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EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Registration Agreement")
entered into and made effective as of March 23, 2001, by and among THE XXXX
GROUP INC., a Louisiana corporation ("Xxxx") and XXXXX, XXXXX & XXXXXXXX, INC.,
a Louisiana corporation, and successor by merger to S. S. & S. FABRICATORS,
INC., a Louisiana corporation, and TECHNICOMP, INC., a Louisiana corporation
(collectively, the "Sellers") and the undersigned shareholders of Sellers that
shall become a party to this Registration Agreement by deliverying to Xxxx a
duplicate original signature page (collectively the "Shareholders").
PRELIMINARY STATEMENT
Shaw, Sellers and Xxxx SSS Fabricators, Inc., a Louisiana corporation
and wholly-owned subsidiary of Shaw, are parties to that certain Plan of
Reorganization (Asset Purchase) dated as of March 23, 2001, (the "Agreement")
pursuant to which, on the date hereof, Shaw is issuing shares of Xxxx'x common
stock, no par value (the "Shaw Shares") to Sellers, which will distribute all or
a portion of the Shaw Shares to their respective Shareholders pursuant to the
plans of liquidation that are described in the plan of liquidation ("Plan of
Liquidation"). All capitalized terms used herein which are not otherwise
expressly defined herein shall have the respective meanings set forth in the
Agreement.
NOW, THEREFORE, in consideration of the transactions effected pursuant
to the Agreement and the premises and the mutual agreements set forth herein,
Shaw, Sellers and the Shareholders hereby agree as follows:
1. The Shares shall bear a legend substantially identical to the
following:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR APPLICABLE STATE LAW, AND NO INTEREST THEREIN MAY
BE SOLD, DISTRIBUTED, ASSIGNED, OFFERED, PLEDGED OR OTHERWISE
TRANSFERRED UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS
COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES, OR
(ii) THIS CORPORATION RECEIVES AN OPINION SATISFACTORY TO THIS
CORPORATION OF LEGAL COUNSEL FOR THE HOLDER OF THESE
SECURITIES SATISFACTORY TO THIS CORPORATION STATING THAT SUCH
TRANSACTION IS EXEMPT FROM REGISTRATION. THE SECURITIES
EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO (A) THE
RESTRICTIONS SET FORTH IN THAT CERTAIN PLAN OF REORGANIZATION
(ASSET PURCHASE) DATED AS OF MARCH 23, 2001
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(THE "AGREEMENT") AMONG THIS CORPORATION, XXXX SSS
FABRICATORS, INC., XXXXX, XXXXX & XXXXXXXX, INC., S. S. & S.
FABRICATORS, INC. AND TECHNICOMP, INC., AND (B) THE
RESTRICTIONS SET FORTH IN THE REGISTRATION RIGHTS AGREEMENT
DATED AS OF MARCH 23, 2001 (THE "REGISTRATION AGREEMENT") BY
AND AMONG THIS CORPORATION AND XXXXX, XXXXX & XXXXXXXX, INC.,
S. S. & S. FABRICATORS, INC. AND TECHNICOMP, INC. AND THEIR
RESPECTIVE SHAREHOLDERS. COPIES OF THE AGREEMENT AND THE
REGISTRATION AGREEMENT ARE FILED WITH THE SECRETARY OF THIS
CORPORATION.
2. Shaw represents and warrants to Sellers and the Shareholders that the
Shaw Shares are (a) duly authorized, validly issued, fully paid and
nonassessable and (b) free and clear of all liens, claims and
encumbrances other than those created by any action or inaction of
Sellers or the Shareholders.
3. Shaw represents and warrants that (a) it has the corporate power and
authority to enter into and perform its obligations under this
Agreement, (b) this Registration Agreement has been duly and validly
authorized by all necessary action, corporate or otherwise, (c) this
Registration Agreement has been duly executed and delivered by it, and
(d) this Registration Agreement constitutes the valid and legally
binding obligation of it, enforceable against it in accordance with its
terms, except that (i) the enforceability hereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereinafter in effect relating
to creditors' rights generally and (ii) the remedy of specific
performance and other forms of equitable relief may be subject to
certain equitable defenses and to the discretion of the court before
which proceeding therefor may be brought.
4. Each Seller and the Shareholders represent and warrant, as applicable,
that (a) each has the power and authority to enter into and perform its
obligations under this Registration Agreement, (b) each Seller and
Shareholder is an individual, trust or corporation and (as appropriate)
is duly organized, validly existing and has the full legal capacity and
competency to enter this Registration Agreement, (c) this Registration
Agreement has been duly and validly authorized by all necessary action
of each, (d) this Registration Agreement has been duly executed and
delivered by each, and (e) this Registration Agreement constitutes the
valid and legally binding obligation of each, enforceable against each
in accordance with its terms, except that (i) the enforceability hereof
may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereinafter in
effect relating to creditors' rights generally and (ii) the remedy of
specific performance and other forms of equitable relief may be subject
to certain equitable defenses and to the discretion of the court before
which proceeding therefor may be brought.
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5. (a) Shaw shall take all steps within its control to cause to be filed
with the Securities and Exchange Commission (the "Commission") within
thirty (30) days after the Closing under the Agreement, a shelf
registration statement pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Shelf Registration Statement") on Form S-3, if
the use of such form is then available and as determined by Shaw, to
cover resales of Transfer Restricted Securities (as hereinafter
defined) by Sellers and Shareholders to whom Transfer Restricted
Securities have been distributed pursuant to the Plan of Liquidation;
provided, the foregoing 30-day period shall be extended by the delay of
either Sellers or the Shareholders to provide Shaw with the information
required pursuant to Section 5(b) hereof. Sellers and the Shareholders
shall provide the information required pursuant to Section 5(b) hereof.
Shaw shall use commercially reasonable efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on or
prior to 60 days after the date the Shelf Registration Statement is
initially filed with the Commission. Xxxx shall use commercially
reasonable efforts to keep such Shelf Registration Statement
continuously effective for a period ending when Rule 144(k) becomes
available to Sellers and the Shareholders for sales of the Transfer
Restricted Securities or such shorter period as will terminate when
each of the Transfer Restricted Securities covered by the Shelf
Registration Statement shall cease to be a Transfer Restricted
Security.
If there shall occur any event that would cause the Shelf Registration
Statement (i) to contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) to be
not effective and usable for resale of Transfer Restricted Securities
during the period that such Shelf Registration Statement is required to
be effective and usable, Shaw shall immediately notify Sellers and the
Shareholders thereof and shall as promptly as practicable (but not
later than 60 days) file an amendment to the Shelf Registration
Statement, in the case of clause (i), correcting any such misstatement
or omission, and in the case of either clause (i) or (ii), use
commercially reasonable efforts to cause such amendment to be declared
effective and such Shelf Registration Statement to become usable as
soon as practicable thereafter.
Notwithstanding anything to the contrary in this Section 5, Shaw may
prohibit offers and sales of Transfer Restricted Securities pursuant to
the Shelf Registration Statement at any time if (A)(i) it is in
possession of material non-public information, (ii) the Board of
Directors of Shaw determines (based on advice of counsel) that such
prohibition is necessary in order to avoid a requirement to disclose
such material non-public information, and (iii) the Board of Directors
of Shaw determines in good faith that disclosure of such material
non-public information would not be in the best interests of Shaw and
its shareholders or (B) Shaw has made a public announcement relating to
an acquisition or business combination transaction including Shaw
and/or one or more of its subsidiaries (i) that is material to Shaw and
its subsidiaries taken as a whole and (ii) the Board of Directors of
Shaw determines in good faith that offers
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and sales of Transfer Restricted Securities pursuant to the Shelf
Registration Statement prior to the consummation of such transaction
(or such earlier date as the Board of Directors shall determine) is not
in the best interests of Shaw and its shareholders or (C)(i) disclosure
is required in the Shelf Registration Statement of financial
information of any person or entity other than Shaw or its subsidiaries
and affiliates pursuant to Article 3 or Article 11 of Regulation S-X
under the Securities Act of 1933, as amended (the "Securities Act") and
(ii) any of such required financial information (including related
audit reports and consents of independent accountants) is not available
to Shaw after use of commercially reasonable efforts to obtain such
financial information) (the period during which any such prohibition of
offers and sales of Transfer Restricted Securities pursuant to the
Shelf Registration Statement is in effect pursuant to clause (A) or (B)
of this subparagraph (a) is referred to herein as a "Suspension
Period"). A Suspension Period shall commence on and include the date on
which Shaw provides written notice to Sellers and Shareholders that
offers and sales of Transfer Restricted Securities pursuant to the
Shelf Registration Statement and use of the prospectus constituting a
part of the Shelf Registration Statement is suspended pursuant to this
paragraph, and the date on which Shaw provides written notice to
Sellers and the Shareholders that offers and sales of Transfer
Restricted Securities pursuant to the Shelf Registration Statement and
use of the prospectus constituting a part of the Shelf Registration
Statement may be resumed; provided, however, that the aggregate number
of days in all Suspension Periods shall not exceed 60. Written notices
and advices to Sellers pursuant to this Section 5 shall be effective if
given in accordance with Section 11.
(b) Sellers and the Shareholders shall furnish to Shaw in writing,
within 5 business days after receipt of a request therefor, such
information as Shaw may reasonably request for use in connection with
any Shelf Registration Statement or prospectus or preliminary
prospectus included therein.
(c) For purposes of this Section 5, "Transfer Restricted Securities"
shall mean each Shaw Share, until each such Shaw Share (A) has been
effectively registered under the Securities Act and sold in accordance
with the Shelf Registration Statement covering it, (B) is sold pursuant
to Rule 144 or (C) is sold or is available to be sold pursuant to Rule
144(k) (or any similar provisions then in force) under the Securities
Act or (D) is sold pursuant to Rule 904 of Regulation S under the
Securities Act. After the Shelf Registration Statement has become
effective, Shaw will, upon request by a Seller or a Shareholder who is
a holder of any of the Transfer Restricted Securities, promptly reissue
certificates representing such Shaw Shares, without the restrictive
legend referred to in Section 1, but with an appropriate notation that,
until [the date which is one year after the effective date of the Shelf
Registration Statement] the Shaw Share may be sold pursuant to the
Shelf Registration Statement, upon delivery of a current prospectus,
and thereafter may be sold pursuant to Rule 144 under the Securities
Act. The restrictions on transfer of the Transfer Restricted Securities
shall not apply to Sellers' distribution of Transfer Restricted
Securities to their respective
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Shareholders pursuant to the Plans of Liquidation (but shall continue
to apply to such Shareholders). Shaw shall cause its counsel to provide
transfer agents, brokers and market makers promptly with any legal
opinion reasonably requested by them with respect to the availability
of Rule 144 related to a sale of Transfer Restricted Securities.
6. If and whenever Shaw is required by the provisions of this Registration
Agreement to use its best efforts to effect the registration of any of
the Transfer Restricted Securities under the Securities Act, Shaw will:
(a) furnish to each selling Shareholder such number of prospectuses and
preliminary prospectuses in conformity with the requirements of the
Securities Act, and such other documents as such selling Shareholder
may reasonably request in order to facilitate the public sale or other
disposition of the Transfer Restricted Securities owned by such selling
Shareholder;
(b) use commercially reasonable efforts to register or qualify the
Transfer Restricted Securities covered by such registration statement
under such other securities or blue sky laws of such jurisdictions as
each such selling Shareholder shall reasonably request and do any and
all other acts and things which may be necessary or desirable to enable
such selling Shareholder to consummate the public sale or other
disposition in such jurisdiction of the Transfer Restricted Securities
owned by such selling Shareholder; and
(c) use commercially reasonable efforts to list the Shaw Shares with
any securities exchange or market on which the Shaw Shares is then
listed.
7. All expenses incident to Xxxx'x performance of or compliance with this
Registration Agreement will be borne by Shaw. Such expenses shall
include, without limitation, (i) all registration and filing fees
(including those of the Commission and the New York Stock Exchange,
Inc.), (ii) fees and expenses of compliance with all applicable state
securities or "blue sky" laws, (iii) printing and engraving expenses,
(iv) fees and disbursements of counsel and independent accountants for
Shaw, (v) listing fees on any applicable stock exchange or trading
system, and (vi) rating agency fees.
8. In the event of a registration of any of the Transfer Restricted
Securities under the Securities Act, Shaw will hold harmless the
selling Shareholder of such Transfer Restricted Securities, and each
director, officer and partner of such selling Shareholder and each
other person, if any, who controls such selling Shareholder within the
meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such selling
Shareholder or such director or officer or controlling persons may
become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any violation of law by Shaw or its
agents or any untrue statement or alleged untrue statement of any
material fact
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contained in any registration statement under which such Transfer
Restricted Securities were registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and will reimburse such selling Shareholder and each such
director or officer or controlling person for any legal or any other
expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action;
provided, however, that Shaw will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, said
preliminary prospectus or said prospectus or said amendment or
supplement in reliance upon and in conformity with written information
furnished to Shaw through an instrument duly executed by such selling
Shareholder specifically for use in the preparation thereof.
In the event of any registration of any of the Transfer Restricted
Securities under the Securities Act pursuant to this Registration
Agreement, each selling Shareholder of such Transfer Restricted
Securities, severally and not jointly, will indemnify and hold harmless
Shaw and each person, if any, who controls Shaw within the meaning of
Section 15 of the Securities Act, each officer of Shaw who signs the
registration statement and each director of Shaw within the meaning of
Section 15 of the Securities Act, against any and all such losses,
claims, damages or liabilities of the nature referred to in the above
paragraph, if the statement, alleged statement, omission or alleged
omission in respect of which such loss, claim, damage or liability is
asserted was made in reliance upon and in conformity with information
furnished in writing to Shaw by or on behalf of such selling
Shareholder specifically for use in connection with the preparation of
such registration statement, prospectus, preliminary prospectus,
amendment or supplement.
9. Prior to any proposed transfer of any of the Transfer Restricted
Securities (other than (a) pursuant to an effective registration as
provided herein or Rule 144(k), or (b) a transfer by a Seller to a
Shareholder in accordance with the Plans of Liquidation), the selling
Shareholder shall give written notice to Shaw of such selling
Shareholder's intention to effect such transfer. Each such notice shall
describe the manner and circumstances of the proposed transfer in
sufficient detail, and shall be accompanied by a written opinion (in
form and content acceptable to Shaw) of such counsel as shall be
satisfactory to Shaw to the effect that (i) such proposed transfer does
not create a situation which would require the registration of any of
the Transfer Restricted Securities under the Securities Act; and (ii)
the proposed transfer may be effected without registration under the
Securities Act of the Transfer Restricted Securities to be transferred
(as, for example, that such transfer may be made pursuant to and in
compliance with the conditions of Rule 144 or Rule 237 under the
Securities Act (or any other similar
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rule in effect at the time)). Xxxx'x acceptance of such an opinion as
satisfactory shall not be unreasonably withheld. Such proposed transfer
may be effected only if Xxxx shall have received such notice and
opinion of counsel, whereupon the holder of such Transfer Restricted
Securities shall be entitled to transfer such Transfer Restricted
Securities in accordance with the terms of the notice delivered by the
holder to Shaw. The certificate issued upon the transfer of any such
Transfer Restricted Securities as above provided (and the certificate
evidencing any untransferred balance of such Transfer Restricted
Securities) shall bear the restrictive legend set forth in Section 1
above, except that the certificate shall not bear such restrictive
legend and the holder thereof shall be entitled to receive from Shaw,
without expense, a new certificate not bearing such legend, if the
opinion of counsel referred to above is to the further effect that such
legend or legends are not required in order to establish compliance
with any provisions of the Securities Act.
10. The rights of Sellers and Shareholders under this Registration
Agreement may be transferred or assigned only upon the written consent
of Shaw, except that the rights of an individual Shareholder may be
assigned to his or her spouse in the event of a separation of community
property, or to his or her succession representative, heirs and
legatees.
11. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier
or air courier guaranteeing overnight delivery:
If to Sellers:
X. X. Xxxxx, as Sellers' Representative
P. O. Xxx 000000
Xxxxxx, XX 00000
Telephone:
---------------------------------
Facsimile:
---------------------------------
If to the Shareholders, to the respective addresses set forth in
Exhibit A.
If to Shaw:
The Xxxx Group Inc.
0000 Xxxxxx Xxxxx Xxxx.
Xxxxx Xxxxx, XX 00000
Attention: X. X. Xxxxxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Each person entitled to notice may change the address to which such
notice is to be sent by giving notice of such change in accordance with
this Section.
12. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Louisiana, without regard to principles of
conflicts of laws.
13. Price Protection.
(a) Shaw will give prompt notice to Sellers and the Shareholders
of the effective date of the Shelf Registration Statement (the
"Effective Date Notice").
(b) As used in this Section, the following terms have the
following respective meanings:
"Protected Sale" means a sale of Shaw Shares in the public
market by a Seller or Shareholder through a securities broker,
dealer or marketmaker during the Window Period (defined below)
at a gross price per share (without deduction of commissions,
brokerage fees or other expenses of sale) ("Selling Price Per
Share") that is less or more than the closing price of Shaw
common stock on the New York Stock Exchange on March 23, 2001
("Base Price Per Share").
"Window Period" means the 5 consecutive days following the
earlier of (i) the effective date of the Shelf Registration
Statement, or (ii) the date on which Rule 144 or Rule 145
first becomes available for resales of the Shaw Shares by
Sellers and the Shareholders ("Base Window Period"), plus one
additional day for each day during such 5 consecutive days
when the Shelf Registration Statement or Rule 144, as the case
may be, was not available to Sellers and the Shareholders due
to any prohibition of sales by Shaw as permitted in this
Registration Agreement, Xxxx'x failure to file reports
referred to in Rule 144(c) or other fault attributable to Shaw
or its transfer agent.
(c) If a Seller or Shareholder makes one or more Protected Sales,
such person shall, promptly following the end of the Window
Period, notify Shaw thereof and send Shaw copies of sales
confirmation slips or other evidence thereof, showing the
number of Shaw Shares sold and the price of each such
Protected Sale. If the Selling Price Per Share exceeded the
Base Price Per Share, the Seller or Shareholder shall pay to
Shaw an amount equal to the difference between the Selling
Price Per Share and the Base Price Per Share.
(d) Upon receipt of such information, Shaw will instruct the
Escrow Agent (as defined in the Agreement) to deliver to such
Seller or Shareholder such number of the Price Protection
Shares (as defined in the Escrow
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Agreement) held by the Escrow Agent as is equal to the number
obtained by dividing (i) the sum of the differences between
the Selling Price Per Share and the Base Price Per Share for
each of the Shaw Shares sold by such Seller or Shareholder in
a Protected Sale, of which sum Shaw shall notify the Escrow
Agent, by (ii) the closing price per share of Shaw common
stock on the New York Stock Exchange on the business day prior
to the date such delivery is made, which price shall be
ascertained by the Escrow Agent (the "Delivery Price"). Shares
to which any of the Sellers or Shareholders are thus entitled
to delivery are herein called "Additional Shaw Shares".
Notwithstanding the foregoing, if the Selling Price Per Share
is less than $40, Shaw may elect, in lieu of delivering the
Additional Shaw Shares, to pay to the Seller or Selling
Shareholder an amount equal to the difference between the
Selling Price Per Share and the Base Price Per Share.
(e) If, following all required deliveries, Price Protection Shares
remain in escrow, such remaining shares will be delivered to
Shaw by the Escrow Agent for cancellation, and Shaw and
Sellers will take all action necessary to authorize and
promptly approve such delivery.
(f) For all purposes of this Registration Agreement, the
Additional Shaw Shares shall be in all respects considered to
be "Shaw Shares". For example, (but without limitation), the
Additional Shaw Shares shall be among the Shaw Shares that are
registered for resale in the Shelf Registration Statement. If
they are not so registered at the time of delivery in
accordance with this Registration Agreement, then the price
protection provisions of this Section 13 shall apply to such
shares, mutatis mutandis, except that the Base Price Per Share
shall in that event be the Delivery Price and the Base Window
Period shall be the 5 consecutive days following the earlier
of (i) the effective date of the registration statement in
which they are registered for resale by Sellers and the
Shareholders, or (ii) the date on which Rule 144 or Rule 145
first becomes available for such resales.
(g) If there occurs any stock split, stock dividend,
reorganization or similar event involving Shaw common stock at
any relevant time, the shares issuable with respect thereto
shall be considered "Shaw Shares" or "Additional Shaw Shares"
(as the case may be) for purposes of this Registration
Agreement, and the Selling Price Per Share and Base Price Per
Share of any Protected Sales shall be appropriately adjusted
to reflect such event and to make such prices comparable.
(h) Shaw shall indemnify and hold harmless the Sellers and
Shareholders from any Losses (as defined in the Agreement)
suffered by them (including reasonable attorney's fees) as a
result of any breach by Shaw of any of its covenants in this
Registration Agreement. If cash
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indemnification would constitute the receipt of "boot" for tax
purposes, such indemnification shall instead be paid in shares
of Shaw common stock, valued at the time of delivery thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
THE XXXX GROUP INC.
By:
----------------------------------
Name: X. X. Xxxxxxxx, Xx.
Title: Senior Vice President
SELLERS:
XXXXX, XXXXX & XXXXXXXX, INC.
By:
----------------------------------
Name: X. X. Xxxxx
Title:
--------------------------
TECHNICOMP, INC.
By:
----------------------------------
Name: X. X. Xxxxx
Title:
---------------------
, a
----------------------------
Shareholder
Print Name:
----------------
Address:
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