Exhibit 10.2
Form of Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT dated as of _______ __, 1997
(the "Agreement") among XXXXX RIVER CORPORATION OF VIRGINIA, a Virginia
corporation (the "Company") and the parties listed on the signature pages of
this Agreement (each a "Stockholder" and, collectively, the "Stockholders" and,
together with the Company, the "Parties") who will, as of the effective time of
the Merger (as defined below) be holders of shares of common stock, par value
$0.10 per share, of the Company (the "Common Shares") in such number as set
forth on Schedule I to this Agreement.
PRELIMINARY STATEMENTS
WHEREAS, Xxxxx River Delaware, Inc., a Delaware Corporation
and wholly owned subsidiary of the Company ("Merger Sub") will be merged with
and into Fort Xxxxxx Corporation, a Delaware corporation ("Fort Xxxxxx") (the
"Merger"), pursuant to an Agreement and Plan of Merger dated as of May 4, 1997
by and among the Company, Merger Sub and Fort Xxxxxx (the "Merger Agreement");
WHEREAS, the Stockholders will receive the Common Shares
pursuant to the Merger; and
WHEREAS, it is a condition to the obligations of the parties
to the Merger Agreement to consummate the Merger that this Agreement be entered
into by the Parties concurrently with the closing under the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained in this Agreement, the Parties hereby agree
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Terms used but not defined herein
are used herein as defined in the Merger Agreement. The following terms, as
used herein, have the following meanings:
(a) the "Commission" means the Securities and Exchange
Commission;
(b) "Demand Registration" has the meaning specified in Section
2.02;
(c) "Holder(s)" means the Stockholders and the transferees of
Registrable Securities which are affiliates of such transferring
Stockholder or, in the case of any transfers by AT&T Investment
Management Co., a successor trust or the trust for a successor plan in
connection with or following the reorganization of the pension plans or
trust of AT&T Corp. and Lucent Technologies Inc.;
(d) "Piggyback Registration" has the meaning specified in
Section 2.03;
(e) "Pooling Period" means the period commencing at the
effective time of the Merger and continuing until the date on which the
Company first publishes (in the form of a quarterly earnings report, an
effective registration statement filed with the Commission, a report to
the Commission on Form 10-K, 10-Q or 8-K, or any other public filing or
announcement) financial results covering at least 30 days of
post-Merger combined operations;
(f) "Registrable Securities" means (i) Common Shares issued or
issuable in the Merger to the Stockholders at the Effective Time and
(ii) any securities issued or issuable in respect of such Common Shares
by way of conversion, exchange, stock dividend, split or combination,
recapitalization, merger, consolidation, other reorganization or
otherwise; and
(g) "Subsidiary" or "Subsidiaries" means any corporation,
partnership, joint venture or other legal entity of which the Company
or such other person, as the case may be (either alone or through or
together with any other subsidiary), owns, directly or indirectly, 50%
or more of the stock or other equity interests the holders of which are
generally entitled to vote for the election of the Board of Directors
or other governing body of such corporation or other legal entity.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.01. Registrable Securities. The registration rights
provided herein apply to Registrable Securities, but with respect to any
particular Registrable Security, only
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so long as such security continues to be a Registrable Security. Any Registrable
Security will cease to be a Registrable Security when (i) a registration
statement covering such Registrable Security has been declared effective by the
Commission and such Registrable Security has been disposed of pursuant to such
effective registration statement, (ii) it is sold pursuant to Rule 144
promulgated under the Securities Act (or another exemption from the registration
requirements of the Securities Act), (iii) it has been otherwise transferred,
upon which transfer the Company has delivered a new certificate or other
evidence of ownership for such Registrable Security not bearing the legend
required pursuant to Section 6.09(a) of the Merger Agreement and it may be
resold without subsequent registration under the Securities Act (or under any
appropriate exemption) or any blue sky law then in force or (iv) it shall have
ceased to be outstanding.
SECTION 2.02. Demand Registration. (a) At any time during the
first three years after the Effective Time ("Initial Demand Period"), any Holder
of Registrable Securities may request in writing that the Company register in an
underwritten public offering under the Securities Act, all or part of such
Holder's Registrable Securities (a "Demand Registration") and the Company shall
thereupon promptly use its best efforts to effect, subject to the next sentence
and the provisions of Subsection 2.02(c), such Demand Registration. No Demand
Registration shall be effected until 30 days following the end of the Pooling
Period and the Company shall not be obligated (i) to effect a Demand
Registration in the six-month period following a sale of Registrable Securities
under a previous Demand Registration, (ii) subject to Section 2.04, to effect
more than three Demand Registrations or (iii) to effect a Demand Registration
with respect to less than $25,000,000 in aggregate fair market value of
Registrable Securities or such lesser amount as shall constitute all of the
Registrable Securities then held by the Holders. A request for Demand
Registration will specify the number of shares of Registrable Securities
proposed to be sold. A registration will not count as a Demand Registration
until the registration statement relating thereto has been declared effective by
the Commission.
(b) Promptly (but in no event more than 15 days) after receipt
of a request for registration of Registrable Securities pursuant to Section
2.02(a) hereof, the Company shall provide notice of such request to all Holders
of Registrable Securities on the books of the Company other than those who made
the request under Section 2.02(a), and each such Holder shall have the right,
within a period of fifteen (15) days after the date of such notice, to request
the Company to include in the offering to which the Demand Registration
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relates all or a portion of such Holder's Registrable Securities.
(c) In the event that the Holders making a request to be
included in a Demand Registration pursuant to Section 2.02(b) together with the
Holders who requested registration of Registrable Securities pursuant to Section
2.02(a) hereof (the "Participating Holders") have requested registration of
Registrable Securities in excess of the Maximum Demand Amount (as hereinafter
defined), if applicable, each Participating Holder shall have the right to
register up to such number of such Holder's Registrable Securities which bears
the same proportion to the Maximum Demand Amount as all of the Registrable
Securities owned by such Participating Holder bears to the total number of
Registrable Securities owned by all Participating Holders (hereinafter referred
to as a Participating Holder's "Eligible Securities"). To the extent that any
Participating Holder does not elect to have all or part of such Participating
Holder's Eligible Securities included in the offering for which Demand
Registration has been made, the Eligible Securities of the other Participating
Holders who elect to participate in the offering shall be increased pro rata
based on the number of Eligible Securities owned by each.
The "Maximum Demand Amount" means the maximum number of
Registrable Securities that the managing underwriter or underwriters of the
offering advise the Company may be included in such offering without materially
and adversely affecting the success of the offering.
(d) Xxxxxx Xxxxxxx Leveraged Equity Fund II L.P. ("MSLEF II"),
so long as it holds any Registrable Securities and is participating in a Demand
Registration, or in all other circumstances a majority of the Holders
participating in the Demand Registration, shall select the book-running and
other managing underwriters in connection with such offering and any additional
investment bankers and managers to be used in connection with the offering, in
each case which are reasonably satisfactory to the Company.
(e) Notwithstanding any provision of this Agreement to the
contrary, if advised by the managing underwriter or underwriters of an offering
of securities for the account of the Company, the Company shall not be required
to effect a separate registration pursuant to this Section 2.02 during the
period starting with the date of filing by the Company of, and ending on a date
60 days following the effective date of, a registration statement pertaining to
such offering for the account of the Company; provided that the Company shall
actively employ in good faith all reasonable efforts to cause
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such registration statement to become effective as soon as possible thereafter.
SECTION 2.03. Piggyback Registration. If during the Initial
Demand Period the Company proposes to file a registration statement under the
Securities Act with respect to an offering of (or including) Common Shares (i)
for the Company's own account (other than a registration statement on Form S-4
or S-8 (or any substitute form that may be adopted by the Commission)) or (ii)
for the account of any holders of Common Shares other than the Holders, then the
Company shall give written notice of such proposed filing to the Holders as soon
as practicable (but in no event less than 30 days before the anticipated filing
date), and such notice shall offer, subject to the terms and conditions hereof,
the Holders the opportunity to register such Registrable Securities as the
Holders may request, within 15 days after receipt of such notice, on the same
terms and conditions as the Company's or such other holders' shares of Common
Stock (a "Piggyback Registration").
SECTION 2.04. Reduction of Offering. (a) Notwithstanding
anything contained herein to the contrary, if the managing underwriter or
underwriters of an offering described in Section 2.02 or 2.03 shall advise the
Company that either (i) the size of the offering that the Holders, the Company
and any other persons intend to make or (ii) the combination of securities that
the Holders, the Company and such other persons intend to include in such
offering are such that the success of the offering would be materially and
adversely affected, then:
(A) if the size of the offering is the basis of such
underwriter's advice, the amount of Registrable Securities to be
offered for the account of the Holders shall be reduced in the manner
set forth in Section 2.02(c) to the extent necessary to reduce the
total amount of securities to be included in such offering to the
amount recommended by such managing underwriter or underwriters;
provided, however, that (x) in the case of a Demand Registration, the
amount of Registrable Securities to be offered for the account of the
Holders shall be reduced only after the amount of securities to be
offered for the account of the Company and such other persons has been
reduced to zero and (y) in the case of a Piggyback Registration, if
securities are being offered for the account of persons other than the
Company, then the proportion by which the amount of such Registrable
Securities intended to be offered for the account of the Holders is
reduced shall not exceed the proportion by which the amount of such
securities intended to be offered for the account of such other persons
is reduced; or
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(B) if the combination of securities to be offered is the
basis of such underwriter's advice, then
(x) in the case of a Demand Registration, the
Registrable Securities to be included in such offering shall
be reduced as described in clause (A) above (subject to the
proviso in clause (A)(x)) or
(y) in the case of a Piggyback Registration, the
Registrable Securities to be included in such offering shall
be reduced as described in clause (A) above (subject to the
proviso in clause (A)(y)); provided, however, that if such
reduction in the number of Registrable Securities would, in
the judgment of the managing underwriter, be insufficient to
eliminate the adverse effect that inclusion of the Registrable
Securities requested to be included would have on such
offering, such Registrable Securities will be excluded from
such offering.
(b) If there is any reduction or exclusion by more than 50% of
Registrable Securities pursuant to Section 2.02(c) or this Section 2.04 in
connection with any registration requested pursuant to Section 2.02(a), such
registration shall not be deemed to be a Demand Registration for the purposes of
determining the maximum number of Demand Registrations the Company is obligated
to effect.
ARTICLE III
REGISTRATION PROCEDURES
SECTION 3.01. Filings; Information. Subject to the
limitations in Article II, whenever the Holders request that any Registrable
Securities be registered pursuant to Section 2.02 hereof:
(a) the Company will as expeditiously as practicable prepare
and file with the Commission a registration statement on any form for
which the Company then qualifies and which counsel for the Company
shall deem appropriate and available for the sale of the Registrable
Securities to be registered thereunder in accordance with the intended
method of distribution thereof, and use its best efforts to cause such
filed registration statement to become and remain effective for a
period of the lesser of 90 days and such period as is necessary to
complete such offering;
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(b) the Company will, if requested, prior to filing such
registration statement or any amendment or supplement thereto, furnish
to the Holders and each managing underwriter, if any, copies thereof,
and thereafter furnish to the Holders and each such underwriter, if
any, such number of copies of such registration statement, each
amendment and supplement thereto (in each case including all exhibits
thereto and documents incorporated by reference therein) and the
prospectus included in such registration statement (including each
preliminary prospectus) as the Holders or such underwriter may
reasonably request in order to facilitate the sale of the Registrable
Securities;
(c) after the filing of the registration statement, the
Company will promptly notify the Holders of any stop order issued or,
to the knowledge of the Company, threatened to be issued by the
Commission and take all necessary actions required to prevent the entry
of such stop order or to remove it if entered;
(d) the Company will endeavor to qualify the Registrable
Securities for offer and sale under such other securities or blue sky
laws of such jurisdictions in the United States as the Holders or the
managing underwriter, if any, reasonably (in light of the Holders'
intended plan of distribution) requests; provided, however, that the
Company will not be required to (i) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify
but for this paragraph (d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction;
(e) the Company shall, as promptly as practicable, notify the
Holders, at any time when a prospectus relating to the sale of the
Registrable Securities is required by law to be delivered in connection
with sales by an underwriter or dealer, of the occurrence of an event
requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and as promptly as practicable make available to the
Holders and to the underwriters any such supplement or amendment. The
Holders agree that, upon receipt of any notice from the Company of the
happening of
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any event of the kind described in the preceding sentence, the Holders
will forthwith discontinue the offer and sale of Registrable Securities
pursuant to the registration statement covering such Registrable
Securities until receipt of the copies of such supplemented or amended
prospectus and, if so directed by the Company, the Holders will deliver
to the Company all copies, other than permanent file copies then in the
Holders' possession, of the most recent prospectus covering such
Registrable Securities at the time of receipt of such notice. In the
event the Company shall give such notice, the Company shall extend the
period during which such registration statement shall be maintained
effective as provided in Section 3.01(a) hereof by the number of days
during the period from and including the date of the giving of such
notice to the date when the Company shall make available to the Holders
such supplemented or amended prospectus;
(f) the Company will enter into customary agreements
(including an underwriting agreement in customary form) and take such
other actions as are reasonably required in order to expedite or
facilitate the sale of such Registrable Securities;
(g) the Company will furnish to the Holders and to each
managing underwriter, if any, a signed counterpart, addressed to the
Holders and each underwriter, of (i) an opinion or opinions of counsel
to the Company (including a "Rule 10b-5" opinion) and (ii) a comfort
letter or comfort letters from the Company's independent public
accountants, each in customary form and covering such matters of the
type customarily covered by opinions or comfort letters delivered to
such parties;
(h) commencing within three months after the effective date of
the registration statement, the Company will make generally available
to its securityholders, as soon as reasonably practicable, an earnings
statement covering a period of 12 months, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and
the rules and regulations of the Commission thereunder;
(i) the Company will use its best efforts to cause all Common
Shares (including, without limitation, all Registrable Securities) to
be listed on each securities exchange, if any, or the National
Association of Securities Dealers' interdealer quotation system on
which similar securities issued by the Company are then listed; and
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(j) Management of the Company and the Participating Holders
will cooperate in the selling effort, and the Company will coordinate
and conduct a "road show" in connection with such offering.
The Company may require the Holders promptly to furnish in
writing to the Company such information regarding the Holders' plan of
distribution of the Registrable Securities and other information as the Company
may from time to time reasonably request or as may be legally required in
connection with such registration.
SECTION 3.02. Registration Expenses. In connection with any
Demand Registration or Piggyback Registration, the Holders shall be responsible
for any underwriting discounts or commission that may be payable in connection
with the sale of its securities. The Company will pay all other expenses
incurred in connection with such registration, including, but not limited to,
(i) all filing fees with the Commission, (ii) fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements
of counsel in connection with blue sky qualifications of the securities), (iii)
printing expenses, (iv) the fees and expenses incurred in connection with the
listing of the securities, (v) fees and expenses of counsel and independent
certified public accountants for the Company (including the expenses of any
comfort letters pursuant to Section 3.01(g) hereof) and (vi) the reasonable fees
and expenses of any additional experts retained by the Company in connection
with such registration. The Company shall also pay internal Company expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties) relating to any Demand
Registration or Piggyback Registration.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
SECTION 4.01. Indemnification by the Company. The Company
agrees to indemnify and hold harmless each Holder, its employees, officers and
directors, and each person, if any, who controls such Holder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities caused by
any untrue statement or alleged untrue statement of a material fact contained in
any registration statement or prospectus relating to the Registrable Securities
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or any preliminary prospectus, or
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caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information furnished in writing to the Company by or on
behalf of such Holder expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Holder if a copy of the current prospectus was
not provided to a purchaser and such current prospectus would have cured the
defect giving rise to such loss, claim, damage or liability or for any sales
occurring after the Company has informed such Holder under Section 3.01(e) and
prior to the delivery by the Company of any supplement or amendment to such
prospectus. The Company also agrees to indemnify any underwriters of the
Registrable Securities, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Holders provided in this Section 4.01.
SECTION 4.02. Indemnification by the Holders. Each Holder
agrees to indemnify and hold harmless the Company, its officers and directors,
and each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to the Holders, but only with
reference to information furnished in writing by or on behalf of such Holder
expressly for use in any registration statement or prospectus relating to the
Registrable Securities, or any amendment or supplement thereto, or any
preliminary prospectus. Each Holder also agrees to indemnify and hold harmless
underwriters of the Registrable Securities, their officers and directors and
each person who controls such underwriters on substantially the same basis as
that of the indemnification of the Company provided in this Section 4.02.
Notwithstanding anything to the contrary in this Agreement,
the obligation of each Holder to indemnify according to this Agreement will be
individual to each Holder and will be limited to the net proceeds received by
such Holder from the sale of Registrable Securities pursuant to such
registration statement.
SECTION 4.03. Conduct of Indemnification Proceedings. In case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
Section 4.01 or 4.02, such person (the "Indemnified Party") shall
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promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Party") in writing and the Indemnifying Party, upon the request of
the Indemnified Party, shall retain counsel reasonably satisfactory to such
Indemnified Party to represent such Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnified Party and the Indemnifying Party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
of attorneys (in addition to any local counsel) at any time for all such
Indemnified Parties, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Indemnified
Parties, such firm shall be designated in writing by the Indemnified Parties.
The Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent, or if
there be a final judgment for the plaintiff, the Indemnifying Party shall
indemnify and hold harmless such Indemnified Parties from and against any loss
or liability (to the extent stated above) by reason of such settlement or
judgment.
SECTION 4.04. Contribution. (a) To the extent any
indemnification by an Indemnifying Party to an Indemnified Party is prohibited
or limited by law, the Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party and Indemnified Party in connection with the actions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative fault of such Indemnifying Party
and Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such Indemnifying Party
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or Indemnified Party, and such Parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a Party as a result of the losses, claims, damages or liabilities
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
(b) The Parties agree that it would not be just and equitable
if contribution pursuant to this Section 4.04 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
ARTICLE V
COVENANT
SECTION 5.01. The Company shall cause financial results
covering the first full month of post-Merger combined operations to be published
within 90 days after the effective time of the Merger.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Participation in Underwritten Registrations. No
Holder may participate in any underwritten registered offering contemplated
hereunder unless such Holder (a) agrees to sell its securities on the basis
provided in any underwriting arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms hereof and of such
underwriting arrangements.
SECTION 6.02. Rule 144. The Company covenants that it will use
its best efforts to file any reports required to be filed by it under the
Securities Act and the Exchange Act and that it will take such further action as
the Holders may reasonably request, all to the extent required from time to time
to enable the Holders to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by Rule 144
under the Securities Act,
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as such rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any Holder, the Company
will promptly deliver to the Holders a written statement as to whether it has
complied with such requirements.
SECTION 6.03. Holdback Agreement. In connection with any
offering in which a Holder participates pursuant to this Agreement, the Company
agrees (i) not to effect any public sale or distribution of any Common Shares,
or any securities convertible into or exchangeable or exercisable for Common
Shares (other than any such sale or distribution of such securities pursuant to
registration of such securities on Form S-4 or S-8 or any successor forms or any
such sale or distribution of such securities in connection with any merger or
consolidation involving the Company or a Subsidiary or the acquisition by the
Company or a Subsidiary of the capital equity or substantially all of the assets
of any other Person), during the 14 days prior to, and during the period
recommended by the underwriter of such offering (but in no event more than 120
days) beginning on, the effective date of any registration statement except as
part of such registration statement and (ii) that any agreement entered into
after the date of this Agreement pursuant to which the Company issues or agrees
to issue any privately placed securities shall contain a provision under which
holders of such securities agree not to effect any public sale or distribution
of any such securities during the periods described in (i) above, in each case
including a sale pursuant to Rule 144 (or any similar provision then in force)
under the Securities Act (except as part of any such registration, if
permitted); provided, however, that the provisions of this Section 6.03 shall
not prevent the conversion or exchange of any securities pursuant to their terms
into or for other securities.
SECTION 6.04. Assignment. The Stockholders shall be entitled
to assign the registration rights granted herein, in whole or in part, to any
transferee of Registrable Securities which is an affiliate of the transferring
Stockholder or, in the case of AT&T Investment Management Co. is a successor
trust or the trust for a successor plan in connection with or following the
reorganization of the pension plans or trust of AT&T Corp. and Lucent
Technologies Inc. provided that such Registrable Securities do not cease being
Registrable Securities pursuant to Section 2.01 upon consummation of such
transfer. Upon such assignment, each reference in this Agreement to the
"Stockholders" or the "Parties" shall be deemed to include the assignee.
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SECTION 6.05. Termination. This Agreement shall be terminated
upon the earlier to occur of (i) the sale of all Registrable Securities by the
Holders and (ii) the mutual consent of the Parties; provided, however, that
Article IV shall survive such termination.
SECTION 6.06. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
cable, telecopy, telegram or telex or by registered or certified mail (postage
prepaid, return receipt requested) to the respective Parties at the following
addresses (or at such other address for a Party as shall be specified in a
notice given in accordance with this Section 6.06) (with a copy, in each case,
to Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Telecopier:
(000) 000-0000, Attention: Xxxxx X. Xxxxxxxxxxx, Esq.):
(a) if to the Company:
Xxxxx River Corporation of Virginia
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxx, XX
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
(b) if to [Xxxxxx Xxxxxxx & Co., Incorporated]:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: ____________
Attention: _____________
(c) if to AT&T Investment Management Co.:
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Telecopier: ____________
Attention: _____________
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(d) if to First Plaza Group Trust:
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Telecopier: ____________
Attention: _____________
SECTION 6.07. Amendments; Waiver. (a) Subject to the terms of
Section 6.05 hereof, this Agreement may not be amended or modified except by an
instrument in writing signed by, or on behalf of, the Parties; provided,
however, that the Parties may (i) extend the time for the performance of any of
the obligations or other acts of the other Party or (ii) waive compliance with
any of the agreements or conditions of the other Party contained herein. Any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed by the Party to be bound thereby. Any waiver of any term or
condition shall not be construed as a waiver of any subsequent breach or a
subsequent waiver of the same term or condition, or a waiver of any other term
or condition, of this Agreement. The failure of any Party to assert any of its
rights hereunder shall not constitute a waiver of any such rights.
SECTION 6.08. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions set forth in this Agreement is not affected
in any manner materially adverse to any Party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
Parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the Parties as closely as possible in a mutually
acceptable manner in order that the transactions set forth in this Agreement be
consummated as originally contemplated to the fullest extent possible.
SECTION 6.09. Binding Effect; Benefit. This Agreement shall be
binding upon and shall inure to the benefit of the Parties and their respective
successors and assigns. Notwithstanding anything contained in this Agreement to
the contrary, nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the Parties or their respective successors and
assigns any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
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SECTION 6.10. Specific Performance. The Parties agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the Parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
SECTION 6.11. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York
applicable to contracts executed in and to be performed in that State. All
actions and proceedings arising out of or relating to this Agreement shall be
heard and determined in any New York state or federal court.
SECTION 6.12. Headings. The descriptive headings contained
in this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
SECTION 6.13. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different Parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
SECTION 6.14. Waiver of Jury Trial. EACH OF THE COMPANY AND
THE STOCKHOLDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE
COMPANY OR THE STOCKHOLDERS IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT HEREOF.
SECTION 6.15. Entire Agreement. This Agreement (including the
schedules hereto) constitutes the entire agreement among the Parties with
respect to the subject matter hereof and supersedes all prior agreements and
understandings among the Parties with respect thereto. No addition to or
modification of any provision of this Agreement shall be binding upon any Party
unless made in writing and signed by all Parties.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to
be executed as of the date first written above by their respective officers
thereunto duly authorized.
XXXXX RIVER CORPORATION OF VIRGINIA
By _________________________________
Name:
Title:
XXXXXX XXXXXXX & CO., INCORPORATED
By _________________________________
Name:
Title:
AT&T INVESTMENT MANAGEMENT CO.
By _________________________________
Name:
Title:
FIRST PLAZA GROUP TRUST
By: Mellon Bank, N.A.,
as Trustee
By _________________________________
Name:
Title:
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Schedule I
Ownership of Shares
Immediately After The Effective Time
MS&Co. ____________________
AT&T Investment Management Co. ____________________
First Plaza Group Trust ____________________
[other affiliates] ____________________
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