Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
MCM CAPITAL GROUP, INC.
Dated as of February 21, 2002
TABLE OF CONTENTS
Page
1. Registrations Upon Request. ............................................................ 2
1.1. Requests by Stockholders ...................................................... 2
1.2. Short Form Registration. ...................................................... 3
1.3. Expenses ...................................................................... 3
1.4. Priority in Demand Registrations .............................................. 3
1.5. No Company or Other Stockholder Initiated Registration; Deferral
of Registration. .............................................................. 4
2. Incidental Registrations ............................................................... 4
3. Registration Procedures ................................................................ 6
4. Underwritten Offerings ................................................................. 10
4.1. Underwriting Agreement ........................................................ 10
4.2. Selection of Underwriters ..................................................... 11
5. Holdback Agreements. ................................................................... 11
6. Preparation; Reasonable Investigation .................................................. 12
7. No Grant of Future Registration Rights ................................................. 12
8. [Reserved] ............................................................................. 13
9. Indemnification. ....................................................................... 13
9.1. Indemnification by the Company ................................................ 13
9.2. Indemnification by the Sellers ................................................ 14
9.3. Notices of Claims, etc ........................................................ 15
9.4. Other Indemnification ......................................................... 16
9.5. Indemnification Payments ...................................................... 16
9.6. Other Remedies ................................................................ 16
10. Representations and Warranties ......................................................... 17
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11. Definitions ............................................................................ 17
12. Miscellaneous. ......................................................................... 20
12.1. Rule 144, etc ................................................................ 20
12.2. Successors, Assigns and Transferees .......................................... 20
12.3. Amendment and Modification ................................................... 21
12.4. Governing Law ................................................................ 21
12.5. Invalidity Provision ......................................................... 21
12.6. Notices ...................................................................... 21
12.7. Headings; Execution in Counterparts .......................................... 23
12.8. Injunctive Relief ............................................................ 23
12.9. Term ......................................................................... 23
12.10. Further Assurances ........................................................... 24
12.11. Entire Agreement ............................................................. 24
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is dated as of
the 21st day of February, 2002, among MCM Capital Group, Inc., a Delaware
corporation (the "COMPANY"), and each of the Persons (as defined in Section 11
hereof) whose names are listed on Schedule A hereto (together with their
Affiliated Stockholders (as herein defined), if any (the "INITIAL
STOCKHOLDERS")). Capitalized terms used but not otherwise defined herein have
their respective meanings set forth in Section 11.
WHEREAS, the Company, desires to enter into that certain Purchase
Agreement, dated as of February 21, 2002 (the "PURCHASE AGREEMENT"), between the
Company and the Initial Stockholders, pursuant to which the Company will sell to
the Initial Stockholders 1,000,000 shares of Series A Senior Cumulative
Participating Convertible Preferred Stock, par value $0.01 per share (the
"PREFERRED STOCK"); and
WHEREAS, to induce the Initial Stockholders to enter into the Purchase
Agreement, the Company has agreed to grant certain registration rights to the
Stockholders with respect to the Common Stock issuable upon the conversion or
other exercise of the Preferred Stock; and
WHEREAS, a Registration Rights Agreement (the "ING REGISTRATION RIGHTS
AGREEMENT") was entered into as of January 12, 2000, by the Company and ING
(U.S.) Capital LLC; and
WHEREAS, an Amended and Restated Registration Rights Agreement (the
"CTW REGISTRATION RIGHTS AGREEMENT") was entered into as of October 31, 2000,
among the Company, C.P. International Investments Limited, a Bahamian company,
CTW Funding, LLC, a Delaware limited liability company, MCM Holding Company LLC,
a New York limited liability company, and the MCM Holding Distributees (as
defined in the CTW Registration Rights Agreement); and
WHEREAS, a Registration Rights Agreement was entered into as of
December 20, 2000, by the Company and CFSC Capital Corp. VIII, a Delaware
corporation (the "CARGILL REGISTRATION RIGHTS AGREEMENT" and, collectively with
the ING Registration Rights Agreement and the CTW Registration Rights Agreement,
the "EXISTING REGISTRATION RIGHTS AGREEMENTS"); and
WHEREAS, it is a condition of the execution and delivery by the Initial
Stockholders of the Purchase Agreement, that the Company enter into this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to and
on the terms and conditions herein set forth, the parties hereto agree as
follows:
1. Registrations Upon Request.
1.1. Requests by Stockholders. At any time, the Requisite Stockholders
shall have the right to make requests that the Company effect up to two separate
registrations under the Securities Act (each a "DEMAND REGISTRATION") of all or
part of the Registrable Securities owned by them.
A request made by the Requisite Stockholders pursuant to the
immediately preceding sentence (in any such case, the "REQUESTING PARTY") shall
not be counted for purposes of the request limitations set forth above if (a)
the Requesting Party determines in its good faith judgment to withdraw the
proposed registration of any Registrable Securities requested to be registered
pursuant to this Section 1.1 due to marketing or regulatory reasons, (b) the
registration statement relating to any such request is not declared effective
within 90 days of the date such registration statement is first filed with the
Commission and the Requesting Party determines to withdraw the proposed
registration, (c) within 180 days after the registration relating to any such
request has become effective, such registration is interfered with by any stop
order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason and the Company fails to have such
stop order, injunction or other order or requirement removed, withdrawn or
resolved to the Requesting Party's reasonable satisfaction within 30 days, (d)
more than 10% of the Registrable Securities requested by the Requesting Party to
be included in the registration are not so included pursuant to Section 1.4, (e)
the conditions to closing specified in the underwriting agreement or purchase
agreement entered into in connection with the registration relating to any such
request are not satisfied (other than as a result of a default or breach
thereunder by the Requesting Party), (f) the registration relating to such
request is preempted by a proposed Company registration, notice of which is
given by the Company to the Requesting Party pursuant to Section 1.5(b)(iii),
and the Requesting Party determines to withdraw its registration request prior
to a registration statement relating thereto becoming effective or (g) the
registration statement used pursuant to such request is a Form S-3 (or any other
comparable form hereinafter adopted).
Upon any such registration request, the Company will promptly, but in
any event within 10 days, give written notice of such request to all holders of
Registrable Securities and thereupon the Company will, subject to Sections 1.4
and 1.5, use its best efforts to effect the prompt registration under the
Securities Act of:
(i) the Registrable Securities which the Company has been so
requested to register by the Requesting Party, and
(ii) all other Registrable Securities which the Company has
been requested to register by the holders thereof by written request
given to the
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Company by such holders within 10 days after the giving of such written
notice by the Company to such holders,
all to the extent required to permit the disposition of the Registrable
Securities so to be registered in accordance with the intended method or methods
of disposition of each seller of such Registrable Securities.
1.2. Short Form Registration.
(a) A registration requested pursuant to Section 1.1 shall be
effected by the filing of a registration statement on a form reasonably
acceptable to the Requesting Party, it being understood that the Company shall,
where permitted under the Securities Act, seek to qualify for registration on
Form S-3 (or any other comparable form hereinafter adopted).
(b) Subject to Section 1.5(b) below, in addition to the Demand
Registrations provided pursuant to Section 1.1 above, Requisite Stockholders
will also be entitled to request at any time and from time to time an unlimited
number of registrations on Form S-3; provided not less than $200,000 in value of
Registrable Securities (computed at the date of the initial filing of the
applicable Form S-3) are included therein.
1.3. Expenses. The Company will pay all Registration Expenses in
connection with any registration requested under Section 1.1 or Section 1.2(b);
provided that (a) each seller of Registrable Securities shall pay all
Registration Expenses to the extent required to be paid by such seller under
applicable law and all underwriting discounts and commissions and transfer
taxes, if any, and (b) if, pursuant to clause (a) of Section 1.1, a Requesting
Party determines in its good faith judgment to withdraw the proposed
registration of any Registrable Securities requested to be registered pursuant
to Section 1.1 due to marketing reasons after the filing of a registration
statement with respect to such Registrable Securities, the Requesting Party
shall reimburse the Company for its reasonable out-of-pocket expenses incurred
in connection with the preparation and filing of such registration statement
unless the Requesting Party agrees in writing to have the withdrawn registration
treated as one of its two registration requests permitted pursuant to Section
1.1.
1.4. Priority in Demand Registrations. If a registration pursuant to
Section 1.1 or 1.2(b) involves an underwritten offering, and the managing
underwriter (or, in the case of an offering which is not underwritten, a
nationally recognized investment banking firm) shall advise the Company in
writing (with a copy to each Person requesting registration of Registrable
Securities) that, in its opinion, the number of securities requested and
otherwise proposed to be included in such registration exceeds the number which
can be sold in such offering without materially and adversely affecting the
offering price or the market price of the Common Stock or would otherwise
jeopardize the
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offering, the Company will include in such registration to the extent of the
number which the Company is so advised can be sold in such offering without such
material adverse effect, first, the Registrable Securities of all Stockholders
(including the Requesting Party), on a pro rata basis (based on the number of
shares of Registrable Securities owned by each such Stockholder), second, the
securities, if any, being sold by the Company, and third, the securities, if
any, of any other securities holder of the Company entitled to incidental
registration rights with respect thereto, subject to the limitations of Section
7.
1.5. No Company or Other Stockholder Initiated Registration; Deferral
of Registration.
(a) After receipt of notice of a requested registration
pursuant to Sections 1.1 or 1.2(b), neither the Company nor any other
Stockholder shall initiate, without the consent of the Requesting Party, a
registration of any Company securities for its own account until 90 days after
such registration has been effected or such registration has been terminated.
(b) Notwithstanding the foregoing, the Company shall have the
right to delay the filing or effectiveness, but not the preparation, of a
registration statement for any requested registration pursuant to Sections 1.1
or 1.2(b) during one or more periods aggregating not more than 90 days in any
12- month period during the term of this Agreement in the event that (i) the
Company would, in accordance with the written advice of its counsel, be required
to disclose in the prospectus contained in such registration statement
information not otherwise required by law to be publicly disclosed and (ii) the
Company has pending or in process a material transaction, the disclosure of
which would, in the good faith judgment of the Board, materially and adversely
affect the Company or the transaction, or (iii) at the time of receipt of notice
of a requested registration pursuant to Sections 1.l or 1.2(b) the Company was
in the process of contemplating a registration of equity securities for its own
account and (A) the Company gives written notice thereof to the Requesting Party
within 10 days after receipt of such registration request and (B) a registration
statement with respect to such Company initiated offering is filed within 60
days of receipt of such notice from the Requesting Party.
2. Incidental Registrations. If the Company at any time proposes to
register any of its equity securities under the Securities Act whether or not
for sale for its own account (other than pursuant to a registration on Form S-4
or S-8 or similar or any successor form) it shall give written notice thereof to
each Stockholder. If within 10 days after the receipt of any such notice, any
Stockholder requests that the Company include all or any portion of the
Registrable Securities owned by such Stockholder in such registration (for
purposes of this Section 2, each holder of Preferred Stock shall be deemed the
owner and holder of the Registrable Securities issuable upon the conversion or
other exercise thereof), then, subject to subsection (a) below, the Company will
give
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prompt written notice to all Stockholders. Upon the written request of any
Stockholder made within 10 days after the receipt of any such notice (which
request shall specify the number of Registrable Securities intended to be
disposed of by such holder and the intended method or methods of disposition
thereof), the Company will use its best efforts to effect the registration under
the Securities Act of such Registrable Securities on a pro rata basis (based on
the number of shares of Registrable Securities owned by each such requesting
Stockholder) in accordance with such intended method or methods of disposition;
provided that:
(a) without the prior written consent of the Stockholders
holding at least 50% of the then outstanding Registrable Securities,
and subject to Section 2(c), the Company shall not include any
registrable securities of holders of Other Registrable Securities in
such proposed registration if it believes in good faith that inclusion
of such securities would not be in the best interests of the Company,
provided that the Company will include in such registration that number
of Registrable Securities of the holders of Registrable Securities that
such managing underwriter and the Company determine would not be
adverse to the best interests of the Company and, provided further that
the Company shall give the holders of Registrable Securities prompt
notice after any such determination has been made (in lieu of the
notice otherwise required under the second sentence of this Section 2);
(b) if, at any time after giving written notice (pursuant to
this Section 2) of its intention to register equity securities and
prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any
reason not to register such equity securities, the Company may, at its
election, give written notice of such determination to each holder of
Registrable Securities and, thereupon, shall not be obligated to
register any Registrable Securities in connection with such
registration (but shall nevertheless pay the Registration Expenses in
connection therewith), without prejudice, however, to the rights of the
Stockholders to request that a registration be effected under Sections
1.1 or 1.2(b); and
(c) if in connection with a registration pursuant to this
Section 2, the managing underwriter of such registration (or, in the
case of an offering that is not underwritten, a nationally recognized
investment banking firm) shall advise the Company in writing (with a
copy to each holder of Registrable Securities requesting registration
thereof) that, in its opinion, the number of securities requested and
otherwise proposed to be included in such registration exceeds the
number which can be sold in such offering without materially and
adversely affecting the offering price or the market price of the
Common Stock or would otherwise jeopardize the offering, then in the
case of any registration pursuant to this Section 2, the Company will
include in such registration to the extent of the
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number which the Company is so advised can be sold in such offering
without such material adverse effect, first the securities, if any,
being sold by the Company or by any other holder of securities of the
Company pursuant to a demand registration right of such holder, second,
the Registrable Securities of the Stockholders and any securities
registrable pursuant to the Existing Incidental Registration Rights
("OTHER REGISTRABLE SECURITIES") to be sold by any member of the
Existing Stockholder Group, on a pro rata basis (based on the number of
shares of Registrable Securities or Other Registrable Securities owned
by each such holder), and third, the securities, if any, of any other
securities holder of the Company entitled to incidental registration
rights with respect thereto, subject to the limitations of Section 7.
The Company will pay all Registration Expenses in connection with each
registration of Registrable Securities requested pursuant to this Section 2;
provided that each seller of Registrable Securities shall pay all Registration
Expenses to the extent required to be paid by such seller under applicable law
and all underwriting discounts and commissions and transfer taxes, if any. No
registration effected under this Section 2 shall relieve the Company from its
obligation to effect registrations under Sections 1.1 or 1.2(b).
3. Registration Procedures. If and whenever the Company is required to
use its best efforts to effect the registration of any Registrable Securities
under the Securities Act as provided in Sections 1.1, 1.2(b) and 2, the Company
will promptly:
(a) prepare, and as soon as practicable, but in any event
within 60 days thereafter, file with the Commission, a registration
statement with respect to such Registrable Securities, make all
required filings with the NASD and use its reasonable best efforts to
cause such registration statement to become effective as soon as
practicable;
(b) prepare and promptly file with the Commission such
amendments and post-effective amendments and supplements to such
registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for
so long as is required to comply with the provisions of the Securities
Act and to complete the disposition of all securities covered by such
registration statement in accordance with the intended method or
methods of disposition thereof, but in no event for a period of more
than six months after such registration statement becomes effective;
(c) furnish copies of all documents proposed to be filed with
the Commission in connection with such registration to counsel selected
by Stockholders holding a majority of the Registrable Securities
requested for inclusion in such registration, and such documents shall
be subject to the review
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of such counsel and the Stockholders, and the Company shall not file
any registration statement or amendment or post-effective amendment or
supplement to such registration statement or the prospectus used in
connection therewith to which either such counsel or the Stockholders
shall have reasonably objected in writing on the grounds that such
amendment or supplement does not comply (explaining why) in all
material respects with the requirements of the Securities Act or of the
rules or regulations thereunder;
(d) furnish to each seller of Registrable Securities, without
charge, such number of conformed copies of such registration statement
and of each such amendment and supplement thereto (in each case
including all exhibits and documents filed therewith) and such number
of copies of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus) and
any other prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such other
documents, as such seller may reasonably request in order to facilitate
the disposition of the Registrable Securities owned by such seller in
accordance with the intended method or methods of disposition thereof;
(e) use its reasonable best efforts to register or qualify
such Registrable Securities covered by such registration statement
under the securities or blue sky laws of such jurisdictions as each
seller shall reasonably request, and do any and all other acts and
things which may be necessary or advisable to enable such seller to
consummate the disposition of such Registrable Securities in such
jurisdictions in accordance with the intended method or methods of
disposition thereof; provided that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified, subject
itself to taxation in any jurisdiction wherein it is not so subject, or
take any action which would subject it to general service of process in
any jurisdiction wherein it is not so subject;
(f) use its reasonable best efforts to cause all Registrable
Securities covered by such registration statement to be registered with
or approved by such other governmental agencies, authorities or self-
regulatory bodies as may be necessary by virtue of the business and
operations of the Company to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities in accordance
with the intended method or methods of disposition thereof;
(g) furnish to each seller of Registrable Securities a signed
counterpart, addressed to the sellers, of
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(i) an opinion of outside counsel for the Company
experienced in securities law matters, dated the effective
date of the registration statement (or, if such registration
includes an underwritten public offering, the date of the
closing under the underwriting agreement), and
(ii) a "comfort" letter (unless the registration is
pursuant to Section 2 and such a letter is not otherwise being
furnished to the Company), dated the effective date of such
registration statement (and if such registration includes an
underwritten public offering, dated the date of the closing
under the underwriting agreement), signed by the independent
public accountants who have issued an audit report on the
Company's financial statements included in the registration
statement, covering such matters as are customarily covered in
opinions of issuer's counsel and in accountants' letters
delivered to the underwriters in underwritten public offerings
of securities, subject to such qualifications as are customary
in opinions and accountants' letters delivered in such
circumstances;
(h) notify each seller of any Registrable Securities covered
by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the
happening of any event or existence of any fact as a result of which
the prospectus included in such registration statement as then in
effect, includes an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing, and, as promptly as is practicable,
prepare and furnish to such seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such securities,
such prospectus shall not include 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 not misleading in light of the
circumstances then existing;
(i) otherwise comply with all applicable rules and regulations
of the Commission, and make available to its security holders, as soon
as reasonably practicable, an earnings statement of the Company (in
form complying with the provisions of Rule 158 under the Securities
Act) covering the period of at least 12 months, but not more than 18
months, beginning with the first month after the effective date of such
registration statement;
(j) notify each seller of any Registrable Securities covered
by such registration statement (i) when the prospectus or any
prospectus supplement or post-effective amendment has been filed, and,
with respect to such registration statement or any post-effective
amendment, when the same has become effective,
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(ii) of any request by the Commission for amendments or supplements to
such registration statement or to amend or to supplement such
prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation of any proceedings for that
purpose and (iv) of the suspension of the qualification of such
securities for offering or sale in any jurisdiction, or of the
institution of a any proceedings for any of such purposes;
(k) use every reasonable effort to obtain the lifting of any
stop order that might be issued suspending the effectiveness of such
registration statement as soon as practicable;
(l) use its reasonable best efforts (i) (A) to list such
Registrable Securities on any securities exchange on which the equity
securities of the Company are then listed or, if no such equity
securities are then listed, on an exchange selected by the Company if
such listing is then permitted under the rules of such exchange, or (B)
if such listing is not practicable, to secure designation of such
securities as a NASDAQ "national market system security" within the
meaning of Rule 11Aa2-1 under the Exchange Act or, failing that, to
secure NASDAQ authorization for such Registrable Securities, and,
without limiting the foregoing, to arrange for at least two market
makers to register as such with respect to such Registrable Securities
with the NASD, and (ii) to provide a transfer agent and registrar for
such Registrable Securities not later than the effective date of such
registration statement and to instruct such transfer agent (A) to
release any stop transfer order with respect to the certificates with
respect to the Registrable Securities being sold and (B) to furnish
certificates without restrictive legends representing ownership of the
shares being sold, in such denominations requested by the sellers of
the Registrable Securities or the lead underwriter;
(m) enter into such agreements and take such other actions as
the sellers of Registrable Securities or the underwriters reasonably
request in order to expedite or facilitate the disposition of such
Registrable Securities, including, without limitation, preparing for,
and participating in, such number of "road shows" and all such other
customary selling efforts as the underwriters reasonably request in
order to expedite or facilitate such disposition;
(n) furnish to any holder of such Registrable Securities such
information and assistance as such holder may reasonably request in
connection with any "due diligence" effort which such seller deems
appropriate; and
(o) use its best efforts to take all other steps necessary to
effect the registration of such Registrable Securities contemplated
hereby.
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As a condition to its registration of Registrable Securities of any
prospective seller, the Company may require such seller of any Registrable
Securities as to which any registration is being effected to furnish to the
Company such information regarding such seller, its ownership of Registrable
Securities and the disposition of such Registrable Securities as the Company may
from time to time reasonably request in writing and as shall be required by law
in connection therewith, together with such certificates, if any, as may be
required to permit the delivery of the opinions and comfort letters contemplated
by Section 3(g) and the execution of the underwriting agreement and the delivery
of the documents required to be delivered thereunder. Each such holder agrees to
furnish promptly to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such holder
not materially misleading.
The Company agrees not to file or make any amendment to any
registration statement with respect to any Registrable Securities, or any
amendment of or supplement to the prospectus used in connection therewith, which
refers to any seller of any Registrable Securities covered thereby by name, or
otherwise identifies such seller as the holder of any Registrable Securities,
without the consent of such seller, such consent not to be unreasonably withheld
or delayed, unless such disclosure is required by law.
By acquisition of Registrable Securities, each holder of such
Registrable Securities shall be deemed to have agreed that upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 3(h), such holder will promptly discontinue such holder's disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(h). If so directed
by the Company, each holder of Registrable Securities will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
in such holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice. In the event that the Company
shall give any such notice, the period mentioned in Section 3(b) shall be
extended by the number of days during the period from and including the date of
the giving of such notice to and including the date when each seller of any
Registrable Securities covered by such registration statement shall have
received the copies of the supplemented or amended prospectus contemplated by
Section 3(h).
4. Underwritten Offerings.
4.1. Underwriting Agreement. If requested by the underwriters for any
underwritten offering pursuant to a registration requested under Sections 1.1,
1.2(b) or 2, the Company shall enter into an underwriting agreement with the
underwriters for such offering, such agreement to be reasonably satisfactory in
substance and form to the underwriters and to the Stockholders holding a
majority of the Registrable Securities
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requested for inclusion in such registration. Any such underwriting agreement
shall contain such representations and warranties by the Company and such other
terms and provisions as are customarily contained in agreements of this type,
including, without limitation and unless waived by all Stockholders
participating in such registration, indemnities to the effect and to the extent
provided in Section 9. The holders of Registrable Securities to be distributed
by such underwriter shall be parties to such underwriting agreement and may, at
their option, require that any or all of the representations and warranties by,
and the agreements on the part of, the Company to and for the benefit of such
underwriters be made to and for the benefit of such holders of Registrable
Securities and that any or all of the conditions precedent to the obligations of
such underwriters under such underwriting agreement shall also be conditions
precedent to the obligations of such holders of Registrable Securities. No
underwriting agreement (or other agreement in connection with such offering)
shall require any Stockholder, in its capacity as stockholder or controlling
Person, to make any representations or warranties to, or agreements with, the
Company or the underwriters other than representations, warranties or agreements
regarding such holder, the ownership of such ho holder's Registrable Securities
and such holder's intended method or methods of disposition and any other
representation required by law or to furnish any indemnity to any Person which
is broader than the indemnity furnished by such holder pursuant to Section 9.2.
4.2. Selection of Underwriters. If the Company at any time proposes to
register any of its securities under the Securities Act for sale for its own
account pursuant to an underwritten offering in which holders of Registrable
Securities are participants, the Company will have the right to select the
managing underwriter (which shall be of nationally recognized standing) to
administer the offering; provided that the Company must obtain the prior
approval of its selection of a managing underwriter, such approval not to be
unreasonably withheld, from any Stockholder who, individually or acting with a
group, owns at least 20% of the aggregate number of shares (or rights to acquire
shares) of Registrable Securities proposed to be registered in the registration.
Notwithstanding the foregoing sentence, whenever a registration requested
pursuant to Sections 1.1 or 1.2(b) is for an underwritten offering, the
Requesting Party will have the right to select the managing underwriter (which
shall be of nationally recognized standing) to administer the offering, but only
with the approval of the Company, such approval not to be unreasonably withheld.
5. Holdback Agreements.
(a) If and whenever the Company proposes to register any of
its equity securities under the Securities Act for its own account (other than
on Form S-4 or S-8 or any successor form) or is required to use its best efforts
to effect the registration of any Registrable Securities under the Securities
Act pursuant to Sections 1.1, 1.2(b) or 2, each holder of Registrable Securities
agrees by acquisition of such Registrable Securities not
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to request registration under Section 1.1 or 1.2(b) of any Registrable
Securities and, if it is then an officer, director or the beneficial owner
(determined in accordance with Rule 13d-3 under the Exchange Act) of more than
5% of any class of the Company's equity securities (or any securities
convertible into or exchangeable or exercisable for any of such securities), not
to effect any public sale or distribution of the Company's equity securities
(other than pursuant to such registration), within seven days prior to and 90
days (unless advised in writing by the managing underwriter that a longer
period, not to exceed 180 days, is required, or such shorter period as the
managing underwriter for any underwritten offering may agree) after the
effective date of the registration statement relating to such registration,
except its part of such registration.
(b) The Company agrees not to effect any public sale or
distribution of its equity securities or securities convertible into or
exchangeable or exercisable for any of such securities within seven days prior
to and 90 days (unless advised in writing by the managing underwriter that a
longer period, not to exceed 180 days, is required, or such shorter period as
the managing underwriter for any underwritten offering may agree) after the
effective date of any registration statement filed pursuant to Section 1.1 or
1.2(b) (except as part of such registration or pursuant to a registration on
Form S-4 or S-8 or any successor form). In addition, upon the request of the
managing underwriter, the Company shall use its reasonable best efforts to cause
each officer, director or beneficial owner (determined in accordance with Rule
13d-3 under the Exchange Act) of more than 5% of any class of the Company's
equity securities (or any securities convertible into or exchangeable or
exercisable for any of such securities), other than any such securities acquired
in a public offering, to agree not to effect any such public sale or
distribution of such securities during such period, except as part of any such
registration if permitted, and to cause each such officer, director and
beneficial holder to enter into a similar agreement to such effect with the
Company.
6. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement registering Registrable
Securities under the Securities Act, the Company will give the holders of such
Registrable Securities so to be registered and their underwriters, if any, and
their respective counsel and accountants the opportunity to participate in the
preparation of such registration statement, each prospectus included therein or
filed with the Commission, and each amendment thereof or supplement thereto, and
will give each of them such access to the financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have issued audit reports on its financial
statements as shall be reasonably requested by such holders in connection with
such registration statement.
7. No Grant of Future Registration Rights. The Company shall not,
during the term of this Agreement, grant to any Person (a) any other demand
registration rights,
12
or (b) any incidental registration rights that are of a higher priority to the
rights granted to the holders of Registrable Securities under Section 2 hereof,
in each case, without the prior written consent of the Principal Stockholders,
so long as they continue to own at least 10% of the number of shares of
Registrable Securities represented by ownership of the Preferred Stock held by
such Stockholder on the date hereof.
8. [Reserved]
9. Indemnification.
9.1. Indemnification by the Company. In the event of any registration
of any Registrable Securities pursuant to this Agreement, the Company agrees to
indemnify, defend and hold harmless (a) each seller of such Registrable
Securities, (b) the directors, members, stockholders, officers, partners,
employees, agents and Affiliates of such seller, (c) each Person who
participates as an underwriter in the offering or sale of such securities, and
(d) each person, if any, who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) any of the foregoing, against
any and all losses, claims, damages, expenses or other liabilities (or actions
or proceedings in respect thereof), jointly or severally, directly or
indirectly, based upon or arising out of (i) any untrue statement or alleged
untrue statement of a fact contained in any registration statement under which
such Registrable Securities were registered under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained therein
or used in connection with the offering of securities covered thereby, or any
amendment or supplement thereto, or (ii) any omission or alleged omission to
state a fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as any such loss, claim, damage,
liability, action, proceeding or expense arises out of or is based upon (A) an
untrue statement or omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by such seller expressly for use in the preparation thereof, or
(B) any preliminary prospectus to the extent that any such loss claim, damage,
liability, action or proceeding results solely from the fact that the seller
sold Registrable Securities to a person as to whom the Company shall establish
that there was not sent by commercially reasonable means, at or prior to the
written confirmation of such sale, a copy of the final prospectus in any case
where such delivery is required by the Securities Act, if the Company has
previously furnished copies thereof in sufficient quantity to the seller or the
underwriters for such offering and the loss, claim, damage, liability, action or
proceeding results from an untrue statement or omission of a material fact
contained in the preliminary prospectus that was corrected in the final
prospectus or (C) any untrue statement or omission made in such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement and the Company has provided seller sufficient copies of
updates of the aforementioned documents correcting such untrue statement or
omission, or otherwise notified in writing the seller of such
13
untrue statement or omission and expressly advised the seller not to sell the
Registrable Securities until such untrue statement or omission was corrected, in
each case only to the extent that loss, claim, damage, liability, action,
proceeding or expense results solely from the fact that the seller did not take
reasonable steps to halt the sale of such Registrable Securities within a
reasonable time after having actually received such written notice of such
untrue statement or omission and advice or sold such Registrable Securities
after having been furnished with such correcting update but without sending such
correcting update to a person by commercially reasonable means at or prior to
written confirmation of sale. The Company will reimburse each such indemnified
party for any legal or any other expenses reasonably incurred by them in
connection with enforcing its rights hereunder or under the underwriting
agreement entered into in connection with such offering or investigating,
preparing, pursuing or defending any such loss, claim, damage, liability, action
or proceeding. Such indemnity shall remain in full force and effect regardless
of any investigation made by such indemnified party and shall survive the
transfer of such Registrable Securities by such seller. If the Company is
entitled to, and does, assume the defense of the related action or proceedings
provided herein, then the indemnity agreement contained in this Section 9.1
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, action or proceeding if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld or
delayed). The Company shall also indemnify any underwriters of the Registrable
Securities, their officers, directors and employees, and each person who
controls (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) to the same extent as provided above with respect to
indemnification of the seller of Registrable Securities.
9.2. Indemnification by the Sellers. The Company may require, as a
condition to including any Registrable Securities in any registration statement
filed pursuant to Sections 1.1, 1.2(b) or 2 that the Company shall have received
an undertaking reasonably satisfactory to it from each of the prospective
sellers of such Registrable Securities to indemnify and hold harmless,
severally, not jointly, in the same manner and to the same extent as set forth
in Section 9.1, the Company, its directors, officers, employees, agents and each
person, if any, who controls (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) the Company, but only with respect to any
written information furnished to the Company by such seller expressly for use in
the preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. (The Company and the
holders of the Registrable Securities hereby acknowledge and agree that unless
otherwise expressly agreed to in writing by such holders, the only information
furnished or to be furnished to the Company for use in any registration
statement or prospectus relating to the Registrable Securities or in any
amendment, supplement or preliminary materials associated therewith are
statements specifically relating to (a) transactions between such holder and its
Affiliates, on the one hand, and the Company, on the other hand, (b) the
beneficial ownership of shares of Common Stock by such holder and its Affiliates
and
14
(c) the name and address of such holder. If any additional information about
such holder or the plan of distribution (other than for an underwritten
offering) is required by law to be disclosed in any such document, then such
holder shall not unreasonably withhold its agreement referred to in the
immediately preceding sentence of this Section 9.2.) Such indemnity shall remain
in full force and effect, regardless of any investigation made by or on behalf
of the Company or any such director, officer or controlling Person and shall
survive the transfer of such Registrable Securities by such seller. The
indemnity agreement contained in this Section 9.2 shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability, action or
proceeding if such settlement is effected without the consent of such seller
(which consent shall not be unreasonably withheld or delayed). The indemnity
provided by each seller of Registrable Securities under this Section 9.2 shall
be limited in amount to the net amount of proceeds actually received by such
seller from the sale of Registrable Securities pursuant to such registration
statement giving rise to such liability.
9.3. Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding paragraphs of this Section 9, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the indemnifying party of the
commencement of such action or proceeding, provided that the failure of any
indemnified party to give notice as provided herein a shall not relieve the
indemnifying party of its obligations under the preceding paragraphs of this
Section 9, except to the extent that the indemnifying party is materially
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party, the indemnifying party will be entitled to
participate therein and to assume the defense thereof jointly with any other
indemnifying party similarly notified, to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof except for the reasonable fees and
expenses of any counsel retained by such indemnified party to monitor such
action or proceeding. Notwithstanding the foregoing, if such indemnified party
reasonably determines, based upon advice of counsel, that either a conflict of
interest may exist between the indemnified party and the indemnifying party with
respect to such action and that it is advisable for such indemnified party to be
represented by separate counsel or 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, such indemnified party may retain other counsel, reasonably
satisfactory to the indemnifying party, to represent such indemnified party, and
the indemnifying party shall pay all reasonable fees and expenses of such
counsel. No indemnifying party, in the defense of any such claim or litigation,
shall, except with the consent of such indemnified party, which consent shall
not be unreasonably withheld, consent to entry of any judgment or enter into any
settlement which does not include as
15
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect of such claim or
litigation. The rights accorded to any indemnified party hereunder shall be in
addition to any rights that such indemnified party may have at common law, by
separate agreement or otherwise.
9.4. Other Indemnification. Indemnification similar to that specified
in the preceding paragraphs of this Section 9 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration (other than under the Securities Act) or
other qualification of such Registrable Securities under any federal or state
law or regulation of any governmental authority.
9.5. Indemnification Payments. Any indemnification required to be made
by an indemnifying party pursuant to this Section 9 shall be made by periodic
payments to the indemnified party during the course of the action or proceeding,
as and when bills are received by such indemnifying party, with respect to an
indemnifiable loss, claim, damage, liability or expense incurred by such
indemnified party.
9.6. Other Remedies. If for any reason the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party, other
than by reason of the exceptions provided therein, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such losses, claims, damages, liabilities, actions, proceedings or
expenses in such proportion as is appropriate to reflect the relative benefits
to and faults of the indemnifying party on the one hand and the indemnified
party on the other in connection with the offering of Registrable Securities and
the statements or omissions or alleged statements or omissions which resulted in
such loss, claim, damage, liability, action, proceeding or expense, as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statements or omissions. 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. No party shall be liable for contribution under this Section
9.6 except to the extent as such party would have been liable to indemnify under
this Section 9 if such indemnification were enforceable under applicable law.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 9.6 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.
16
10. Representations and Warranties. Each Initial Stockholder, severally
and not jointly, represents and warrants to the Company and each other Initial
Stockholder that:
(i) such Initial Stockholder has the power, authority and capacity (or,
in the case of any Initial Stockholder that is a corporation, proprietary
company, limited liability company or limited partnership, all corporate,
limited liability company or limited partnership power and authority, as the
case may be) to execute, deliver and perform this Agreement;
(ii) in the case of an Initial Stockholder that is a corporation,
proprietary company, limited liability company or limited partnership, the
execution, delivery and performance of this Agreement by such Initial
Stockholder has been duly and validly authorized and approved by all necessary
corporate, limited liability company or limited partnership action, as the case
may be;
(iii) this Agreement has been duly and validly executed and delivered
by such Initial Stockholder and constitutes a valid and legally binding
obligation of such Initial Stockholder, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting or relating to creditors' rights generally and general
principles of equity; and
(iv) the execution, delivery and performance of this Agreement by such
Initial Stockholder does not and will not violate the terms of or result in the
acceleration of any obligation under (A) any material contract, commitment or
other material instrument to which such Stockholder is a party or by which such
Initial Stockholder is bound, (B) in the case of an Initial Stockholder that is
a corporation, proprietary company, limited liability company or limited
partnership, the certificate of incorporation, certificate of formation,
certificate of limited partnership, by-laws, operating agreement or limited
partnership agreement, as the case may be, or (C) any law, statute, regulation,
order or decree applicable to such Initial Stockholder.
11. Definitions. For purposes of this Agreement, the following terms
shall have the following respective meanings:
AFFILIATE: (i) with respect to any Person, a Person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with, such Person, and (ii) with respect to any natural
Person, (A) the spouse, parents and direct descendants of such Person, (B) the
estate, testamentary trust, trustees, executors, administrators, legatees or
testamentary beneficiaries of such Person, and (C) any trust established by such
Person for the exclusive benefit of any of the foregoing Persons.
17
AFFILIATED STOCKHOLDER: with respect to the Initial Stockholders, each
of their respective Affiliates, in each case, if and so long as it owns any
Registrable Securities and has agreed in writing to be bound by the terms and
conditions of this Agreement, a copy of which agreement shall have been
delivered to the Company.
BOARD: the board of directors of the Company.
CARGILL REGISTRATION RIGHTS AGREEMENT: as defined in the recitals to
this Agreement.
COMMISSION: the U.S. Securities and Exchange Commission or any other
United States federal agency then administering the Securities Act and other
federal securities laws.
COMMON STOCK: the common stock of the Company, par value $.01 per
share, and any securities into which such common stock shall have been changed
or any securities resulting from any reclassification of such Common Stock.
COMPANY: as defined in the preamble to this Agreement.
CTW REGISTRATION RIGHTS AGREEMENT: as defined in the recitals to this
Agreement.
DEMAND REGISTRATION: as defined in Section 1.1.
EXCHANGE ACT: the U.S. Securities Exchange Act of 1934, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder which shall be in effect at the time.
EXISTING INCIDENTAL REGISTRATION RIGHTS: rights of any member of the
Existing Stockholder Group under any Existing Registration Rights Agreement to
require the inclusion of Other Registrable Securities in connection with a
proposed registration by the Company of its equity securities under the
Securities Act, whether or not for sale for its own account.
EXISTING REGISTRATION RIGHTS AGREEMENTS: as defined in the recitals to
this Agreement.
EXISTING STOCKHOLDER GROUP: the group the members of which are (i) all
holders of Registrable Securities (as defined in each Existing Registration
Rights Agreement), and in each case, (ii) each Affiliated Stockholder (as
defined in each Existing Registration Rights Agreement), and (iii) each
Permitted Transferee (as defined in each Existing Registration Rights
Agreement), in any case, if and so long as it owns any Registrable Securities
(as defined in each Existing Registration Rights Agreement).
18
ING REGISTRATION RIGHTS AGREEMENT: as defined in the recitals to this
Agreement.
INITIAL STOCKHOLDERS: as defined in the recitals to this Agreement.
NASD: National Association of Securities Dealers, Inc.
NASDAQ: the Nasdaq National Market.
OTHER REGISTRABLE SECURITIES: as defined in Section 2(c).
PERMITTED TRANSFEREES: as defined in Section 12.2.
PERSON: an individual, corporation, partnership, limited liability
company, joint venture, proprietary company, association, trust or other entity
or organization, including a government or political subdivision or an agency or
instrumentality, thereof.
PREFERRED STOCK: as defined in the recitals to this Agreement.
PRINCIPAL STOCKHOLDERS: Madison West Associates Corp., C.P.
International Investments Ltd., The ▇▇▇▇▇ Family Limited Partnership and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇.
PURCHASE AGREEMENT: as defined in the recitals to this Agreement.
REGISTRABLE SECURITIES: (i) any Common Stock issued or issuable upon
the conversion of or other exercise of rights under the Preferred Stock held by
the Stockholders or (ii) any equity securities issued or issuable directly or
indirectly with respect to the securities referred to in clause (i) by way of
conversion or exchange thereof or share dividend or share split or in connection
with a combination of shares, recapitalization, reclassification, merger,
amalgamation, arrangement, consolidation or other reorganization. As to any
particular shares constituting Registrable Securities, such shares will cease to
be Registrable Securities when they have been (x) effectively registered under
the Securities Act and disposed of in accordance with the Registration Statement
covering therein, or (y) sold to the public through a broker, dealer or market
maker pursuant to Rule 144 or other exemption from the registration requirements
of the Securities Act. For purposes of this Agreement, a Person will be deemed
to be a holder of Registrable Securities whenever such Person has the right to
acquire directly or indirectly such Registrable Securities (upon conversion or
exercise in connection with a transfer of securities or otherwise, but
disregarding any restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected.
REGISTRATION EXPENSES: all expenses incident to the Company's
performance of or compliance with any registration pursuant to this Agreement,
including, without limitation, (i) registration, filing and NASD fees, (ii) fees
and expenses of complying
19
with securities or blue sky laws, (iii) fees and expenses associated with
listing securities on an exchange or NASDAQ, (iv) word processing, duplicating
and printing expenses, (v) messenger and delivery expenses, (vi) transfer
agents', trustees', depositories', registrars' and fiscal agents fees, (vii)
fees and disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or "cold comfort"
letters, (viii) reasonable fees and disbursements of any one counsel retained by
the sellers of Registrable Securities, which counsel shall be designated in the
manner specified in Section 3 and (ix) any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but excluding
underwriting discounts and commissions and transfer taxes, if any.
REQUESTING PARTY: as defined in Section 1.1.
REQUISITE STOCKHOLDERS: at any time, Stockholders holding in the
aggregate at least 20% of the then outstanding Registrable Securities.
SECURITIES ACT: the U.S. Securities Act of 1933, as amended, or any
similar U.S. federal statute, and the rules and regulations of the Commission
thereunder which shall be in effect at the time.
STOCKHOLDERS: (i) each Initial Stockholder and, in each case, (ii)
each Affiliated Stockholder, and (iii) each Permitted Transferee, in any case,
if and as long as such Person owns any Registrable Securities.
12. Miscellaneous.
12.1. Rule 144, etc. If the Company shall have filed a registration
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act
relating to any class of securities, the Company will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the Commission thereunder, and will take such further
action as any holder of Registrable Securities may reasonably request, all to
the extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (A) Rule 144 under the Securities Act, as such
rule may be amended from time to time or (b) any successor rule or regulation
hereafter adopted by the Commission. Upon the request of any holder of
Registrable Securities the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
12.2. Successors, Assigns and Transferees. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
predecessors and permitted assigns under this Section 12.2. Provided that an
express assignment shall
20
have been made, a copy of which shall have been delivered to the Company, the
provisions of this Agreement which are for the benefit of a holder of
Registrable Securities shall be for the benefit of and enforceable by any
subsequent holder of any Registrable Securities ("PERMITTED TRANSFEREES"),
subject to the provisions respecting the minimum numbers or percentages of
shares of Registrable Securities required in order to be entitled to certain
rights, or to take certain actions, contained herein.
12.3. Amendment and Modification. This Agreement may be amended,
modified or supplemented by the Company only with the written consent of each of
the Principal Stockholders, in each case so long as it owns at least 50% of the
Registrable Securities originally owned by it that remain Registrable Securities
and, if any such Principal Stockholder no longer owns at least 50% of such
Registrable Securities, Principal Stockholders holding at least 50% of such
Registrable Securities.
12.4. Governing Law. This Agreement and the rights and obligations of
the parties hereunder and the persons subject hereto shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York,
without giving effect to the choice of law principles thereof.
12.5. Invalidity Provision. The invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity or
enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that provision, in any
other jurisdiction.
12.6. Notices. All notices, requests, demands, letters, waivers and
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed, certified or registered mail with postage prepaid, (c)
sent by next-day or overnight mail or delivery or (d) sent by telecopy, as
follows:
(i) If to the Company, to it at:
MCM Capital Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
21
with a copy to:
MCM Capital Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
One Arizona Center
Phoenix, Arizona
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to the Stockholders, to them at the addresses set forth in Schedule
A and with a copy (which shall not constitute notice) to:
Debevoise & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
and to
C.P. International Investments Ltd.
▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Attention: General Counsel
Telecopier No.: (▇▇▇) ▇▇▇ ▇▇▇▇ ▇▇▇▇
22
and to
Madison West Associates Corp.
c/o Triarc Companies, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other Person or address as any party shall specify by notice in
writing to the Company. All such notices, requests, demands, letters, waivers
and other communications shall be deemed to have been received (w) if by
personal delivery on the day after such delivery, (x) if by certified or
registered mail, on the eighth business day after the mailing thereof, (y) if by
next-day or overnight mail or delivery, on the day delivered or (z) if by
telecopy, on the next day following the day on which such telecopy was sent,
provided that a copy is also sent by certified or registered mail.
12.7. Headings; Execution in Counterparts. The headings and captions
contained herein are for convenience and shall not control or affect the meaning
or construction of any provision hereof. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and
which together shall constitute one and the same instrument.
12.8. Injunctive Relief. Each of the parties recognizes and agrees that
money damages may be insufficient and, therefore, in the event of a breach of
any provision of this Agreement the aggrieved party may elect to institute and
prosecute proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach of this Agreement. Such remedies
shall, however, be cumulative and not exclusive, and shall be in addition to any
other remedy which such party may have.
12.9. Term. This Agreement shall be effective as of the date hereof and
shall continue in effect thereafter until the earlier of (a) its termination by
the consent of the parties hereto or their respective successors in interest,
(b) the date on which no Registrable Securities remain outstanding, and (c) the
date on which the Requesting Parties have collectively exhausted their
respective rights to request registrations under Sections 1.1 and 1.2(b) and all
remaining Registrable Securities are subject to immediate resale by the holder
thereof without regard to volume limitation pursuant to paragraph (k) of Rule
144 under the Securities Act; provided that after the date on which the
Requesting Parties have collectively exhausted their respective rights to
request registrations under Sections 1.1 and 1.2(b), the rights and obligations
under this Agreement of any individual holder of Registrable Securities shall
terminate if and when all of such holder's Registrable Securities are subject to
immediate resale without regard to volume limitation pursuant to paragraph (k)
of Rule 144 under the Securities Act.
23
12.10. Further Assurances. Subject to the specific terms of this
Agreement, each of the Company and the Stockholders shall make, execute,
acknowledge and deliver such other instruments and documents, and take all such
other actions, as may be reasonably required in order to effectuate the purposes
of this Agreement and to consummate the transactions contemplated hereby.
12.11. Entire Agreement. This Agreement is intended by the parties
hereto as a final expression of their agreement and intended to be a complete
and exclusive statement of their agreement and understanding in respect of the
subject matter contained herein. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
24
IN WITNESS WHEREOF this Agreement has been signed by each of the
parties hereto and shall be effective as of the date first above written
MCM CAPITAL GROUP, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Title: President
C.P. INTERNATIONAL INVESTMENTS
LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
MADISON WEST ASSOCIATES CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
& CFO
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ Neville ▇▇▇▇ ▇▇▇▇
-------------------------------
signed by Neville ▇▇▇▇ ▇▇▇▇,
Power of Attorney for
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
THE ▇▇▇▇▇ FAMILY LIMITED
PARTNERSHIP
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: General Partner
▇▇▇▇▇▇▇▇ ▇. MAY 1998 TRUST
By: /s/ ▇▇▇▇▇ ▇. May
-------------------------------
Name: ▇▇▇▇▇ ▇. May
Title: Co-Trustee
▇▇▇▇▇▇ ▇. MAY 1998 TRUST
By: /s/ ▇▇▇▇▇ ▇. May
-------------------------------
Name: ▇▇▇▇▇ ▇. May
Title: ▇▇-▇▇▇▇▇▇▇
▇-▇
▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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S-2
