[White & Case Draft of 9/21/07]
EXHIBIT D
[NEW XXXX CORPORATION]
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of _______, 2007 (the
"Agreement") by [New Xxxx Corporation], a ___________ corporation (the
"Company") in favor of each purchaser of 4.0% Series B Convertible Preferred
Stock listed on Schedule A (the "Investors").(1)
R E C I T A L S
WHEREAS, the Investors have agreed to purchase shares of 4.0% Series B
Convertible Preferred Stock, par value $0.01 per share, of the Company (the
"Series B Preferred Stock"); and
WHEREAS, the shares of Series B Preferred Stock are convertible into
shares of common stock, par value $0.01 per share, of the Company (the "Common
Stock"); and
WHEREAS, the Company has agreed, as a condition precedent to the
Investors' obligations under the Subscription Agreement, to grant the Investors
certain registration rights; and
WHEREAS, the Company and the Investors desire to define the
registration rights of the Investor on the terms and subject to the conditions
herein set forth.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms have the respective
meanings set forth below:
Allocation Priority: shall have the meaning set forth in Section
2(b)(ii);
Agreement: shall mean this Agreement among the Investors and the
Company;
Commission: shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act;
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(1) Assuming that the 1145 exemption is available, purchasers of Series B
Preferred in the Rights offering will be able to trade freely unless they are a
deemed "underwriter". Accordingly, this agreement would only be necessary for
persons that are deemed underwriters.
Exchange Act: shall mean the Securities Exchange Act of 1934, as
amended (or any successor act), and the rules and regulations promulgated
thereunder;
Holder: shall mean any holder of Registrable Securities;
Initiating Holder: shall mean any Holder or Holders who in the
aggregate are Holders of more than 50% of the then outstanding Registrable
Securities;
Maximum Number of Shares: shall have the meaning set forth in Section
2(b)(ii);
Person: shall mean an individual, partnership, joint-stock company,
corporation, trust or unincorporated organization, and a government or agency or
political subdivision thereof;
Pro Rata: shall have the meaning set forth in Section 2(b)(ii);
Register, Registered and Registration: shall mean a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act (and any post-effective amendments filed or required to be filed)
and the declaration or ordering of effectiveness of such registration statement;
Registrable Securities: shall mean any (A) Series B Preferred Stock
held by the Investors, (B) shares of Common Stock issuable upon conversion of
the shares of Series B Preferred Stock held by the Investors, (C) other shares
of Common Stock acquired by the Investors after the date hereof unless acquired
in breach of any agreement between the Holder and the Company and (D) additional
securities of the Company issued as a dividend or other distribution with
respect to, or in exchange for or in replacement of any securities of the
Company held by the Investors, including but not limited to, those listed in
clauses (A), (B) and (C);
Registration Expenses: shall mean all reasonable expenses incurred by
the Company in compliance with Section 2(a), (b) and (c) hereof, including,
without limitation, all registration and filing fees, printing expenses, fees
and disbursements of counsel for the Company, reasonable fees and expenses of
one counsel for all the Holders, blue sky fees and expenses and the reasonable
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company, which shall
be paid in any event by the Company);
security, securities: shall have the meaning set forth in Section 2(1)
of the Securities Act;
Securities Act: shall mean the Securities Act of 1933, as amended (or
any successor act), and the rules and regulations promulgated thereunder; and
Selling Expenses: shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for each of the Holders other than reasonable fees and
expenses of one counsel for all the Holders.
SECTION 2. REGISTRATION RIGHTS
(a) Demand Registration.
(i) Request for Registration. If the Company shall receive from an
Initiating Holder, at any time, a written request that the Company effect
any registration with respect to all or a part of the Registrable
Securities, the Company will:
(1) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(2) as soon as practicable, use its reasonable best efforts to effect
such registration (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualification
under applicable blue sky or other state securities laws and appropriate
compliance with applicable regulations issued under the Securities Act) as
may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the
Registrable Securities of any Holder or Holders joining in such request as
are specified in a written request received by the Company within ten (10)
business days after written notice from the Company is given under Section
2(a)(i)(1) above; provided, that the Company shall not be obligated to
effect, or take any action to effect, any such registration pursuant to
this Section 2(a):
(A) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in
effecting such registration, qualification or compliance, unless
the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act or applicable
rules or regulations thereunder;
(B) After the Company has effected one (1) such registration
pursuant to this Section 2(a) and such registration has been
declared or ordered effective and the sales of such Registrable
Securities shall have closed; provided, however, that a
registration shall not be deemed to constitute a registration
pursuant to this Section 2(a) in the event that less than ninety
percent (90%) of the Registrable Securities held by Holders
participating in the registration are permitted to participate in
such registration;
(C) If the Registrable Securities requested by all Holders to be
registered pursuant to such request do not have an anticipated
aggregate public offering price (before any underwriting
discounts and commissions) of not less than $[insert dollar
amount equal to 10% of the total aggregate Series B Purchase
Price (as defined in the Investment
Agreement) that is paid by all of the Investors under the
Investment Agreement for shares of Series B Preferred (as defined
in the Investment Agreement)];
(D) During the period starting with the date thirty (30) days
prior to the Company's good faith estimate of the date of filing
of, and ending on the date three (3) months immediately following
the effective date of, any registration statement pertaining to
securities of the Company (other than a registration of
securities in a Rule 145 transaction under the Securities Act,
with respect to an employee benefit plan or with respect to the
Company's first registered public offering of its stock);
provided, that the Company is actively employing in good faith
all reasonable efforts to cause such registration statement to
become effective; provided, however, that the Company may only
delay an offering pursuant to this Section 2(a)(i)(2)(D) for a
period of not more than thirty (30) days, if a filing of any
other registration statement is not made within that period and
the Company may only exercise this right once in any twelve
(12)-month period; or
(E) If the Company shall furnish to the Initiating Holders a
certificate signed by the President of the Company stating that
in the good faith judgment of the Board of Directors of the
Company it would be seriously detrimental to the Company or its
stockholders for a registration statement to be filed in the near
future, in which case the Company's obligation to use its best
efforts to comply with this Section 2(a) shall be deferred for a
period not to exceed ninety (90) days from the date of receipt of
written request from the Initiating Holders; provided, however,
that the Company shall not exercise such right more than once in
any twelve (12)-month period.
The registration statement filed pursuant to the request of the Initiating
Holders may, subject to the provisions of Section 2(a)(ii) below, include other
securities of the Company that are held by Persons who, by virtue of agreements
with the Company, are entitled to include their securities in any such
registration ("Other Stockholders"). In the event any Holder requests a
registration pursuant to this Section 2(a) in connection with a distribution of
Registrable Securities to its partners or members, the registration shall
provide for the resale by such partners or members, if requested by such Holder.
(ii) Underwriting. If the Initiating Holders intend to distribute the
Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as a part of their request
made pursuant to Section 2(a)(i).
If Other Stockholders request inclusion of their securities in the underwriting,
the Holders shall offer to include the securities of such Other Stockholders in
the underwriting and may condition such offer on their acceptance of the further
applicable provisions of this Section 2. The Holders whose shares are to be
included in such registration and the Company shall (together with all
Other Stockholders proposing to distribute their securities through such
underwriting) enter into an underwriting agreement in customary form with the
representative of the underwriter or underwriters selected for such underwriting
by the Initiating Holders and reasonably acceptable to the Company.
Notwithstanding any other provision of this Section 2(a), if the representative
advises the Holders in writing that marketing factors require a limitation on
the number of shares to be underwritten, the representative may limit the number
of Registrable Securities to be included in the registration and underwriting in
accordance with the Allocation Priority set forth in Section 2(b)(ii); provided
that such allocation shall be made in the following manner: (i) first, Pro Rata
(as defined below) to Registrable Securities and securities entitled to
registration under the Series A Registration Rights Agreement (as defined
below), regardless of the number of shares that can be sold without exceeding
the Maximum Number of Shares; (ii) second, to securities that the Company
desires to sell, and (iii) third, securities for the account of Other
Stockholders that the Company is obligated to register pursuant to written
contractual arrangements with such persons that can be sold, Pro Rata, in the
case of (ii) and (iii) without exceeding the Maximum Number of Shares. If any
Holder or Other Stockholder who has requested inclusion in such registration as
provided herein disapproves of the terms of the underwriting, such Person may
elect to withdraw therefrom by providing written notice to the Company, the
underwriter and the Initiating Holders. The securities so withdrawn shall also
be withdrawn from registration.
(b) Company Registration.
(i) If the Company shall determine to register any of its equity
securities either for its own account or for the account of Other
Stockholders, other than a registration relating solely to employee benefit
plans, or a registration relating solely to a Rule 145 transaction under
the Securities Act, or a registration on any registration form which does
not permit secondary sales or does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of Registrable Securities, the Company will:
(1) promptly give to each of the Holders a written notice thereof
(which shall include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under the applicable blue sky
or other state securities laws); and
(2) include in such registration (and any related qualification under
blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made by the Holders within ten (10) days after receipt of the
written notice from the Company described in clause (1) above, except to
the extent limited as set forth in Section 2(b)(ii) below. Such written
request may specify all or a part of the Holders' Registrable Securities.
In the event any Holder requests inclusion in a registration pursuant to
this Section 2(b) in connection with a distribution of Registrable
Securities to its partners or members, the registration shall provide for
the resale by such partners or members, if requested by such Holder.
(ii) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise each
of the Holders as a part of the written notice given pursuant to Section
2(b)(i)(1) above. In such event, the right of each of the Holders to
registration pursuant to this Section 2(b) shall be conditioned upon such
Holders' participation in such underwriting and the inclusion of such
Holders' Registrable Securities in the underwriting to the extent provided
herein. The Holders whose shares are to be included in such registration
shall (together with the Company and the Other Stockholders distributing
their securities through such underwriting) enter into an underwriting
agreement in customary form with the representative of the underwriter or
underwriters selected for underwriting by the Company. Notwithstanding any
other provision of this Section 2(b), if the representative determines that
marketing factors require a limitation on the number of shares to be
underwritten, the representative may limit the number of Registrable
Securities to be included in the registration and underwriting in
accordance with the allocation priority set forth below. The Company shall
promptly advise all holders of securities requesting registration of such
limitation, and the number of shares of securities that are entitled to be
included in the registration and underwriting (the "Maximum Number of
Shares") shall be allocated in the following manner: (i) first, the
securities that the Company desires to sell, regardless of the number of
shares that can be sold without exceeding the Maximum Number of Shares;
(ii) second, both (A) the securities entitled to registration under the
Registration Rights Agreement, dated _______, 200_, between Appaloosa,
[Purchaser] and the Company (the "Series A Registration Rights Agreement")
and (B) the Registrable Securities that can be sold, all pro rata in
accordance with the number of securities entitled to registration under the
Series A Registration Rights Agreement and Registrable Securities,
respectively, that each such holder of securities entitled to registration
under the Series A Registration Rights Agreement or Holder has requested be
included in such registration (such proportion is referred to herein as
"Pro Rata"), without exceeding the Maximum Number of Shares; (iii) third,
the Registrable Securities that can be sold, Pro Rata, without exceeding
the Maximum Number of Shares; and (iv) fourth, to the extent that the
Maximum Number of Shares has not been reached under the foregoing clauses,
the securities for the account of Other Stockholders that the Company is
obligated to register pursuant to written contractual arrangements with
such persons that can be sold, Pro Rata, without exceeding the Maximum
Number of Shares (the foregoing allocation is referred to herein as the
"Allocation Priority"). If any of the Holders or any officer, director or
Other Stockholder disapproves of the terms of any such underwriting, he she
or it may elect to withdraw therefrom by providing written notice to the
Company and the underwriter. Any Registrable Securities or other securities
excluded or withdrawn from such underwriting shall be withdrawn from such
registration.
(c) Form S-3. The Company shall use its reasonable best efforts to
qualify for registration on Form S-3 for secondary sales. After the Company has
qualified for the use of Form S-3, the Holders shall have the right to request
up to four (4) registrations on Form S-3 (such requests shall be in writing and
shall state the number of shares of Registrable Securities to be disposed of and
the intended method of disposition of shares by such holders), provided, that
the Company shall not be obligated to effect, or take any action to effect, any
such registration pursuant to this Section 2(c):
(i) Unless the Holder or Holders requesting registration propose to
dispose of shares of Registrable Securities having an aggregate price to
the public (before deduction
of Selling Expenses) of more than $[insert dollar amount equal to 5% of the
the total aggregate Series B Purchase Price (as defined in the Investment
Agreement) that is paid by all of the Investors under the Investment
Agreement for shares of Series B Preferred (as defined in the Investment
Agreement)];
(ii) Within one hundred eighty (180) days of the effective date of the
most recent registration pursuant to this Section 2(c) in which securities
held by the requesting Holder could have been included for sale or
distribution;
(iii) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting
such registration, qualification or compliance, unless the Company is
already subject to service in such jurisdiction and except as may be
required by the Securities Act or applicable rules or regulations
thereunder;
(iv) During the period starting with the date thirty (30) days prior
to the Company's good faith estimate of the date of filing of, and ending
on the date three(3) months immediately following the effective date of,
any registration statement pertaining to securities of the Company (other
than a registration of securities in a Rule 145 transaction under the
Securities Act or with respect to an employee benefit plan); provided, that
the Company is actively employing in good faith all reasonable efforts to
cause such registration statement to become effective; provided, however,
that the Company may only delay an offering pursuant to this Section
2(c)(iv) for a period of not more than thirty (30) days, if a filing of any
other registration statement is not made within that period and the Company
may only exercise this right once in any twelve (12)-month period; or
(v) If the Company shall furnish to the Holders a certificate signed
by the President of the Company stating that in the good faith judgment of
the Board of Directors of the Company it would be seriously detrimental to
the Company or its stockholders for a registration statement to be filed in
the near future, in which case the Company's obligation to use its best
efforts to comply with this Section 2(c) shall be deferred for a period not
to exceed ninety (90) days from the date of receipt of written request from
the Holders; provided, however, that the Company shall not exercise such
right more than once in any twelve (12)-month period.
The Company shall give written notice to all Holders of the receipt of a request
for registration pursuant to this Section 2(c)and shall provide a reasonable
opportunity for other Holders to participate in the registration; provided, that
if the registration is for an underwritten offering, the terms of Section
2(a)(ii) above shall apply to all participants in such offering. Subject to the
foregoing, the Company will use its reasonable best efforts to effect promptly
the registration of all shares of Registrable Securities on Form S-3 to the
extent requested by the Holder or Holders thereof for purposes of disposition.
In the event any Holder requests a registration pursuant to this Section 2(c) in
connection with a distribution of Registrable Securities to its partners or
members, the registration shall provide for the resale by such partners or
members, if requested by such Holder.
(d) Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Section 2 shall be borne by the Company, and all Selling Expenses shall be borne
by the Holders of the securities so registered pro rata on the basis of the
number of their shares so registered.
(e) Registration Procedures. In the case of each registration
effected by the Company pursuant to this Section 2, the Company will keep the
Holders, as applicable, advised in writing as to the initiation of each
registration and as to the completion thereof. At its reasonable expense, the
Company will:
(i) keep such registration effective for a period of ninety (90)
days;
(ii) furnish such number of prospectuses and other documents incident
thereto as each of the Holders, as applicable, from time to time may
reasonably request;
(iii) notify each Holder of Registrable Securities covered by such
registration at any time when a prospectus relating thereto is required to
be delivered under the Securities Act of the happening of any event 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 a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and
(iv) furnish, on the date that such Registrable Securities are
delivered to the underwriters for sale, if such securities are being sold
through underwriters or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to
such securities becomes effective, (1) an opinion, dated as of such date,
of the counsel representing the Company for the purposes of such
registration, in form and substance as is reasonably and customarily given
to underwriters in an underwritten public offering, addressed to the
underwriters, if any, and to the Holders participating in such registration
and (2) a letter, dated as of such date, from the independent certified
public accountants of the Company, in form and substance as is reasonably
and customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the
underwriters, if any, and if permitted by applicable accounting standards,
to the Holders participating in such registration.
(f) Indemnification.
(i) The Company will indemnify each of the Holders, as applicable,
each of its officers, directors and partners and members, and each Person
controlling each of the Holders, with respect to each registration which
has been effected pursuant to this Section 2, and each underwriter, if any,
and each person who controls any underwriter, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or
based on any untrue statement (or alleged untrue statement) of a material
fact contained
in any such registration statement, prospectus, issuer free-writing
prospectus, offering circular or other document, or based on any omission
(or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and will reimburse each of such Holders, each of its officers, directors
and partners and members, and each Person controlling each of such Holders,
each such underwriter and each Person who controls any such underwriter,
for any legal and any other expenses reasonably incurred in connection with
investigating and defending any such claim, loss, damage, liability or
action; provided, that the Company will not be liable in any such case to
the extent that any such claim, loss, damage, liability or expense arises
out of or is based on any untrue statement or omission based upon written
information furnished to the Company by the Holders or underwriter and
stated to be specifically for use therein; provided, however, that the
obligations of the Company to each ofthe Holders hereunder shall be limited
to an amount equal to the net proceeds to such Holder of securities sold in
such registration as contemplated herein.
(ii) Each of the Holders will, if Registrable Securities held by it
are included in the securities as to which such registration, qualification
or compliance is being effected, severally and not jointly, indemnify the
Company, each of its directors and officers and each underwriter, if any,
of the Company's securities covered by such a registration statement, each
Person who controls the Company or such underwriter, each Other Stockholder
and each of their respective officers, directors, partners and members, and
each Person controlling such Other Stockholder against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or
based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, issuer
free-writing prospectus, offering circular or other document made by such
Holder in writing, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the
statements by such Holder therein not misleading, and will reimburse the
Company, the underwriters, and such Other Stockholders, and their
respective directors, officers, partners, members, Persons or control
persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement, prospectus,
offering circular or other document in reliance upon and in conformity with
written information furnished to the Company by such Holder and stated to
be specifically for use therein; provided, however, that the obligations of
each of the Holders hereunder shall be limited to an amount equal to the
net proceeds to such Holder of securities sold in such registration as
contemplated herein.
(iii) Each party entitled to indemnification under this Section 2(f)
(the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, and shall permit the Indemnifying Party to assume the
defense of any such claim or any litigation resulting therefrom; provided,
that counsel for the Indemnifying Party, who shall conduct the defense of
such claim or any litigation resulting therefrom, shall be approved by the
Indemnified Party
(whose approval shall not unreasonably be withheld) and the Indemnified
Party may participate in such defense at such party's expense (unless the
Indemnified Party shall have reasonably concluded that there may be a
conflict of interest between the Indemnifying Party and the Indemnified
Party in such action, in which case the fees and expenses of counsel shall
be at the expense of the Indemnifying Party), and provided further, that
the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this
Section 2(f) unless the Indemnifying Party is materially prejudiced
thereby. No Indemnifying Party, in the defense of any such claim or
litigation shall, except with the prior written consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which
does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. Each Indemnified Party
shall furnish such information regarding itself or the claim in question as
an Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with the defense of such claim and
litigation resulting therefrom.
(iv) If the indemnification provided for in this Section 2(f) is held
by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage or expense
referred to herein, then the Indemnifying Party, in lieu of indemnifying
such Indemnified Party hereunder, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such loss, liability,
claim, damage or expense in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Party on the one hand and of the
Indemnified Party on the other in connection with the statements or
omissions (or alleged statements or omissions) which resulted in such loss,
liability, claim, damage 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 (or alleged untrue) statement of a material fact
or the omission (or alleged 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 statement or omission.
(v) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with any underwritten public offering
contemplated by this Agreement are in conflict with the foregoing
provisions, the provisions in such underwriting agreement shall be
controlling.
(g) Information by the Holders.
(i) Each of the Holders including securities in any registration
shall furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder as the Company may reasonably request
in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Section 2.
(ii) In the event that, either immediately prior to or subsequent to
the effectiveness of any registration statement, any Holder shall
distribute Registrable Securities to its partners or members, such Holder
shall so advise the Company and provide such information as shall be
necessary to permit an amendment to such registration statement to provide
information with respect to such partners or members, as selling security
holders. Promptly following receipt of such information, the Company shall
file an appropriate amendment to such registration statement reflecting the
information so provided. Any incremental expense to the Company resulting
from such amendment shall be borne by such Holder.
(h) Rule 144 Reporting.
With a view to making available the benefits of certain rules and
regulations of the Commission which may permit the sale of restricted securities
to the public without registration, the Company agrees to:
(i) at all times make and keep public information available as those
terms are understood and defined in Rule 144 under the Securities Act
("Rule 144");
(ii) use its reasonable best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act at any time after it has become
subject to such reporting requirements; and
(iii) so long as a Holder owns any Registrable Securities, furnish to
such Holder, upon request, a written statement by the Company as to its
compliance with the reporting requirements of Rule 144, and of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so
filed as such Holder may reasonably request in availing itself of any rule
or regulation of the Commission allowing the Holder to sell any such
securities without registration.
(i) Termination. The registration rights set forth in this Section 2
shall not be available to any Holder if, (i) in the written opinion of counsel
to the Company, all of the Registrable Securities then owned by such Holder
could be sold in any ninety (90)-day period pursuant to Rule 144(k) or are
otherwise freely saleable or (ii) all of the Registrable Securities held by such
Holder have been sold in a registration pursuant to the Securities Act or
pursuant to Rule 144.
(j) The registration rights set forth in this Section 2 may be
assigned, in whole or in part, to any transferee of Registrable Securities (who
shall be bound by all obligations of this Agreement).
SECTION 3. INTERPRETATION OF THIS AGREEMENT
(a) Directly or Indirectly. Where any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
SECTION 4. MISCELLANEOUS
(a) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such State without regard to conflicts
of law principles.
(b) Section Headings. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
(c) Notices.
(i) All communications under this Agreement shall be in writing and
shall be delivered by hand or facsimile or mailed by overnight courier or
by registered or certified mail, postage prepaid:
(1) if to the Company, to Xxxx Corporation (or the name of the
Company), 0000 Xxxx Xxxxxx, Xxxxxx, XX 00000, Attention: General Counsel
and Secretary (facsimile: (000) 000-0000), or at such other address or
facsimile numbers as it may have furnished in writing to the Holders, with
a copy to Xxxxx Day, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(facsimile: (000) 000-0000), Attention: Xxxxxxx X. Xxxxxx, Esq.
(2) if to the Holders, to the address or facsimile provided on
Schedule A, or at such other address or facsimile number as may have been
furnished the Company in writing, with a copy to: Appaloosa Management
L.P., 00 Xxxx Xxxxxx, Xxxxxxx, XX 00000, Attention: Xxxxx Xxxxx
(x.xxxxx@xxxx.xxx), Fax: (000) 000-0000, and with a copy to White & Case
LLP, Wachovia Financial Center, 000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000,
Xxxxx, Xxxxxxx 00000-0000, Attention: Xxxxxx X. Xxxxxx
(xxxxxxx@xxxxxxxxx.xxx) and Xxxxxx Xxxx (xxxxx@xxxxxxxxx.xxx), Fax: (305)
000-0000/5766, and to White & Case LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxx (xxxxxx@xxxxxxxxx.xxx) and
Xxxxxx Xxxxxxxx (xxxxxxxxx@xxxxxxxxx.xxx), Fax: 000-000-0000.
(ii) Any notice so addressed shall be deemed to be given: if delivered
by hand or facsimile, on the date of such delivery; if mailed by overnight
courier, on the first business day following the date of such mailing; and
if mailed by registered or certified mail, on the third business day after
the date of such mailing.
(d) Reproduction of Documents. This Agreement and all documents
relating thereto, including, without limitation, any consents, waivers and
modifications which may hereafter be executed may be reproduced by the Holders
by any photographic, photostatic, microfilm, microcard, miniature photographic
or other similar process and the Holders may
destroy any original document so reproduced. The parties hereto agree and
stipulate that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made by the
Holders in the regular course of business) and that any enlargement, facsimile
or further reproduction of such reproduction shall likewise be admissible in
evidence.
(e) Successors and Assigns; Third Party Beneficiaries. This Agreement
shall inure to the benefit of and be binding upon and be enforceable by the
successors and assigns of each of the parties. Each Holder is an express third
party beneficiary of this Agreement, shall be deemed a party hereto for all
purposes hereof, and shall be entitled to enforce the provisions of this
Agreement as if a signatory hereto.
(f) Entire Agreement; Amendment and Waiver. This Agreement
constitutes the entire understanding of the parties hereto relating to the
subject matter hereof and supersedes all prior understandings among such
parties. This Agreement may be amended, and the observance of any term of this
Agreement may be waived, with (and only with) the written consent of the Company
and the Holders holding a majority of the then outstanding Registrable
Securities. Any amendment or waiver effected in accordance with this Section
4(f) shall be binding upon each Holder of Registrable Securities then
outstanding (whether or not such Holder consented to any such amendment or
waiver).
(g) Severability. In the event that any part or parts of this
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not affect the
remaining provisions of this Agreement which shall remain in full force and
effect.
(h) Counterparts. This Agreement may be executed in two or more
counterparts (including by facsimile), each of which shall be deemed an original
and all of which together shall be considered one and the same agreement.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the date first set forth above.
[NEW XXXX CORPORATION]
By:
--------------------------
Name:
Title:
SCHEDULE A
INVESTORS
