27191.4
Exhibit 4(g)
COMMON STOCK REGISTRATION RIGHTS AGREEMENT
Dated as of August 30, 1996
by and among
XXXXX CORNING,
JANNOCK LIMITED
and
CELFORT CONSTRUCTION MATERIALS INC.
COMMON STOCK REGISTRATION RIGHTS AGREEMENT
THIS COMMON STOCK REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is made and entered into as of August 30, 1996 among
Xxxxx Corning, a Delaware corporation (the "Company"), Jannock
Limited, an Ontario corporation ("Jannock"), and Celfort
Construction Materials Inc., a Canada corporation and an indirect
subsidiary of Jannock (the "Purchaser").
This Agreement is made pursuant to the Asset Purchase
Agreement, dated as of August 30, 1996 (the "Purchase
Agreement"), between the Purchaser, Jannock, the Company and OC
Celfortec Inc., a Canada corporation and an indirect wholly owned
subsidiary of the Company ("OC Sub"), relating to the acquisition
by OC Sub of substantially all the assets of the Purchaser's
extruded polystyrene insulation products business in
consideration of (among other things) the delivery by OC Sub to
the Purchaser of OC Sub's promissory note in the form set forth
in the Purchase Agreement, which the parties contemplate will be
exchanged for an aggregate of 472,250 shares of Common Stock, par
value $.10 per share, of the Company.
In order to induce the Purchaser to enter into the
Purchase Agreement and to accept such consideration, the Company
agrees with Jannock and the Purchaser as follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Broker" shall mean the New York city office of
Xxxxxxx, Xxxxx & Co.
"Business Day" shall mean a day that is not a
Legal Holiday.
"Closing Date" shall mean the Date of Closing as
defined in the Purchase Agreement.
"Common Stock" shall mean the common stock, par
value $.10 per share, of the Company.
"Company" shall have the meaning set forth in the
preamble and shall also include the Company's
successors.
"Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended from time to time.
"Holder" shall mean the Purchaser, for so long as
it owns any Registrable Securities, and each of its
successors, assigns and direct and indirect transferees
who become registered owners of Registrable Securities.
"Legal Holiday" shall mean a Saturday, a Sunday or
a day on which banking institutions in New York, New
York are required by law, regulation or executive order
to remain closed.
"Majority of the Registrable Securities" shall
mean holders of a majority of the Shares.
"Person" shall mean an individual, partnership,
corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in
any Registration Statement (including, without
limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of
an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any
portion of the Registrable Securities covered by such
Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such
Prospectus.
"Purchase Agreement" shall have the meaning set
forth in the preamble.
"Purchaser" shall have the meaning set forth in
the preamble.
"Registrable Securities" shall mean any of (i) the
Shares and (ii) Common Stock or other securities issued
or issuable with respect to any Registrable Securities
by way of stock dividend or stock split or in
connection with a combination of shares,
recapitalization, merger, consolidation or other
reorganization or otherwise. As to any particular
Registrable Securities, such securities shall cease to
be Registrable Securities when (i) a Registration
Statement with respect to such securities shall have
been declared effective under the Securities Act and
such securities shall have been disposed of pursuant to
such Registration Statement, (ii) such securities have
been sold to the public pursuant to Rule 144(k) (or any
similar provision then in force, but not Rule 144A)
under the Securities Act, (iii) such securities shall
have been otherwise transferred by such Holder and new
certificates for such securities not bearing a legend
restricting further transfer shall have been delivered
by the Company or its transfer agent and subsequent
disposition of such securities shall not require
registration or qualification under the Securities Act
or any similar state law then in force or (iv) such
securities shall have ceased to be outstanding.
"Registration Statement" shall mean any
registration statement of the Company, that covers any
of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration
statement, including post-effective amendments, all
exhibits and all material incorporated by reference in
such registration statement.
"Restricted Security" shall have the meaning set
forth in Rule 144(a)(3) under the Securities Act as
modified by applicable SEC interpretations.
"Rule 144" shall mean Rule 144 under the
Securities Act, or any similar rule (other than
Rule 144A) or regulation hereafter adopted by the SEC
providing for offers and sales of securities made in
compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer
of such securities being free of the registration and
prospectus delivery requirements of the Securities Act.
"Rule 144A" shall mean Rule 144A under the
Securities Act, as such Rule may be amended from time
to time, or any successor thereto.
"SEC" shall mean the Securities and Exchange
Commission.
"Securities Act" shall mean the Securities Act of
1933, as amended from time to time.
"Shares" shall mean the shares of Common Stock
delivered to the Purchaser pursuant to the Share
Subscription Agreement of even date herewith between
the Purchaser and the Company.
"Transfer Agent" shall mean Chemical Bank and any
successor transfer agent or registrar for the Common
Stock.
2. Registration and Manner of Sale. (a) No later than
sixty (60) days after the Closing Date, the Company shall prepare
and file with the SEC a registration statement with respect to
all of the Registrable Securities. The Company thereafter shall
use reasonable efforts to have such registration statement
declared effective by the SEC: (i) two Business Days following
the first date on which the closing price of the Registrable
Securities equals or exceeds $45.00 per share, but in any event
(ii) no later than seventy-five (75) days after the Closing Date
(the "Effectiveness Date"), and in either case shall use
reasonable best efforts to take all other actions reasonably
necessary to permit public resale of the Registrable Securities
in accordance with the order referred to in Section 2(b) until
all Registrable Securities are sold.
(2) Promptly following the Closing Date, the Purchaser
shall arrange to have an order placed with the Broker, which
order shall authorize and direct the Broker to sell the
Registrable Securities (conditioned upon a registration statement
covering the Registrable Securities being effective at the time
of sale): (i) at any time, if the sale can be effected at or
above a price of $45.00 per share, and (ii) to the extent not
sold prior to the Effectiveness Date, as promptly as practicable,
but in any event within fifteen (15) Business Days after the
Effectiveness Date, at the then prevailing market price, in the
case of clause (i) or (ii) without materially affecting the
market price.
(3) In the event that on the date (the "Sale
Termination Date") that is fifteen (15) Business Days after the
Effectiveness Date any of the Registrable Securities have not
been sold in accordance with Section 2(b) (other than as a result
of a breach by the Holder(s)), within five Business Days after
the Sale Termination Date, but in no event later than December
15, 1996, (i) the Company shall cause a Person which is not an
Affiliate of the Company (an "Unaffiliated Purchaser") to
purchase for its own account, in cash in immediately available
funds, any and all of the Registrable Securities then remaining
unsold, and (ii) to the extent that the aggregate net proceeds
received by the Holder(s) from the Unaffiliated Purchaser and
from any sales of Registrable Securities theretofore sold by the
Holder(s) pursuant to Section 2(b) (net of all brokerage
commissions) is less than Cdn. $29,000,000, the Company shall
cause OC Sub to pay to the Holder(s) the applicable Share
Proceeds Adjustment Amount in accordance with Section 4.4 of the
Purchase Agreement.
(4) Notwithstanding anything in this Section 2 or
Section 3, no Holder shall, for a period of 12 months after the
Closing Date, sell any Shares or Registrable Securities to or for
the benefit of any resident of Canada or through the facilities
of The Toronto Stock Exchange and any Holder shall instruct the
Broker (or any other broker or dealer acting as its agent in
respect of any such sale during such 12 month period) not to sell
any Shares or Registrable Securities to or for the benefit of any
resident of Canada or through the facilities of The Toronto Stock
Exchange.
3. Compliance with the Securities Act.
3.1 Sales and Transfers of Registrable Securities.
(a) None of the Registrable Securities may be sold, transferred
or otherwise disposed of (any such sale, transfer or other
disposition, a "sale"), except (x) in a registration effected
pursuant to Section 2 or (y) in compliance with this Section 3.
(2) The Purchaser may sell its Registrable Securities
only pursuant to Section 2 hereof or if:
(1) such sale is made in reliance on an exemption from
the registration requirements of the Securities Act and
the Purchaser delivers to the Company an Opinion of
Counsel reasonably acceptable to the Company to the
effect that such transfer is in compliance with the
Securities Act; and
(2) the transferee of such Registrable Securities
agrees to be bound by the provisions of this Section 3
with respect to any sale of any of such Registrable
Securities.
3.2 Certificates Evidencing the Registrable
Securities. (a) Upon original issuance thereof, and until such
time as the same is no longer a Restricted Security, the
Registrable Securities shall bear the following legend:
THE SHARES OF COMMON STOCK REPRESENTED HEREBY WERE
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND THE COMMON STOCK
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THE
COMMON STOCK REPRESENTED HEREBY AGREES FOR THE BENEFIT
OF THE ISSUER THAT (A) SUCH COMMON STOCK MAY BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(a) PURSUANT
TO EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
ACT (AND, UPON AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE COMPANY), (b) TO THE
COMPANY OR ANY OF ITS SUBSIDIARIES, (c) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND
(2) IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER OF THE COMMON STOCK REPRESENTED HEREBY OF
THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
(2) The certificates representing such Securities and
each certificate issued in transfer thereof, shall also bear any
legend required under any applicable state securities or "blue
sky" laws.
4. Registration Procedures. In connection with the
obligations of the Company with respect to any Registration
Statement pursuant to Section 2 hereof, the Company shall:
(1) prepare and file with the SEC a Registration
Statement on the appropriate form under the Securities Act, which
form (i) shall be selected by the Company and (ii) shall comply
as to form in all material respects with the requirements of the
applicable form and include all financial statements required by
the SEC to be filed therewith, and the Company shall use all
reasonable efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2
hereof.
(2) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement effective as
provided in Section 2, cause each related Prospectus to be
supplemented by any required prospectus supplement and, as so
supplemented, to be filed pursuant to Rule 424 under the
Securities Act;
(3) furnish to each Holder of Registrable Securities,
without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto
and such other documents as such Holder may reasonably request,
in order to facilitate the public sale or other disposition of
the Registrable Securities;
(4) use all reasonable efforts to register or qualify
the Registrable Securities under all applicable state securities
or Blue Sky laws of such jurisdictions as any Holder thereof
covered by a Registration Statement shall reasonably request in
writing by the time the applicable Registration Statement is
declared effective by the SEC, and do any and all other acts and
things which may be reasonably necessary or advisable to enable
such Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that the Company shall not be required to
(i) qualify as a foreign corporation or as a dealer in securities
in any jurisdiction where it would not otherwise be required to
qualify but for this Section 4(d), (ii) file any general consent
to service of process or (iii) subject itself to taxation in any
such jurisdiction if it is not so subject;
(5) advise each Holder of Registrable Securities (and
the Broker) promptly (and, if required by such Holder, confirm
such advice in writing):
(1) when a Registration Statement has become effective
and when any post-effective amendments and supplements
thereto become effective, (ii) of any request by the
SEC or any state securities authority for amendments
and supplements to a Registration Statement and
Prospectus or for additional information after the
Registration Statement has become effective, (iii) of
the issuance by the SEC or any state securities
authority of any stop order suspending the
effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose,
(iv) if, between the effective date of a Registration
Statement and the closing of any sale of Registrable
Securities covered thereby, the Company receives any
notification with respect to the suspension of the
qualification of the Registrable Securities for sale in
any jurisdiction or the initiation of any proceeding
for such purpose and (v) of the happening of any event
during the period a Registration Statement is effective
which makes any statement made in such Registration
Statement or the related Prospectus untrue in any
material respect or which requires the making of any
changes in such Registration Statement or Prospectus in
order to make the statements therein not misleading;
(6) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a
Registration Statement at the earliest possible moment;
(7) furnish to each Holder of Registrable Securities
and to the Purchaser, without charge, at least one conformed copy
of each Registration Statement and any post-effective amendment
thereto (with documents incorporated therein by reference or
exhibits thereto);
(8) cooperate with the selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold
pursuant to such Registration Statement and not bearing any
restrictive legends and registered in such names as the selling
Holders may reasonably request at least two Business Days prior
to the closing of any sale of Registrable Securities;
(9) upon the occurrence of any event contemplated by
Section 4(e)(v) hereof, use reasonable efforts to prepare a
supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that,
as thereafter delivered to the Purchaser of the Registrable
Securities, such Prospectus will not contain any untrue statement
of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading. The Company agrees to
notify each Holder to suspend use of the Prospectus as soon as
reasonably practicable and each Holder hereby agrees to suspend
use of the Prospectus until the Company has amended or
supplemented the Prospectus to correct such misstatement or
omission. At such time as such public disclosure is otherwise
made or the Company determines in good faith that such disclosure
is not necessary, the Company agrees promptly to notify each
Holder of such determination, to amend or supplement the
Prospectus if necessary to correct any untrue statement or
omission therein and to furnish each Holder such numbers of
copies of the Prospectus as so amended or supplemented as each
Holder may reasonably request;
(10) a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a Prospectus
or any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after initial filing of a
Registration Statement, provide copies of such documents to the
Holders and make available for discussion of such document the
representatives of the Company as shall be reasonably requested
by the Holders of Registrable Securities;
(11) obtain a CUSIP number for the Common Stock; and
(12) shall use its best efforts to cause the
Registrable Securities to be listed on the New York Stock
Exchange and the Toronto Stock Exchange.
The Company may, as a condition to such Holder's
participation in any Registration Statement, require each Holder
of Registrable Securities to (i) furnish to the Company such
information regarding the Holder and the proposed distribution by
such Holder of such Registrable Securities as the Company may
from time to time reasonably request in writing and (ii) agree in
writing to be bound by this Agreement.
5. Registration Expenses. (a) All fees and expenses
incident to the performance of or compliance with this Agreement
by the Company shall be borne by the Company, whether or not the
Registration Statement is filed or becomes effective, including,
without limitation, (i) all registration and filing fees
(including, without limitation, (A) fees with respect to filings
required to be made with the National Association of Securities
Dealers, Inc. in connection with an underwritten offering and
(B) fees and expenses of compliance with state securities or Blue
Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky
qualifications of the Registrable Securities and determination of
the eligibility of the Registrable Securities for investment
under the laws of such jurisdictions), (ii) printing expenses
(including, without limitation, expenses of printing certificates
for Registrable Securities in a form eligible for deposit with
The Depository Trust Company and of printing prospectuses if the
printing of prospectuses is required by the managing
underwriters, if any,) (iii) messenger, telephone and delivery
expenses, (iv) fees and disbursements of counsel for the Company,
(v) fees and disbursements of all independent certified public
accountants for the Company, (vi) Securities Act liability
insurance, if the Company desires such insurance, (vii) fees and
expenses of all other Persons retained by the Company,
(viii) internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees
of the Company performing legal or accounting duties), (ix) the
expense of any annual audit, (x) the fees and expenses incurred
in connection with the listing of the securities to be registered
on any securities exchange and (xi) the expenses relating to
printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements,
indentures and any other documents necessary in order to comply
with this Agreement.
(2) Notwithstanding the terms of Section 5(a), the
Company shall not pay for the fees and disbursements of counsel
or other advisors retained by the Holders of Registrable
Securities in connection with the registration of the Registrable
Securities.
6. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Holder and each
person, if any, who controls such Holder within the meaning of
either Section 15 of the Securities Act or Section 20 of the
Exchange Act, or is under common control with, or is controlled
by, such Holder, including without limitation Jannock, and each
of their respective directors, officers, partners, agents and
employees from and against all losses, claims, damages and
liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Holder or any such
controlling or affiliated person, director, officer, partner,
agent or employee in connection with defending or investigating
any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) pursuant to
which Registrable Securities were registered under the Securities
Act, or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein
not misleading, or caused by any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus
(as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact necessary to
make the statements therein in light of the circumstances under
which they were made not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Holder furnished
to the Company in writing by such Holder expressly for use in any
such Registration Statement or Prospectus.
(2) In addition to the indemnification provided in
Section 6(a) hereof, the Company agrees to indemnify and hold
harmless the Purchaser and Jannock from and against Indemnifiable
Tax Liabilities. For purposes of this Agreement, the term
"Indemnifiable Tax Liabilities" means all liabilities for taxes
(including interest and penalties thereon, and any reasonable
legal and other fees and expenses incurred in investigating or
defending any claim therefor) assessed against the Purchaser
solely to the extent that said liabilities in such amount would
not have been incurred if the Purchase Price (as defined in the
Purchase Agreement) paid to the Purchaser pursuant to Section 4.1
of the Purchase Agreement had been paid in cash on the Closing
Date in the amount of Cdn. $29,000,000, as adjusted in accordance
with Section 4.3 thereof. Each of the Purchaser and Jannock
hereby represents to the Company that, to its knowledge after due
inquiry and consultation with its professional advisors, there is
no reasonable basis to believe that there exist any facts that
would be reasonably likely to give rise to or result in a final
assessment against the Purchaser for taxes in respect of which
the Purchaser would be entitled to make a claim for
indemnification pursuant to this paragraph (b). Each of the
Purchaser and Jannock acknowledges that the Company would not
have agreed to provide the indemnification set forth in this
paragraph (b) except (i) in reliance on the information set forth
in the tax returns of the Purchaser that have been provided to
the Company and (ii) for the represention made by the Purchaser
and Jannock in the immediately preceding sentence.
(3) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its
officers and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Holder, but only
with reference to information relating to such Holder furnished
to the Company in writing by such Holder expressly for use in any
Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto).
(4) In case any proceeding (including any governmental
investigation or other claim or assessment) shall be instituted
or made involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a), (b) or (c) above, such
person (the "indemnified party") shall promptly notify the person
against which such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees
and disbursements of such counsel relating to such proceeding.
In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall
have mutually agreed in writing to the retention of such counsel
or (ii) the indemnifying party fails promptly to assume the
defense of such proceeding or fails to employ counsel reasonably
satisfactory to such indemnified party or parties or (iii) the
named parties to any such proceeding (including any impleaded
parties) include both such indemnified party or parties and the
indemnifying parties or an affiliate of the indemnifying parties
or such indemnified parties, and there may be one or more
defenses available to such indemnified party or parties that are
different from or additional to those available to the
indemnifying parties, in which case, if such indemnified party or
parties notifies the indemnifying parties in writing that it
elects to employ separate counsel of its choice at the expense of
the indemnifying parties, the indemnifying parties shall not have
the right to assume the defense thereof and such counsel shall be
at the expense of the indemnifying parties, it being understood,
however, that unless there exists a conflict among indemnified
parties, the indemnifying parties shall not, in connection with
any one such proceeding or separate but substantially similar or
related proceedings in the same jurisdiction, arising out of the
same general allegations or circumstances, be liable for the fees
and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for such
indemnified party or parties. The indemnifying party shall not
be liable for any settlement of any proceeding effected without
its written consent but, if settled with such consent or if there
be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any
loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party
is a party, and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such
proceeding.
(5) To the extent the indemnification provided for in
paragraph (a) or (c) of this Section 6 is unavailable to an
indemnified party or insufficient in respect of any losses,
claims, damages or liabilities, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by, in the case of a
claim under paragraph (a) of this Section 6, the Company on the
one hand and the Holders on the other hand and, in the case of a
claim under paragraph (c) of this Section 6, by the Company on
the one hand and each Holder who may be an indemnifying party on
the other hand from the offering of such Registrable Securities
or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault, in the case of a claim
under paragraph (a) of this Section 6, of the Company on the one
hand and the Holders on the other hand and, in the case of a
claim under paragraph (c) of this Section 6, by the Company on
the one hand and each Holder who may be an indemnifying party on
the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The
relative fault of the Company on the one hand and the Holders on
the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact relates to information supplied by the Company or
by the Holders and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
(6) The Company and each Holder agrees that it would
not be just or equitable if contribution pursuant to this
Section 6 were determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable
considerations referred to in paragraph (e) above. The amount
paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in
paragraph (e) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses
reasonably incurred (and not otherwise reimbursed) by such
indemnified party in connection with investigating or defending
any such action or claim. 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. The
remedies provided for in this Section 6 are not exclusive and
shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(7) At the request of the Broker, the Company shall
enter into indemnification arrangements customarily requested by
the Broker.
7. Miscellaneous.
(1) No Inconsistent Agreements. The Company has not
entered into nor will the Company on or after the date of this
Agreement enter into any agreement which is inconsistent with the
rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to
the holders of the Company's other issued and outstanding
securities, if any, under any such agreements.
(2) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the
Company has obtained the written consent of Holders of at least a
Majority of the outstanding Registrable Securities affected by
such amendment, modification, supplement, waiver or consent;
provided, however, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of
Holders of Registrable Securities whose securities are being sold
pursuant to a registration statement and that does not directly
or indirectly affect the rights of other Holders of Registrable
Securities may be given by the Holders of a majority of the
Registrable Securities proposed to be sold.
(3) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand delivery, registered first-class mail, telecopier, or any
courier guaranteeing overnight delivery (i) if to a Holder, at
the most current address given by such Holder to the Company by
means of a notice (with copies) given in accordance with the
provisions of this Section 7(c), which address initially is with
respect to the Purchaser, the address set forth in the Purchase
Agreement; and (ii) if to the Company, at the Company's address
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if
personally delivered, five Business Days after being deposited in
the mail, postage prepaid, if mailed; when receipt is
acknowledged, if telecopied; and on the next Business Day, if
timely delivered to an air courier guaranteeing overnight
delivery.
(4) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors,
assigns and transferees of each of the parties, including,
without limitation and without the need for an express
assignment, any subsequent Holder; provided, however, that
nothing herein shall be deemed to permit any assignment, transfer
or other disposition of Registrable Securities in violation of
the terms of the Purchase Agreement or this Agreement. If any
transferee of any Holder shall acquire Registrable Securities, in
any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable
Securities such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and
provisions of this Agreement and such person shall be entitled to
receive the benefits hereof.
(5) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(6) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(7) Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Ohio, without regard to principles of conflicts of laws.
(8) Severability. In the event that any one or more
of the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
* * *
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
XXXXX CORNING
By:______________________________
Name
Title
JANNOCK LIMITED
By:______________________________
Name
Title
CELFORT CONSTRUCTION MATERIALS INC.
By:______________________________
Name
Title
