shares of Registrable Common or Registrable Litigation Shares
covered by such Registration Statement and/or as shall be necessary so that
neither such Registration Statement nor the related Prospectus shall
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading and so that such Registration Statement and the
related Prospectus will otherwise comply with all applicable legal and
regulatory requirements. The Company shall not be deemed to have effected
a Registration for any purpose under this Agreement unless and until such
Registration Statement is declared effective by the Commission.
(c) Provide to any Securities Holder requesting to include
Registrable Common or Registrable Litigation Shares in such Registration
Statement and any managing underwriter(s) participating in any distribution
thereof and to any attorney, accountant or other agent retained by such
Securities Holder or managing underwriter(s), reasonable access to
appropriate officers and directors of the Company, its independent auditors
and counsel to ask questions and to obtain information (including any
financial and other records and pertinent corporate documents) reasonably
requested by any such Securities Holder, managing underwriter(s), attorney,
accountant or other agent in connection with such Registration Statement or
any amendment thereto, provided, however, that (i) in connection with any
such access or request, any such requesting Persons shall cooperate to the
extent reasonably practicable to minimize any disruption to the operation
by the Company of its business and (ii) any records, information or
documents shall be kept confidential by such requesting Persons, unless
(i) such records, information or documents are in the public domain or
otherwise publicly available or (ii) disclosure of such records,
information or documents is required by court or administrative order or by
applicable law (including, without limitation, the Securities Act).
(d) Furnish at the Company's expense to the participating Securities
Holders and any managing underwriter(s) and to any attorney, accountant or
other agent retained by such Securities Holder or managing underwriter(s),
such number of copies of any Registration Statement and Prospectus,
including any Preliminary Prospectus, in conformity with the requirements
of the Securities Act, and such other documents as they may reasonably
request in order to facilitate the disposition of the shares of Registrable
Common or Registrable Litigation Shares owned by them.
(e) Prior to any Public Sale Event, use its best efforts to register
and qualify the securities covered by such Registration Statement (to the
extent exemptions are not available) under securities or "Blue Sky" laws of
such other jurisdictions as shall be reasonably requested by the Securities
Holders or the managing underwriter(s) and to keep each such registration
or qualification effective during the period required for such Public Sale
Event to be consummated; provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or
to file a general consent to service of process in any such states or
jurisdictions in which it has not already done so.
(f) Enter into and perform its obligations under a Purchase
Agreement, if the offering is an underwritten offering, in usual and
customary form, with the managing underwriter(s) of such underwritten
offering; provided, however, that each Securities Holder participating in
such Public Sale Event shall also enter into and perform its obligations
under such Purchase Agreement so long as such obligations are usual and
customary obligations of selling stockholders in a registered public
offering.
(g) Use its best efforts to cause the Registrable Common or
Registrable Litigation Shares covered by the Registration Statement to be
listed on each national securities exchange in the United States on which
the Common Stock is then listed or quoted on each inter-dealer quotation
system on which the Common Stock is then quoted.
(h) Provide for or designate a transfer agent and registrar (which
may be the same entity) for the Registrable Common or Registrable
Litigation Shares covered by the Registration Statement from and after the
effective date of such Registration Statement.
(i) Cooperate with the selling Securities Holders of Registrable
Common and any managing underwriters to facilitate the timely issuance and
delivery to any underwriters to which any Securities Holder may sell
Registrable Common in such offering certificates evidencing shares of the
Registrable Common not bearing any restrictive legends and in such
denominations and registered in such names as the managing underwriters may
request.
6.3 Agreements Related to Offerings. Subject to the terms and
conditions hereof, in connection with the Registration Statement covering
the Initial Underwriting, any Company Public Sale Event, the Shelf
Registration Statement and the Litigation Shelf, as applicable:
(a) The Company will cooperate with the underwriters for any
underwritten public offering of Registrable Common proposed to be sold
pursuant to a Registration Statement, and will, unless the parties to the
Purchase Agreement otherwise agree, use its best efforts to enter into a
Purchase Agreement not inconsistent with the terms and conditions of this
Agreement and containing such other terms and conditions of a type and form
reasonable and customary for companies of similar size and credit rating
(including, but not limited to, such provisions for delivery of a "comfort
letter" and legal opinion as are customary), and use its best efforts to
take all such other reasonable actions as are necessary or advisable to
permit, expedite and facilitate the disposition of such shares of
Registrable Common in the manner contemplated by such Registration
Statement in each case to the same extent as if all the shares of
Registrable Common then being offered were for the account of the Company.
(b) Neither such Registration Statement nor any amendment or
supplement thereto will be filed by the Company until Securities Holders'
Counsel shall have had a reasonable opportunity to review the same and to
exercise its rights under subsection 6.2(c) with respect thereto. No
amendment to such Registration Statement naming any Securities Holder as a
selling security holder shall be filed with the Commission until such
Securities Holder shall have had a reasonable opportunity to review such
Registration Statement as originally filed. Neither such Registration
Statement nor any related Prospectus or any amendment or supplement thereto
shall be filed by the Company with the Commission which shall be
disapproved (for reasonable cause) by the managing underwriters named
therein or Securities Holders' Counsel within a reasonable period after
notice thereof.
(c) The Company will use its reasonable efforts to keep the
Securities Holders informed of the Company's best estimate of the earliest
date on which such Registration Statement or any post-effective amendment
thereto will become effective and will notify each Securities Holder,
Securities Holders' Counsel and the managing underwriter(s), if any,
participating in the distribution pursuant to such Registration Statement
promptly (i) when such Registration Statement or any post-effective
amendment to such Registration Statement is filed or becomes effective,
(ii) of any request by the Commission for an amendment or any supplement to
such Registration Statement or any related Prospectus, or any other
information request by any other governmental agency directly relating to
the offering, and promptly deliver to each Securities Holder participating
in the offering and the managing underwriter(s), if any, copies of all
correspondence between the Commission or any such governmental agency or
self-regulatory body and all written memoranda relating to discussions with
the Commission or its staff with respect to the Registration Statement or
proposed sale of shares, to the extent not covered by attorney-client
privilege or constituting attorney work product, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of such
Registration Statement or of any order preventing or suspending the use of
any related Prospectus or the initiation or threat of any proceeding for
that purpose, (iv) of `the suspension of the qualification of any shares
of Common Stock included in such Registration Statement for sale in any
jurisdiction or the initiation or threat of a proceeding for that purpose,
(v) of any determination by the Company that an event has occurred (the
nature and pendency of which need not be disclosed during a "black-out
period" pursuant to subsection 5.1(b)) which makes untrue any statement of
a material fact made in such Registration Statement or any related
Prospectus or which requires the making of a change in such Registration
Statement or any related Prospectus in order that the same will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading,
(vi) of the completion of the distribution contemplated by such
Registration Statement if it relates to a Company Sale Event, and (vii) if
at any time the representations and warranties of the Company under Section
7 cease to be true and correct in all material respects.
(d) In the event of the issuance of any stop order suspending the
effectiveness of such Registration Statement or of any order suspending or
preventing the use of any related Prospectus or suspending the
qualification of any shares of Common Stock included in such Registration
Statement for sale in any jurisdiction, the Company will use its reasonable
best efforts to obtain its withdrawal at the earliest possible time.
(e) The Company agrees to otherwise use its best efforts to comply
with all applicable rules and regulations of the Commission, and make
available to the Security Holders, as soon as reasonably practicable, but
not later than fifteen months after the effective date of such Registration
Statement, an earnings statement covering the period of at least twelve
months beginning with the first full fiscal quarter after the effective
date of such Registration Statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act.
(f) The Company shall, subject to permitted "black-out" periods, upon
the happening of any event of the nature described in subsection
6.3(c)(ii), 6.3(c)(iii) or 6.3(c)(v), as expeditiously as reasonably
possible, prepare a supplement or post-effective amendment to the
applicable Registration Statement or a supplement to the related Prospectus
or any document incorporated therein by reference or file any other
required documents and deliver a copy thereof to each Securities Holder so
that, as thereafter delivered to the purchasers of the Registrable Common
or Registrable Litigation Shares being sold thereunder, such Prospectus
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
6.4 Certain Expenses. The Company shall pay all fees, disbursements
and expenses in connection with the Initial Underwriting, any Company Sale
Event, the Shelf Registration Statement and the Litigation Shelf and the
performance of its obligations hereunder (including those pursuant to
Section 3.2 hereof), including, without limitation, to the extent
applicable, all registration and filing fees, printing, messenger and
delivery expenses, fees of the Company's auditors, listing fees, registrar
and transfer agents' fees, reasonable fees and disbursements of Securities
Holders' Counsel in connection with the registration but not the
disposition of the Registrable Common and Registrable Litigation Shares
(provided that the Company shall have no obligation to reimburse the fees
and disbursements of any other counsel to any Securities Holder), fees and
disbursements for counsel for the Company, fees and expenses (including
reasonable fees and disbursements of counsel) of complying with applicable
state securities or "Blue Sky" laws and the fees of the NASD in connection
with its review of any offering contemplated in any such Registration
Statement, but not including underwriting discounts and commissions or
brokerage commissions on any shares of Registrable Common or Registrable
Litigation Shares sold in any such offering.
6.5 Reports Under the Exchange Act. From the date hereof to the
Termination Date, the Company agrees to:
(i) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act or
the Exchange Act; and
(ii) furnish to any Securities Holder, forthwith upon request (A)
a written statement by the Company that it has complied with the
current public information and reporting requirements of Rule 144 and
the Exchange Act, (B) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by
the Company, and (C) such other information as may be reasonably
requested in connection with any Securities Holder availing itself of
any rule or regulation of the Commission which permits the selling of
any such securities without Registration or pursuant to such rule or
regulation.
(b) If any Securities Holder is required to file a Form 144 with
respect to any sale of shares of Registrable Common or Registrable
Litigation Shares, such Securities Holder shall promptly deliver to the
Company a copy of such completed Form 144 filed with the Commission.
6.6 Limitations on Subsequent Registration Rights. From the date
hereof to the Termination Date, the Company shall not, without the prior
written consent of Securities Holders owning a majority of the shares of
Registrable Common and Registrable Litigation Shares held by Securities
Holders at such time, enter into any agreement (other than this Agreement)
which would allow any holder or prospective holder of Common Stock to
include such securities in the Shelf Registration Statement or the
Litigation Shelf, or which would provide any holder or prospective holder
of Common Stock piggyback registration rights for such Common Stock unless
the piggyback registration rights provided to the Securities Holders
hereunder shall have priority in the event of any cutback.
6.7 Indemnification and Contribution. In connection with (x) the
Shelf Registration Statement and the Litigation Shelf, subsections
6.7(a)(i), (ii) and (v), 6.7(c) and 6.5(e) hereof shall be in full force
and effect upon the effective date of the Shelf Registration Statement or
the Litigation Shelf, as the case may be, and (y) a Registration Statement
which covers the Initial Underwriting or Registrable Common being sold by
Piggybacking Securities Holders or in connection with an underwritten
offering pursuant to the Shelf Registration Statement under subsection 3.2,
provisions substantially in conformity with the following provisions shall
be contained in the related Purchase Agreement unless the parties to such
Purchase Agreement agree otherwise (references in such provisions to a
Securities Holder or an underwriter being references to a Securities Holder
or an underwriter participating in the offering covered by such
Registration Statement):
(i) The Company agrees to indemnify and hold harmless each
Securities Holder and each Person, if any, who controls such
Securities Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, and each of their respective
officers, directors and employees against any losses, claims, damages
or liabilities, joint or several, or actions in respect thereof to
which such Securities Holder or Persons may become subject under the
Securities Act, or otherwise (collectively, "Losses"), insofar as such
Losses arise out of, or are based upon, any untrue statement or
alleged untrue statement of any material fact contained in such
Registration Statement, any related Preliminary Prospectus or any
related Prospectus, or any amendment or supplement thereto, or arise
out of, or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse such
Securities Holder or Persons for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such Losses; provided, however, that the Company shall
not be so liable to the extent that any such Losses arise out of, or
are based upon, an untrue statement or alleged untrue statement of a
material fact or an omission or alleged omission to state a material
fact in said Registration Statement in reliance upon, and in
conformity with, written information furnished to the Company by or on
behalf of such Securities Holder specifically for use therein.
Notwithstanding the foregoing, the Company shall not be liable in any
such instance to the extent that any such Losses arise out of, or are
based upon, an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus if
(i) after the Company had made available sufficient number of copies
of the Prospectus, such Securities Holder failed to send or deliver a
copy of the Prospectus with or prior to the delivery of written
confirmation of the sale of Registrable Common to the Person asserting
such Losses or who purchased the Registrable Common the purchase of
which is the basis of the action if, in either instance, such delivery
by such Securities Holder is required by the Securities Act and
(ii) the Prospectus would have corrected such untrue statement or
alleged untrue statement or alleged omission; and the Company shall
not be liable in any such instance to the extent that any such Losses
arise out of, or are based upon, an untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state
a material fact in the Prospectus, if such untrue statement or alleged
untrue statement, omission or alleged omission is corrected in an
amendment or supplement to the Prospectus and if, having previously
been furnished by or on behalf of the Company with copies of the
Prospectus as so amended or supplemented, such Securities Holder
thereafter fails to deliver such Prospectus as so amended or
supplemented, prior to or concurrently with the sale of Registrable
Common if such delivery by such Securities Holder is required by the
Securities Act. This indemnity agreement will be in addition to any
liability which the Company may otherwise have and shall remain in
full force and effect regardless of any investigation made by or on
behalf of such holder or any such Person and shall survive the
Termination Date and the transfer of Registrable Common by such holder
as otherwise permitted hereby.
(ii) Each Securities Holder severally agrees to indemnify and
hold harmless the Company, each other Securities Holder and each
Person, if any, who controls the Company or such other Securities
Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, and their respective officers,
directors and employees, against any Losses to which the Company, such
other Securities Holder or such Persons may become subject under the
Securities Act, or otherwise, insofar as such Losses arise out of, or
are based upon, any untrue statement or alleged untrue statement of
any material fact contained in such Registration Statement, any
related Preliminary Prospectus or any related Prospectus, or any
amendment or supplement thereto, or arise out of, or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Company, such other
Securities Holder or such Persons for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such Losses, in each instance to the extent, but only to
the extent, that any such Losses arise out of, or are based upon, an
untrue statement or alleged untrue statement of a material fact or an
omission or alleged omission to state a material fact in said
Registration Statement, said Preliminary Prospectus or said
Prospectus, or any said amendment or supplement thereto in reliance
upon, and in conformity with, written information furnished to the
Company by or on behalf of such Securities Holder specifically for use
therein; provided, however, that the liability of each Securities
Holder under this subsection 6.7(a)(ii) shall be limited to an amount
equal to the proceeds of the sale of shares of Registrable Common by
such Securities Holder in the offering which gave rise to the
liability (net of all costs and expenses (including underwriting
commissions and disbursements) paid or incurred by such Securities
Holder in connection with the registration, if any, and sale).
(iii) The Company will indemnify and hold harmless each
underwriter and each Person, if any, who controls any such underwriter
within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, and their respective officers, directors and
employees, against any Losses to which such underwriter or Persons may
become subject under the Securities Act, or otherwise, insofar as such
Losses arise out of, or are based upon, any untrue statement or
alleged untrue statement of any material fact contained in such
Registration Statement, any related Preliminary Prospectus or any
related Prospectus, or any amendment or supplement thereto, or arise
out of, or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse such
underwriter or Persons for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any
such Losses; provided, however, that (i) the Company shall not be so
liable to the extent that any such Losses arise out of, or are based
upon, an untrue statement or alleged untrue statement of a material
fact or an omission or alleged omission to state a material fact in
said Registration Statement, said Preliminary Prospectus or said
Prospectus or any said amendment or supplement in reliance upon, and
in conformity with, written information furnished to the Company by or
on behalf of such underwriter specifically for use therein; and
(ii) such indemnity with respect to any Preliminary Prospectus shall
not inure to the benefit of any underwriter (or any Person controlling
such underwriter) from whom the Person asserting any such Losses
purchased shares of Common Stock if such Person did not receive a copy
of the Prospectus (or the Prospectus as amended or supplemented) at or
prior to the confirmation of the sale of such shares of Common Stock
to such Person in any case where such delivery is required by the
Securities Act and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact in such Preliminary
Prospectus was corrected in the Prospectus (or the Prospectus as
amended or supplemented); provided, further, that the Company shall
only be required to provide the indemnification described in this
subsection 6.7(a)(iii) to an underwriter and each Person, if any, who
controls such underwriter, and their respective officers, directors
and employees, if such underwriter agrees to indemnification
provisions substantially in the form set forth in subsection 6.7(b).
(iv) Each Securities Holder will severally indemnify and hold
harmless each underwriter and each Person, if any, who controls such
underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, and their respective officers,
directors and employees, against any Losses to which such underwriter
or such Persons may become subject under the Securities Act, or
otherwise, insofar as such Losses arise out of, or are based upon, any
untrue statement or alleged untrue statement of any material fact
contained in such Registration Statement, any related Preliminary
Prospectus or any related Prospectus, or any amendment or supplement
thereto, or arise out of, or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and will reimburse such underwriter or such Persons for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such Losses, in each case to the
extent, but only to the extent, that any such Losses arise out of, or
are based upon, an untrue statement or alleged untrue statement of a
material fact or an omission or alleged omission to state a material
fact in said Registration Statement in reliance upon, and in
conformity with, written information furnished to the Company by or on
behalf of such Securities Holder specifically for use therein;
provided, however, that such Securities Holder shall only be required
to provide the indemnification described in this subsection 6.7(a)(iv)
to an underwriter and each Person, if any, who controls such
underwriter if such underwriter agrees to indemnification provisions
substantially in the form set forth in subsection 6.7(b); and
provided, further, that such Securities Holder shall not be liable in
any such case to the extent that any such Losses arise out of, or are
based upon, an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus if
(i) such underwriter failed to send or deliver a copy of the
Prospectus with or prior to the delivery of written confirmation of
the sale of Registrable Common to the Person asserting such Loss who
purchased the Registrable Common which is the subject thereof where
such delivery is required by the Securities Act and (ii) the
Prospectus would have corrected such untrue statement or omission or
alleged untrue statement or alleged omission; and such Securities
Holder shall not be liable in any such case to the extent that any
such Losses arises out of, or are based upon, an untrue statement or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in the Prospectus, if such untrue
statement or alleged untrue statement, omission or alleged omission is
corrected in an amendment or supplement to the Prospectus and if,
having previously been furnished by or on behalf of such Securities
Holder with copies of the Prospectus as so amended or supplemented,
such underwriter thereafter fails to deliver such Prospectus as so
amended or supplemented, prior to or concurrently with the sale of
Registrable Common to the Person asserting such Loss who purchased
such Registrable Common which is the subject thereof or where such
delivery is required by the Securities Act, and provided, further,
that the liability of such Securities Holder under this subsection
6.7(a)(iv) shall be limited to an amount equal to the proceeds of the
sale of shares of Common Stock by such Securities Holder in the
offering which gave rise to the liability (net of all costs and
expenses (including underwriting commissions and disbursements) paid
or incurred by such Securities Holders in connection with the
registration, if any, and sale).
(v) Promptly after any Person entitled to indemnification under
this subsection 6.7 or such Purchase Agreement receives notice of any
claim or the commencement of any action, the indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying
party pursuant to the indemnification provisions of this
subsection 6.7 or such Purchase Agreement, notify the indemnifying
party in writing of the claim or the commencement of such action;
provided, however, that the failure or delay to so notify the
indemnifying party shall not relieve it from any liability which it
may have to the indemnified party hereunder unless and to the extent
such failure or delay has materially prejudiced the rights of the
indemnifying party and shall not, in any event, relieve it from any
liability which it may have to the indemnified party other than
pursuant to the indemnification provisions of this subsection 6.7 or
such Purchase Agreement. If any such claim or action shall be brought
against an indemnified party, and it has notified the indemnifying
party thereof in accordance with the terms hereof, the indemnifying
party shall be entitled to participate in the defense of such claim,
or, to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party, upon written
notice to the indemnified party of such assumption. After notice from
the indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, (i) the indemnifying party
shall not be liable to the indemnified party pursuant to the
indemnification provisions hereof or of such Purchase Agreement for
any legal or other expenses subsequently incurred by the indemnified
party in connection with the defense thereof other than reasonable
costs of investigation, (ii) the indemnifying party shall not be
liable for the costs and expenses of any settlement of such claim or
action unless such settlement was effected with the consent of the
indemnifying party (which consent shall not be unreasonably withheld
or delayed) and (iii) the indemnified party shall be obligated to
cooperate with the indemnifying party in the investigation of such
claim or action; provided, however, that any indemnified party
hereunder shall have the right to employ separate counsel and to
participate in the defense of such claim assumed by the indemnifying
party, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (a) the employment of such
counsel has been specifically authorized in writing by the
indemnifying party, (b) the indemnifying party shall have failed to
assume the defense of such claim from the Person entitled to
indemnification hereunder and failed to employ counsel within a
reasonable period following such assumption, or (c) in the reasonable
judgment of the indemnified party, based upon advice of its counsel, a
material conflict of interest may exist between such indemnified party
and the indemnifying party with respect to such claims or there may be
one or more material legal defenses available to it which are
different from or additional to those available to the indemnifying
party (in which case, if the indemnified party notifies the
indemnifying party in writing that the indemnified party elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of
such claim on behalf of the indemnified party). Notwithstanding the
foregoing, the Securities Holders (together with their respective
controlling Persons and officers, directors and employees) and the
underwriters (together with their respective controlling Persons and
officers, directors and employees) shall, each as a separate group,
have the right to employ at the expense of the Company only one
separate counsel for each such group to represent such Securities
Holders and such underwriters (and their respective controlling
Persons and officers, directors and employees) who may be subject to
liability arising out of any one action (or separate but substantially
similar actions in the same jurisdiction arising out of the same
general allegations or circumstances) in respect of which indemnity
may be sought by such Securities Holders and underwriters against the
Company pursuant to the indemnification provisions of this
subsection 6.7 or such Purchase Agreement. If such defense is not
assumed by the indemnifying party, the indemnifying party will not be
subject to any liability for any settlement made without its consent
(but such consent will not be unreasonably withheld or delayed). No
indemnifying party will consent to entry of any judgment or enter into
any settlement that 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.
All fees and expenses to be paid by the indemnifying party hereunder
shall be paid a commercially reasonable time after they are billed to
the indemnified party, subject to receipt of a written undertaking
from the indemnified party to repay such fees and expenses if
indemnity is not ultimately determined to be available to such
indemnified party under this subsection 6.7.
(b) As a condition to agreeing in any Purchase Agreement to the
indemnification provisions set forth in subsections 6.7(a)(iii) and
6.7(a)(iv) in favor of an underwriter participating in the offering covered
by the related Registration Statement, its controlling Persons, if any, and
their respective officers, directors and employees, the Company and the
Securities Holders participating in an offering pursuant to such
Registration Statement may require that such underwriter agree in the
Purchase Agreement to provisions substantially in the form set forth in
subsection 6.7(a)(v) and to severally indemnify and hold harmless the
Company, each Securities Holder participating in such offering, each
Person, if any, who controls the Company or such Securities Holder within
the meaning of the Securities Act, and their respective officers, directors
and employees against any Loss to which the Company, such Securities Holder
or such Persons may become subject under the Securities Act, or otherwise,
insofar as such Losses arise out of, or are based upon, any untrue
statement or alleged untrue statement of any material fact contained in
such Registration Statement in which such underwriter is named as an
underwriter, any related Preliminary Prospectus or any related Prospectus,
or any amendment or supplement thereto, or arise out of, or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and to reimburse the Company, such Securities Holder or such
Persons for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such Losses in each case to
the extent, but only to the extent, that any such Loss arises out of, or
are based upon, an untrue statement or alleged untrue statement of a
material fact in said Registration Statement, said Preliminary Prospectus
or said Prospectus or any said amendment or supplement in reliance upon,
and in conformity with, written information furnished to the Company by or
on behalf of such underwriter specifically for use therein.
(c) In order to provide for just and equitable contribution between
the Company and such Securities Holders in circumstances in which the
indemnification provisions of this subsection 6.7 or the related Purchase
Agreement are for any reason insufficient or inadequate to hold the
indemnified party harmless, the Company and such Securities Holders shall
contribute to the aggregate Losses (including any investigation, legal and
other fees and expenses reasonably incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting any contribution actually received from
Persons other than the Company and such Securities Holders) to which the
Company and one or more of its directors or its officers who sign such
Registration Statement or such Securities Holders or any controlling Person
of any of them, or their respective officers, directors or employees may
become subject, under the Securities Act, under any other statute, at
common law or otherwise, insofar as such Losses or actions in respect
thereof arise out of, or are based upon, any untrue statement or alleged
untrue statement of any material fact contained in such Registration
Statement or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading. Such
contributions shall be in such amounts that the portion of such Losses for
which each such Securities Holder shall be responsible under this
subsection 6.7(c) shall be limited to the portion of such Losses which are
directly attributable to an untrue statement of a material fact or an
omission to state a material fact in said Registration Statement in
reliance upon, and in conformity with, written information furnished to the
Company by or on behalf of any such Securities Holder specifically for use
therein, and the Company shall be responsible for the balance of such
Losses; provided, however, that the liability of each such Securities
Holder to make such contribution shall be limited to an amount equal to the
proceeds of the sale of shares of Registrable Common by such Securities
Holder in the offering which gives rise to the liability (net of all cost
and expenses (including underwriting commissions and disbursements) paid or
incurred in connection with the registration, if any, and sale). As among
themselves, such Securities Holders agree to contribute to amounts payable
by other such Securities Holders in such manner as shall, to the extent
permitted by law, give effect to the provisions in subsection 6.7(a)(ii)
and those provisions in the Purchase Agreement comparable to such
subsection 6.7(a)(ii). The Company and such Securities Holders agree that
it would not be just and equitable if their respective obligations to
contribute pursuant to this subsection were to be determined by pro rata
allocation (other than as set forth above) of the aggregate Losses by
reference to the proceeds realized by such Securities Holders in a sale
pursuant to said Registration Statement or said Prospectus or by any other
method of allocation which does not take account of the considerations set
forth in this subsection 6.7(c). No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution under this subsection from any
Person who was not guilty of such fraudulent misrepresentation.
(d) The Company and the Securities Holders participating in an
offering pursuant to a Registration Statement agree that, if the
underwriters participating in a Public Sale Event are agreeable, the
Purchase Agreement, if any, relating to such Registration Statement shall
contain provisions to the effect that in order to provide for just and
equitable contribution between such underwriters on the one hand and the
Company and such Securities Holders on the other hand in circumstances in
which the indemnification provisions of such Purchase Agreement are for any
reason insufficient or inadequate to hold the indemnified party harmless,
the Company and such Securities Holders on the one hand and such
underwriters on the other hand will contribute on the basis herein set
forth to the aggregate Losses, (including any investigation, legal and
other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or claims asserted, but after
deducting any contribution actually received from Persons other than the
Company and such Securities Holders and such underwriters) to which the
Company and one or more of its directors or its officers who sign such
Registration Statement or such Securities Holders or such underwriters or
any controlling Person of any of them, or their respective officers,
directors or employees may become subject, under the Securities Act, under
any other statute, at common law or otherwise insofar as such Losses, arise
out of, or are based upon an untrue statement or alleged untrue statement
of any material fact contained in such Registration Statement, any related
Preliminary Prospectus or any related Prospectus, or any amendment or
supplement thereto, or arise out of, or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading. Such
contribution shall be in such proportions as is appropriate to reflect the
relative benefits received by the Company and such Securities Holders on
the one hand and such underwriters on the other hand from the offering of
the shares of Common Stock covered by such offering. The relative benefits
received by the Company and such Securities Holders on the one hand and
such underwriters on the other hand shall be deemed to be in the same
proportion as the aggregate total net proceeds from the offering (before
deducting expenses) received by the Company and such Securities Holders
bear to the total underwriting discounts and commissions received by such
underwriters for such offering. Notwithstanding the provisions set forth
above, no underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the shares of Common Stock
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution under the provision set forth above
from any Person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company and the Securities Holders under
the provisions of this subsection 6.7 and provisions in any Purchase
Agreement substantially similar to subsections 6.7(a), 6.7(b) 6.7(c) or
6.7(d) shall survive the termination of any or all of the other provisions
of this Agreement or such Purchase Agreement.
6.8 Transfer of Rights Under this Agreement; Transfers of Registrable
Common. (a) During the period from the date hereof to the Termination
Date, the rights and obligations of a Securities Holder under this
Agreement may be transferred by a Securities Holder to a transferee of
Registrable Common or Registrable Litigation Shares (subject to the
provisos to the definitions of Registrable Common and Registrable
Litigation Shares), provided that, within a reasonable period of time (but
in no event less than five (5) days) prior to such transfer, (i) the
transferring Securities Holder shall have furnished the Company and the
other Securities Holders written notice of the name and address of such
transferee and the number of shares of Registrable Common or Registrable
Litigation Shares with respect to which such rights are being transferred
and (ii) such transferee shall furnish the Company and the Securities
Holders (other than the transferring Securities Holder) a copy of a duly
executed Supplemental Addendum by which such transferee (A) assumes all of
the obligations and liabilities of its transferor hereunder, (B) enjoys all
of the rights of its transferor hereunder and (C) agrees itself to be bound
hereby.
(b) If the stock certificates of a transferring Securities Holder
bear a restrictive legend pursuant to subsection 6.10, the stock
certificates of its transferee to whom the rights hereunder are being
transferred shall, subject to such subsection 6.10, also bear such a
restrictive legend.
(c) Except with respect to transfers pursuant to paragraph (a) above,
and subject to the provisions of paragraph (b) above, a transferee of
Registrable Common or Registrable Litigation Shares shall neither assume
any liabilities or obligations nor enjoy any rights hereunder and shall not
be bound by any of the terms hereof.
(d) Each Securities Holder hereby agrees that any transfer of shares
of Registrable Common or Registrable Litigation Shares by such Securities
Holder shall be made (i) in compliance with, or in a transaction exempt
from, the registration requirements set forth in the Securities Act and
(ii) in compliance with all other applicable laws. The Company may
request, as a condition to the transfer of any Registrable Common or
Registrable Litigation Shares, that the transferring Securities Holder
provide the Company with (A) evidence that the proposed transferee is an
"accredited investor" as defined in Rule 501 under the Securities Act and
appropriate "private placement" representations pursuant to Section 4(2) of
the Securities Act, and (B) an opinion of securities counsel reasonably
satisfactory to it with regard to compliance with this subsection (d).
6.9 Restrictive Legend. Each certificate evidencing shares of
Registrable Common or Registrable Litigation Shares shall, unless and until
such shares are sold or otherwise transferred pursuant to an effective
Registration Statement under the Securities Act or unless, in the absence
of such a Registration Statement, the Company receives an opinion of
counsel reasonably satisfactory to it that the restrictive legend set forth
below may be removed without violation of applicable law (including,
without limitation, the Securities Act), be stamped or otherwise imprinted
with a conspicuous legend in substantially the following form:
"The transfer of the securities evidenced by this
certificate is subject to a Registration Rights Agreement dated
as of July 21, 1996, with the issuer as from time to time
amended, and no transfer of the securities evidenced by this
certificate shall be valid or effective unless made in accordance
with said Agreement. A copy of said agreement is on file and may
be inspected at the principal executive office of the issuer.
The securities evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended, and may
not be offered or sold unless there is in effect with respect
thereto a registration statement under said Act or unless an
opinion of counsel reasonably satisfactory to the issuer has been
furnished to the issuer that registration is not required under
said Act."
SECTION 7. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
In connection with the Shelf Registration Statement and the Litigation
Shelf, the Company shall, on the respective date of effectiveness of each
such Registration Statement with the Commission (the "effective date"),
certify to each Securities Holder in a certificate of a Responsible Officer
of the Company to the effect that the representations and warranties set
forth below are true and correct at and as of such effective date. In
connection with any other Sale Event in which Securities Holders
participate, except as otherwise may be agreed upon by such participating
Securities Holders and the Company, the Company shall represent and warrant
in the Purchase Agreement relating to such Sale Event to the Securities
Holders and any underwriters participating in such Sale Event as follows
(except as otherwise indicated, each reference in this Section to the
"Registration Statement" shall refer to the Shelf Registration Statement,
the Litigation Shelf or a Registration Statement in respect of any other
such Sale Event in which Securities Holders participate, as the case may
be, including all information deemed to be a part thereof, as amended, and
each reference to "the Prospectus" shall refer to the related Prospectus):
(a) At the time of filing, the Registration Statement (i) complied in
all material respects with the applicable requirements of the Securities
Act and (ii) did not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
in order to make the statements therein in light of the circumstances under
which they were made not misleading; provided, however, that the Company
makes no representations or warranties as to the information contained in
or omitted from the Registration Statement in reliance upon and in
conformity with the information furnished in writing to the Company by or
on behalf of any Securities Holder specifically for use in connection with
the preparation thereof or any information furnished in writing to the
Company by or on behalf of any underwriter specifically for use in
connection with the preparation thereof, other than that the Company has no
knowledge of any such untrue statement or omission in respect of such
information.
(b) (i) When the Registration Statement became (in the case of a
Registration Statement filed pursuant to Rule 415) or shall become
effective, the Registration Statement did or will comply in all material
respects with the applicable requirements of the Securities Act; (ii) when
the Prospectus is filed in accordance with Rule 424(b), the Prospectus (and
any supplements thereto) will comply in all material respects with the
applicable requirements of the Securities Act; (iii) the Registration
Statement did not or will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and (iv)
the Prospectus, if not filed pursuant to Rule 424(b), did not or will not,
and on the date of any filing pursuant to Rule 424(b), the Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement, or the Prospectus
(or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Securities Holder specifically for use in connection with the preparation
of the Registration Statement or the Prospectus (or any supplement thereto)
or any information furnished in writing to the Company by or on behalf of
any underwriter specifically for use in connection with the preparation of
the Registration Statement or the Prospectus (or any supplement thereto),
other than that the Company has no knowledge of any such untrue statement
or omission in respect of such information.
(c) The public accountants who certified the Company's financial
statements in the Registration Statement are independent certified public
accountants within the meaning of the Securities Act; the historical
consolidated financial statements, together with the related schedules and
notes, forming part of the Registration Statement and the Prospectus comply
in all material respects with the requirements of the Securities Act and
have been prepared, and present fairly the consolidated financial
condition, results of operations and changes in financial condition of the
Company and its consolidated subsidiaries at the respective dates and for
the respective periods indicated, in accordance with generally accepted
accounting principles applied consistently throughout such periods (except
as specified therein); and the historical consolidated financial data set
forth in the Prospectus is derived from the accounting records of the
Company and its consolidated subsidiaries, and is a fair presentation of
the data purported to be shown; and the pro forma consolidated financial
statements (if any), together with the related notes, forming part of the
Registration Statement and the Prospectus, comply in all material respects
with the requirements of Regulation S-X under the Securities Act.
SECTION 8. REPRESENTATIONS AND WARRANTIES OF THE SECURITIES HOLDERS.
Each participating Securities Holder shall, in connection with a
Public Sale Event, if required by the terms of a Purchase Agreement, if
any, relating to such Public Sale Event, for itself severally and not
jointly represent and warrant to the underwriter or underwriters and each
other Securities Holder participating in such Public Sale Event as follows:
(a) Such Securities Holder has all requisite power and authority (or
with respect to the FDIC statutory authority) to enter into and carry out
the terms of this Agreement and such Purchase Agreement and the other
agreements and instruments related to such agreements to which it is a
party.
(b) Each of this Agreement and such Purchase Agreement has been duly
authorized, executed and delivered by or on behalf of such Securities
Holder and constitutes the legal, valid and binding obligation of such
Securities Holder, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles.
(c) Such Securities Holder, immediately prior to any sale of shares
of Registrable Common pursuant to such Purchase Agreement, will have good
title to such shares of Registrable Common, free and clear of all liens,
encumbrances, equities or claims (other than those created by this
Agreement); and, upon payment therefor, good and valid title to such shares
of Registrable Common will pass to the purchaser thereof, free and clear of
any lien, charge or encumbrance created or caused by such Securities
Holder.
(d) Such Securities Holder has not taken and will not take, directly
or indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result in, under the Exchange Act
or other applicable law, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of shares of
Registrable Common.
(e) Written information furnished by or on behalf of such Securities
Holder to the Company expressly for use in the Registration Statement or
related Prospectus or amendment thereof or supplement thereto will not
contain as of the effective date of such Registration Statement or as of
the date of any Prospectus or as of the date of any amendment thereof or
supplement thereto any untrue statement of a material fact or omit to state
any material fact required be stated or necessary to make the statements in
such information not misleading.
SECTION 9. DELIVERY OF COMFORT LETTERS AND LEGAL OPINIONS.
(a) On (i) the respective dates that the Shelf Registration Statement
and the Litigation Shelf are declared effective by the Commission, (ii) the
date a post-effective amendment to the Shelf Registration Statement or the
Litigation Shelf, if any, covering the most recent annual or quarterly
financial statements of the Company is declared effective by the Commission
and (iii) the date that a Registration Statement relating to a Sale Event
in which Securities Holders participate is declared effective by the
Commission, the Company shall comply with the following:
(x) The Company shall have received, and delivered to each
Securities Holder participating in such Sale Event, a copy of a "comfort"
letter or letters, or updates thereof according to customary practice, of
the independent certified public accountants who have certified the
Company's financial statements included in the Registration Statement
covering substantially the same matters with respect to the Registration
Statement (including the Prospectus) and with respect to events subsequent
to the date of the Company's financial statements as are reasonably
customarily covered in accountants' letters delivered to underwriters in
underwritten public offerings of securities. The Company will use its best
efforts to cause such "comfort" letters to be addressed to such Securities
Holders.
(y) Each Securities Holder participating in such offering
shall have received an opinion and any updates thereof of outside counsel
to the Company reasonably satisfactory to such Securities Holders and any
underwriters or purchasers covering substantially the same matters as are
customarily covered in opinions of issuer's counsel delivered to
underwriters in underwritten public offerings of securities, addressed to
each of such Securities Holders and any underwriters or purchasers
participating in such offering and dated the closing date thereof.
(b) On the Closing Date, the Company shall deliver to each Initial
Securities Holder an opinion of Xxxxxx, Xxxx & Xxxxxxxx, special outside
counsel to the Company, substantially to the effect that:
(i) The Company has the corporate power and authority to enter
into and carry out the terms of this Agreement; and
(ii) This Agreement has been duly authorized, executed and
delivered by or on behalf of the Company and, assuming the due
authorization, execution and delivery thereof by the other parties hereto,
constitutes the valid and binding obligation of the Company, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
(c) On the Closing Date, the FDIC shall deliver to the Company an
opinion of the General Counsel of the FDIC, substantially to the effect
that:
(i) The FDIC has statutory authority to enter into and carry out
the terms of this Agreement; and except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting the enforcement of creditors' rights generally and by
general equitable principles.
(ii) This Agreement has been duly authorized, executed and
delivered by or on behalf of the FDIC and, assuming the due authorization,
execution and delivery thereof by the other parties thereto, constitutes
the valid and binding obligation of the FDIC, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles.
(d) On the Closing Date the Partnership shall deliver to the Company
an opinion of Xxxxx, Xxxx & Xxxxxxx, special counsel to the Partnership,
substantially to the effect that:
(i) The Partnership has all requisite power and authority to
enter into and carry out the terms of this Agreement; and
(ii) This Agreement has been duly authorized, executed and
delivered by or on behalf of the Partnership and, assuming the due
authorization, execution and delivery thereof by the other parties thereto,
constitutes the valid and binding obligation of the Partnership, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
SECTION 10. MISCELLANEOUS.
10.1 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission), and shall be mailed by United States registered
mail, postage prepaid, return receipt requested, sent by facsimile or
delivered by hand or by courier or overnight delivery service. Unless
otherwise expressly provided herein, all such notices, requests and demands
shall be deemed to have been duly given or made, as the case may be,
(a) five (5) days after deposit in the United States mail, (b) when
actually delivered by hand or by courier or overnight delivery service to
the designated address, or, (c) in the case of facsimile transmission, when
received and telephonically confirmed. All notices shall be addressed as
follows or to such other address as may be hereafter designated in writing
by the respective parties hereto:
The Company: Xxxx X. Xxxxxxx
Senior Vice President
Washington Mutual, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
with copies to: Xxxx X. Baker,
Gibson, Xxxx & Xxxxxxxx
One Xxxxxxxxxx Street, Telesis Tower
Xxx Xxxxxxxxx, XX 00000-0000
Xxx X. Xxxxxxx, Esq.
Xxxxxx Pepper & Shefelman
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
The Securities Holders:
Keystone Holdings Partners, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxx Xxxxx, XX 00000
Attn: Xxx X Xxxxxx
Federal Deposit Insurance Corporation
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attn: Director, Division of Resolutions
with copies to: Legal Division
Federal Deposit Insurance Corporation
0000 X Xxxxxx, X.X., Xxxx X-00000
Xxxxxxxxxx, X.X. 20434-00001
Attn: Xxxxx X. Xxxxxx, Senior Counsel
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxx
Xxxxx, Xxxx & Xxxxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Xxxxx Xxxxxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxx X. Xxxxxx
Telecopy (000) 000-0000
10.2 Amendments and Waivers. The Securities Holders of not less than
75% of the Registrable Common and Registrable Litigation Shares held or
beneficially owned by Securities Holders at any point in time and the
Company may from time to time enter into written amendments, supplements or
modifications to this Agreement for the purpose of adding any provisions
hereto or changing in any manner the rights of the Securities Holders or
the Company hereunder, and the Securities Holders of no less than 75% of
the Registrable Common and Registrable Litigation Shares held or
beneficially owned by Securities Holders at any time may execute a written
instrument waiving, on such terms and conditions as may be specified
therein, any of the requirements of this Agreement which are solely for the
benefit of the Securities Holders and where such waiver does not adversely
affect the interests of the Company; provided, however, that no such waiver
and no such amendment, supplement or modification shall (i) adversely
affect the rights of a Securities Holder under Section 2, 3, 4 or 5 hereof
or (ii) amend, modify or waive any provision of Section 6 or this
subsection 10.2, in each case without the written consent of each
Securities Holder. Any such waiver and any such amendment, modification or
supplement shall apply equally to each of the Securities Holders and the
Company.
10.3 Termination. This Agreement and the respective obligations and
agreements of the parties hereto, except as otherwise expressly provided
herein, shall terminate on the Termination Date.
10.4 Survival of Representations and Warranties. Except as they may
by their terms relate to an earlier date, all representations and
warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the termination of any or all
of the provisions of this Agreement.
10.5 Headings. The descriptive headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
10.6 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all
of such counterparts shall together one and the same agreement.
10.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CHOICE OF LAW PROVISIONS.
10.8 Adjustment of Shares. Each reference to a number of shares of
Common Stock in this Agreement shall be adjusted proportionately to reflect
any stock dividend, subdivision, split or reverse split or the like
affected with respect to all outstanding shares of Common Stock.
10.9 No Inconsistent Agreements. The Company will not on or after the
date of this Agreement enter into, and is not presently a party to, any
agreement with respect to its securities which is inconsistent with the
rights granted to the Securities Holders in this Agreement or otherwise
conflicts with the provisions hereof. The rights granted to the Securities
Holders pursuant to this Agreement shall be superior to, and take
precedence over, any similar rights granted to any other Person by the
Company subsequent to the date hereof.
10.10 Severability. Any provisions of this Agreement prohibited
or rendered unenforceable by any applicable law of any jurisdiction shall
as to such jurisdiction be ineffective to the extent of such prohibition or
unenforceability, without invalidating the remaining provisions hereof, any
such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
10.11 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns to each
of the parties hereunder as otherwise provided herein.
10.12 Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto in respect of the matters
referred to herein and supersedes all prior agreements and understandings
among the parties hereto with respect to the subject matter hereof.
10.13 Result if No Merger. Notwithstanding any provision of this
Agreement, or any rights that the Initial Securities Holders may have
hereunder, if the Closing does not occur for any reason, this Agreement
shall be terminated, shall be deemed null and void ab initio, and the
Company shall have no obligations or liabilities whatsoever to any Person
under any of the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
WASHINGTON MUTUAL, INC.
By: /s/ Xxxxx X. Tall
Name: Xxxxx X. Tall
Title: Executive Vice President
KEYSTONE HOLDINGS PARTNERS, L.P.
By: KH Group Management, Inc., Its General
Partner
By: /s/ Xxx X. Xxxxxx
Name: Xxx X. Xxxxxx
Title: Vice President
FEDERAL DEPOSIT INSURANCE CORPORATION, AS MANAGER
OF THE FSLIC RESOLUTION FUND
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Assistant Director
