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EXHIBIT 10.3
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
Amended and Restated Registration Rights Agreement (the "Agreement"),
dated as of February 29, 2000, by and among Altiva Financial Corporation, a
Delaware corporation (the "Company"), and Holders (as defined herein) of the
Company's Amended and Restated 12% Secured Convertible Senior Notes due 2006
(the "Notes").
WHEREAS, the Company has issued to Holders $14,000,000 principal amount
of the Notes; and
WHEREAS, based on the conversion exercise price in effect on the date
hereof, the Notes are convertible, subject to certain conditions, into 7,865,168
shares of the common stock of the Company, par value $0.01 (the "Common Stock")
(such shares, subject to adjustment in accordance with the terms of the Notes,
including an adjustment resulting in a reduction in the conversion exercise
price to be $0.98 upon mandatory conversion of $6,428,000 principal amount of
12% Secured Convertible Senior Notes due 2006 issued by the Company in exchange
for 12 1/2% Subordinated Notes due 2001 previously issued by the Company, are
herein after referred to as the "Securities"); and
WHEREAS, the Company and the Holders have entered into a Registration
Rights Agreement, dated as of August 31, 1999, as amended by Amendment No. 1 to
the Registration Rights Agreement, dated as of December 13, 1999, Amendment No.
2 to the Registration Rights Agreement, dated as of December 30, 1999, Amendment
No. 3 to the Registration Agreement, dated as of February 2, 2000, and Amendment
No. 4 to the Registration Rights Agreement, dated as of February 11, 2000
(collectively, the "Existing Agreement"); and
WHEREAS, the Company and the Holders desire to amend and restate the
Existing Agreement to reflect that the aggregate principal amount of Notes
issued and sold by the Company to the Purchaser has increased from $10,000,000
to $14,000,000, that the number of shares of Common Stock that the Notes are
convertible into has increased from 2,000,000 shares to 7,865,168 shares and to
otherwise amend the agreements of the parties; and
WHEREAS, as an inducement to Holders to purchase the Notes, the Company
agreed to register the Securities into which the Notes are convertible;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged by
all parties hereto, the
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parties, intending to be legally obligated, hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
"Act": The Securities Act of 1933, as amended.
"Broker-Dealer": Any broker or dealer registered as such under the
Exchange Act.
"Closing Date": The date of this Agreement.
"Commission" or "SEC": The United States Securities and Exchange
Commission.
"DTC": The Depository Trust Company.
"Effectiveness Target Date": As defined in Section 3 hereof.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Holders": As defined in Section 2(b) hereof.
"Indemnified Holder": As defined in Section 7(a) hereof
"NASD": National Association of Securities Dealers, Inc.
"Person": An individual, partnership, corporation, trust or
unincorporated organization, or a government or an agency, authority or
political subdivision thereof.
"Prospectus": The prospectus included in a Resale Registration
Statement, as amended or supplemented, including post-effective amendments,
thereto.
"Registration Default": As defined in Section 4 hereof.
"Resale Registration Statement": As defined in Section 3 hereof.
"Securities": As defined in the preamble hereto.
"Transfer Restricted Securities": Each Security, until the earliest to
occur of (a) the date on which such Security has been effectively registered
under the Act and disposed of in accordance with a Resale Registration Statement
or other applicable registration statement and (b) the date on which such
Security is distributed to the public pursuant to Rule 144 under the
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Act or may be sold to the public without compliance with such rule.
"Underwritten Registration" or "Underwritten Offering": An offering in
which securities of the Company are sold to an underwriter for reoffering to the
public pursuant to an effective registration statement filed with the
Commission.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(A) TRANSFER RESTRICTED SECURITIES. The Transfer Restricted
Securities are subject to the terms of this Agreement and may be sold in
accordance with the provisions hereof.
(B) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is deemed
to be a holder of Transfer Restricted Securities (each, a "Holder") whenever
such Person owns (i) Notes, directly or indirectly through a participation
interest therein, or (ii) Securities prior to (A) the resale of Securities in
accordance with the terms hereof or (B) the time that such Securities are no
longer considered to be Transfer Restricted Securities.
SECTION 3. RESALE REGISTRATION STATEMENT
(A) REGISTRATION. The Company shall cause to be filed with the
Commission promptly after the Closing Date, but in no event later than April 15,
2000, one or more registration statements on Form X-0, X-0 or S-3, or other
applicable form (each a "Resale Registration Statement"), and use its reasonable
best efforts to cause such Resale Registration Statement to be declared
effective by the Commission promptly, but in no event later than June 15, 2000
(the "Effectiveness Target Date"). In connection with the foregoing, the Company
shall (A) file all pre-effective amendments to such Resale Registration
Statement as may be necessary in order to cause such Resale Registration
Statement to become effective, (B) if applicable, file a post-effective
amendment to such Resale Registration Statement pursuant to Rule 430A under the
Securities Act and (C) cause all necessary filings in connection with the
registration and qualification of the Securities to be made under the state
securities and Blue Sky laws of such jurisdictions as are necessary. Subject to
the provisions of Section 5(c) hereof, the Company shall use its reasonable best
efforts to keep such Resale Registration Statement continuously effective,
supplemented and amended to the extent necessary to ensure that it is available
for resales of Securities by the Holders of Transfer Restricted Securities
entitled to the benefit of this Section 3(a), and to ensure that it conforms
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, and all state
securities or Blue Sky laws until the earlier of (i) the sale of all Securities
in accordance with a Resale Registration Statement or (ii) the date on which all
Transfer Restricted Securities may be sold without restriction pursuant to Rule
144 under the Act.
(B) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH
THE SHELF REGISTRATION Statement. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Resale Registration
Statement pursuant to this Agreement
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unless and until such Holder furnishes to the Company in writing, within twenty
(20) business days after receipt of a request therefor, such information as the
Company may reasonably request for use in connection with any Resale
Registration Statement or Prospectus or preliminary Prospectus included therein.
No Holder of Transfer Restricted Securities shall be entitled to Liquidated
Damages pursuant to Section 4 hereof unless and until such Holder shall have
used its reasonable best efforts to provide all such reasonably requested
information. Each Holder as to which any Resale Registration Statement is being
effected agrees to promptly furnish to the Company any and all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
SECTION 4. LIQUIDATED DAMAGES
The parties hereto agree and acknowledge that under the terms of the
Existing Agreement the Holders of the Notes are entitled to payment of an
aggregate of $6,595 as liquidated damages (the "Old Liquidated Damages"). If (a)
the Company shall not have filed the Resale Registration Statement with the
Commission on or prior to Xxxxx 00, 0000, (x) the Resale Registration Statement
shall not have been declared effective by the SEC by the Effectiveness Target
Date or (c) the Resale Registration Statement is filed and declared effective
but shall thereafter cease to be effective or fail to be usable for its intended
purpose without being succeeded within ten (10) business days by a
post-effective amendment that cures such failure and that is itself declared
effective within thirty (30) business days (each such event referred to in
clauses (a) through (c), a "Registration Default"), additional cash interest
("New Liquidated Damages") shall accrue to each Holder of the Notes commencing
upon the occurrence of such Registration Default in an amount equal to $0.05 per
week per $1,000 principal amount of the Notes held by such Holder during the
ninety (90) day period following the occurrence of such Registration Default.
The amount of New Liquidated Damages will increase by an additional $0.05 per
week per $1,000 principal amount of the Notes with respect to each subsequent
90-day period until all Registration Defaults have been cured, up to a maximum
amount of New Liquidated Damages for all Registration Defaults of $0.50 per week
per $1,000 principal amount of Notes. The Old Liquidated Damages and the new
Liquidated Damages are (collectively referred to as "Liquidated Damages"). All
accrued Liquidated Damages shall be paid to Holders by the Company in the same
manner as interest is paid pursuant to the Notes. Following the cure of all
Registration Defaults relating to any particular Transfer Restricted Securities,
the accrual of New Liquidated Damages with respect to such Transfer Restricted
Securities will cease.
All obligations of the Company set forth in the preceding paragraph
that are outstanding with respect to any Transfer Restricted Security at the
time such Security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such Security shall have
been satisfied in full.
SECTION 5. REGISTRATION PROCEDURES
(A) RESALE REGISTRATION STATEMENT. In connection with each Resale
Registration Statement, the Company shall comply with all the provisions of
Section 5(b) below and shall file
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and use its reasonable best efforts to effect such registration to permit the
sale of the Transfer Restricted Securities in accordance with the terms of this
Agreement.
(B) GENERAL PROVISIONS. In connection with any Resale Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
the Securities by Broker-Dealers), the Company shall:
(i) use its reasonable best efforts to keep such Resale
Registration Statement continuously effective and provide all requisite
financial statements during the period specified in Section 3 of this
Agreement, and upon the occurrence of any event that would cause any
such Resale Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B) not to be
effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Company shall file
promptly, and as appropriate, an amendment or supplement to such Resale
Registration Statement, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause (A) or (B),
use its reasonable best efforts to cause such amendment to be declared
effective and such Resale Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as soon as
practicable thereafter;
(ii) prepare and file with the Commission such amendments
and post-effective amendments to the Resale Registration Statement as
may be necessary to keep the Resale Registration Statement effective
for the applicable period set forth in Section 3 hereof or such shorter
period as will terminate when all Transfer Restricted Securities
covered by such Resale Registration Statement cease to be Transfer
Restricted Securities; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Act in a timely manner; and reasonably
assist Holders in complying with the provisions of the Act with respect
to the disposition of all Securities covered by such Resale
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof
set forth in such Resale Registration Statement or supplement to the
Prospectus;
(iii) advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons in writing, to
confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to any Resale Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Resale Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the
Commission of any stop order or other order or action suspending the
effectiveness of the Resale Registration Statement under the Act or of
the suspension by any state securities or Blue Sky commission of the
exemption, qualification or registration of the Transfer
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Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, or (D)
of the existence of any fact or the happening of any event that makes
any statement of a material fact made in the Resale Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Resale Registration
Statement or the Prospectus in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
If at any time the Commission shall issue any stop order or other order
or take other action suspending the effectiveness of the Resale
Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the exemption,
qualification or registration of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Company shall use its
reasonable best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
(iv) furnish to each of the selling Holders and each of
the underwriter(s), if any, before filing with the Commission, copies
of any Resale Registration Statement or any Prospectus included therein
or any amendments or supplements to any such Resale Registration
Statement or Prospectus (including all documents incorporated by
reference after the initial filing of such Resale Registration
Statement), which documents will be subject to the review of such
Holders and underwriter(s), if any, for a period of at least five (5)
business days, and the Company will not file any such Resale
Registration Statement or Prospectus or any amendment or supplement to
any such Resale Registration Statement or Prospectus (including all
such documents incorporated by reference) to which a selling Holder of
Transfer Restricted Securities covered by such Resale Registration
Statement or the underwriter(s), if any, shall reasonably object within
five (5) business days after the receipt thereof. A selling Holder or
underwriter, if any, shall be deemed to have reasonably objected to
such filing if such Resale Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission;
(v) make available at reasonable times and upon
reasonable notice for inspection by the selling Holders, any
underwriter participating in any disposition pursuant to such Resale
Registration Statement and any attorney or accountant retained by such
selling Holders or any of the underwriter(s), all financial and other
records, pertinent corporate documents and properties of the Company
and cause the Company's' officers, directors and employees to supply
all information reasonably requested by any such Holder, underwriter,
attorney or accountant in connection with such Resale Registration
Statement subsequent to the filing thereof and prior to its
effectiveness;
(vi) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any Resale Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment, if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included
therein, provided such information is usual and customary in such a
document, including, without limitation,
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information relating to the "Plan of Distribution" of the Transfer
Restricted Securities, information with respect to the Transfer
Restricted Securities being sold to such underwriter(s) and any other
terms of the offering of the Transfer Restricted Securities to be sold
in such offering, and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the
Company is notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(vii) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, one copy of the Resale
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits;
(viii) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; and the
Company hereby consents to the use of the Prospectus and any amendment
or supplement thereto (other than in those states or jurisdictions in
which the Company has not complied with or satisfied the requirements
of the relevant securities or Blue Sky laws) by each of the selling
Holders and each of the underwriter(s), if any, in connection with the
offering and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto;
(ix) enter into such agreements (including an underwriting
agreement), and make such representations and warranties and take all
such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any Resale Registration Statement contemplated by this
Agreement, all to the extent customary in offerings of the type
contemplated hereby and as may be reasonably requested by any Holder of
Transfer Restricted Securities or underwriter in connection with any
sale or resale pursuant to any Resale Registration Statement
contemplated by this Agreement; and if the registration is an
Underwritten Registration, the Company shall:
(A) furnish to each selling Holder and each
underwriter, if any, in such substance and scope as they may
request and as are customarily made by issuers to underwriters
in primary underwritten offerings, upon the date of the
effectiveness of the Resale Resale Registration Statement:
(1) a certificate, dated the date of
effectiveness of the Resale Resale Registration
Statement, signed by (i) the President or any Vice
President and (ii) a principal financial or
accounting officer of the Company, confirming, as of
the date thereof, that the representations and
warranties of the Company in the underwriting
agreement, if applicable, are true and correct in all
material respects as of such date and such other
matters as such parties may reasonably request;
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(2) an opinion, dated the date of
effectiveness of the Resale Resale Registration
Statement, of counsel for the Company to the effect
that the shares covered by the Resale Resale
Registration Statement shall be validly issued and
non-assessable, and such opinion shall include a
statement to the effect that such counsel has
participated in conferences with officers and other
representatives of the Company, representatives of
the independent public accountants for the Company,
the underwriters' representatives and the
underwriters' counsel in connection with the
preparation of such Resale Registration Statement and
the related Prospectus and have considered the
matters required to be stated therein and the
statements contained therein, although such counsel
has not independently verified the accuracy,
completeness or fairness of such statements; and that
such counsel advises that, on the basis of the
foregoing, no facts came to such counsel's attention
that caused such counsel to believe that the
applicable Resale Registration Statement, at the time
such Resale Registration Statement or any
post-effective amendment thereto became effective,
contained an untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading, or that the Prospectus
contained in such Resale Registration Statement, as
of its date, contained an untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein, in
light of the circumstances under which they were
made, not misleading. Without limiting the foregoing,
such counsel may state further that such counsel
assumes no responsibility for, and has not
independently verified, the accuracy, completeness or
fairness of the financial statements, notes and
schedules and other financial data included in any
Resale Registration Statement contemplated by this
Agreement or the related Prospectus; and
(3) a customary comfort letter, dated
as of the date of effectiveness of the Resale
Registration Statement, from the Company's
independent public accountants, in the customary form
and covering matters of the type customarily covered
in comfort letters by underwriters in connection with
primary underwritten offerings;
(B) set forth in full or incorporate by
reference in the Underwriting Agreement, if any, the
indemnification provisions and procedures of Section 7 hereof
with respect to all parties to be indemnified pursuant to said
Section; and
(C) deliver such other documents and
certificates as may be reasonably requested by such parties to
evidence compliance with clause (A) above and with any
customary conditions contained in the underwriting agreement
or other agreement entered into by the Company pursuant to
this clause (ix), if any.
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If at any time the representations of the Company contemplated in
clause (A)(1) above cease to be true and correct, the Company shall so advise
the underwriter(s), if any, and each selling Holder promptly and, if requested
by such Persons, shall confirm such advice in writing;
(x) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if any, and
their respective counsel in connection with the registration and qualification
of the Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions as the selling Holders or underwriter(s) may reasonably
request and do any and all other acts or things necessary or advisable to enable
the disposition in such jurisdictions of the Transfer Restricted Securities
covered by the Resale Registration Statement; provided that the Company shall
not be required to register or qualify as a foreign corporation where it is not
now so qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and transactions
relating to the Resale Registration Statement, in any jurisdiction where it is
not now so subject;
(xi) cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any, may
reasonably request at least two (2) business days prior to any sale of Transfer
Restricted Securities made by such underwriter(s) or selling Holders;
(xii) use its reasonable best efforts to cause the Transfer
Restricted Securities covered by the Resale Registration Statement to be
registered with or approved by such other governmental agencies or authorities
as may be necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the provisions contained in paragraph (x)
above;
(xiii) if any fact or event contemplated by paragraph (b)(iii)(D)
above shall exist or have occurred, prepare a supplement or post-effective
amendment to the Resale Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer Restricted
Securities, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
not misleading;
(xiv) provide a CUSP number for all Transfer Restricted Securities
not later than the effective date of the Resale Registration Statement;
(xv) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter that is required to be retained in accordance with the rules and
regulations of the NASD, and use its reasonable best efforts to cause such
filings to become effective and approved by such governmental agencies or
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authorities as may be necessary to enable the Holders selling Transfer
Restricted Securities to consummate the disposition of such Transfer Restricted
Securities;
(xvi) otherwise comply with all applicable rules and regulations of
the Commission, and make generally available to its security holders, as soon as
practicable, a consolidated earnings statement meeting the requirements of Rule
158 under the Act (which need not be audited) for the twelve-month period (A)
commencing at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm commitment or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an offering,
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of the Resale Registration Statement;
(xvi) cause all shares of Transfer Restricted Securities covered by
the Resale Registration Statement to be listed on each securities exchange or
market, if applicable, on which similar securities issued by the Company are
then listed; and
(xvii) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 or Section
15 of the Exchange Act.
(C) BLACKOUT. Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from the Company of the
existence of any fact of the kind described in Section 5(b)(iii)(D) hereof, such
Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the Resale Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus as contemplated by section
5(b)(xiii) hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the Prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the Prospectus. If so directed by the Company, each Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current immediately prior to the time of receipt
of such notice. In the event the Company shall give any such notice, the time
period regarding the effectiveness of such Resale Registration Statement or any
post-effective amendment thereto set forth in Section 3 shall be extended by the
number of days during the period from and including the date of the giving of
such notice pursuant to Section 5(b)(iii)(D) hereof to and including the date
when each selling Holder covered by such Resale Registration Statement shall
have received the copies of the supplemented or amended Prospectus as
contemplated by section 5(b)(xiii) hereof or shall have received the Advice,
provided that, notwithstanding the foregoing, such time period may be extended
in any given calendar year only one time for a maximum of (30) business days.
SECTION 6. REGISTRATION EXPENSES
All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless whether a Resale
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses
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(including filings made by any Holder with the NASD (and, if applicable, the
fees and expenses of any "qualified independent underwriter" and its counsel
that may be required by the NASD)); (ii) all fees and expenses of compliance
with federal securities, foreign securities and state Blue Sky or securities
laws; (iii) all expenses of printing (including the printing of Prospectuses and
new certificates representing Securities), messenger and delivery services and
telephone expenses incurred by the Company; (iv) all fees and disbursements of
counsel for the Company; (v) all application and filing fees in connection with
listing the Securities on a national securities exchange or automated quotation
system pursuant to the requirements hereof; and (vi) all fees and disbursements
of independent certified public accountants of the Company (including the
expenses of any special audit and comfort letters required by or incident to
such performance).
The Company will, in any event, bear its internal expense (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit, all
trustee and rating agency fees and charges and the fees and expenses of any
person, including special experts, retained by the Company.
Each Holder shall pay all expenses of its counsel, underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Transfer Restricted Securities pursuant to a Resale
Registration Statement.
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SECTION 7. INDEMNIFICATION
(a) The Company shall indemnify and hold harmless (i) each Holder,
(ii) each person, if any, who controls (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) any Holder (any of the persons referred
to in this clause (ii) being hereinafter referred to as a "Controlling Person")
and (iii) the respective officers, directors, partners, employees,
representatives and agents of any Holder or any Controlling Person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Holder"), to the fullest extent lawful, from and against any and
all losses, claims, damages, liabilities, judgments, actions and expenses, joint
or several (including without limitation, reimbursement of all reasonable costs
of investigating, preparing, pursuing or defending any claim or action,
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and charges of counsel directly or
indirectly caused by, related to, based upon, arising out of or in connection
with any untrue statement or alleged untrue statement of a material fact
contained in (A) any Resale Registration Statement or Prospectus (or any
amendment or supplement thereto) or (B) any state securities or Blue Sky
application or other document prepared or executed by the Company (or based upon
any information furnished by the Company) for the purpose of qualifying any of
the Securities under the securities or Blue Sky laws of any state or other
jurisdiction (any such application, document or information hereinafter is
referred to as a "Blue Sky Application") or any omission or alleged omission to
state in any Resale Registration Statement or Prospectus (or any amendment or
supplement thereto) or in any Blue Sky Application a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is made in
reliance upon and in conformity with information relating to any of the Holders
furnished in writing to the Company by any of the Holders or counsel or agents
of Holders expressly for use therein. The foregoing indemnification is in
addition to any liability which the Company may otherwise have to any
Indemnified Holder.
(b) Each Holder agrees, severally and not jointly, to indemnify
and hold harmless (i) the Company, (ii) each person who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company
and (iii) the respective officers, directors, partners, employees,
representatives and agents of the Company and any such controlling person to the
same extent as the foregoing indemnity from the Company to each of the
Indemnified Holders, but only with respect to claims and actions based on
information relating to such Holder furnished in writing by such Holder
expressly for use in any Resale Registration Statement. The foregoing
indemnification is in addition to any liability which any Holder may otherwise
have to any of the foregoing indemnified persons.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided,
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however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 7 except to the extent
it has been materially prejudiced by such failure and, provided further, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 7 (except to the extent so provided in any such other obligation). If
any such claim or action shall be brought against an indemnified party, and it
shall have notified the indemnifying thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such action, the indemnifying party shall not be liable to the
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation, provided, however, that
the indemnified party shall have the right to employ separate counsel to
represent jointly the indemnified party and those other Indemnified Holders and
their respective officers, employees and controlling persons who may be subject
to liability arising out of any claim in respect of which indemnity may be
sought by Indemnified Holders against the indemnifying party under this Section
7, but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless, (i) the employment thereof has been specifically
authorized by the indemnifying party in writing, (ii) such indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party and in the reasonable judgment of such
counsel it is advisable for such indemnified party to employ separate counsel or
(iii) the indemnifying party has failed to assume the defense of such action and
employ counsel reasonably satisfactory to the indemnified party, in which case,
if such indemnified party notifies the indemnifying party in writing that it
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party. In no event shall the indemnifying parties
be liable for the fees and expenses of more than one counsel (in addition to
local counsel). Each indemnified party, as a condition of the indemnity
agreements contained in this Section 7, shall use its reasonable best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall (i) without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding or (ii) be liable for any
settlement of any such action, compromise of any action or any judgment with
respect to any action effected without its written consent, but if settled with
its written consent or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party, to the extent set forth herein, from and against any loss or
liability by reason of such settlement or judgment.
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(d) If the indemnification provided for in this Section 7 shall
for any reason be unavailable to (except for a reason expressly provided herein)
or insufficient to hold harmless an indemnified party under Section 7(a) or 7(b)
in respect of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, in such proportion as shall be appropriate to reflect
the relative fault of the Company on the one hand and the Holders on the other
hand with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to whether the untrue or alleged statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Holders, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Holders agree that it would not
be just and equitable if contributions pursuant to this Section 7(d) were to be
determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
7(d) shall be deemed to include, for purposes of this Section 7(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Indemnified Holder shall be required to
contribute any amount in excess of the amount by which proceeds received by such
Indemnified Holder from an offering of the Securities exceeds the amount of any
damages which such Indemnified Holder has otherwise paid or become liable to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Indemnified Holders'
obligations to contribute as provided in this Section 7(d) are several and not
joint.
SECTION 8. RULE 144 AND RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to use its reasonable best efforts to
make and keep public information available as is required by Rules 144 and 144A
under the Act to permit sales of Transfer Restricted Securities pursuant to such
rules, including, without limitation, complying with the requirements of Rule
144A(d)(4), and to furnish to each Holder promptly upon request a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144 and Rule 144A under the Act.
SECTION 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in
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any underwriting arrangements provided by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such
underwriting arrangements.
SECTION 10. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Resale
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority of the
Transfer Restricted Securities included in such offering; provided, that such
investment bankers and managers must be reasonably satisfactory to the Company.
SECTION 11. MISCELLANEOUS
(A) REMEDIES. The Company agrees that monetary damages (including
the Liquidated Damages contemplated hereby) would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(B) NO INCONSISTENT AGREEMENTS. The Company will not on or after
the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way breach or conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
(C) AMENDMENTS AND WAIVERS. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Company has
obtained the written consent of Holders of a majority of the outstanding
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose Transfer Restricted Securities are being resold pursuant
to the Resale Registration Statement and that does not affect directly or
indirectly the rights of other Holders whose Transfer Restricted Securities are
not reselling pursuant to such Resale Registration Statement may be given by the
Holders of a majority of the outstanding Transfer Restricted Securities being
resold pursuant to such Resale Registration Statement.
(D) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class or
certified mail, telex, telecopier or reliable overnight delivery service:
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(i) if to a Holder, initially at the address set forth
below its name on the signature page hereto, and thereafter at such
other address notice of which is given in accordance with this Section
11(d); and
(ii) if to the Company:
Altiva Financial Corporation
Sixth Floor
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx
With a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx, Xx., Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five (5) business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if sent via a reliable overnight delivery service.
(E) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities.
(F) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, by the parties hereto, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
(G) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(H) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND, WITHOUT REGARD
TO THE CONFLICT OF LAW RULES THEREOF.
(I) SEVERABILITY. In the event that any one or more of the
provisions contained herein or the application thereof, in any circumstances, is
held invalid, illegal or unenforceable, the
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validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.
(J) ENTIRE AGREEMENT. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter hereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ALTIVA FINANCIAL CORPORATION
By: /s/ XXXXXX X. XXXXXXXXX
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chairman and Chief Executive Officer
VALUE PARTNERS, LTD
By: XXXXX & PARTNERS,
General Partner
By: /s/ XXXXXXX X. XXXXX
-------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Partner
Address:
0000 Xxxx Xxxxxx - Xxxxx 000
Xxxxxx, Xxxxx 00000
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X. XXXX PRICE RECOVERY FUND II, L.P.
By: X. Xxxx Price Recovery Fund II Associates, L.L.C.,
General Partner
By:
--------------------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: President
Address:
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
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