REGISTRATION RIGHTS AGREEMENT by and among TAS HOLDING, INC. and THE INITIAL HOLDERS SPECIFIED ON THE SIGNATURE PAGES HEREOF Dated as of April 10, 2006
Exhibit 99.7
EXECUTION COPY
by and among
TAS HOLDING, INC.
and
THE INITIAL HOLDERS SPECIFIED ON
THE SIGNATURE PAGES HEREOF
THE SIGNATURE PAGES HEREOF
Dated as of April 10, 2006
REGISTRATION RIGHTS AGREEMENT (this or the “Agreement”) dated as of April 10, 2006, by and
among TAS Holding, Inc., a Delaware corporation (the “Company”), and the Initial Holders specified
on the signature pages to this Agreement.
W
I T N E S S E
T H :
WHEREAS, simultaneously herewith, the Company and the Initial Holders are entering into a
Transaction Agreement (the “Transaction Agreement”), pursuant to which the Company is issuing, and
the Initial Holders are purchasing, certain securities of the Company; and
WHEREAS, in order to induce the Initial Holders to enter into the Transaction Agreement, the
Company has agreed to provide certain registration rights on the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual agreements contained
herein, and for other good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have the following
meanings:
“Affiliate” shall mean (i) with respect to any Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common control with such
Person, and (ii) with respect to any individual, shall also mean the spouse, sibling, child,
step-child, grandchild, niece, nephew or parent of such Person, or the spouse thereof.
“Blackout Period” shall have the meaning set forth in Section 2.6.
“Common Shares” shall mean shares of common stock, par value $0.01 per share, of the
Company.
“Company” shall have the meaning set forth in the preamble. Notwithstanding anything
in this Agreement to the contrary, the term “Company” shall mean, without limitation, any successor
corporation into which the Company is merged.
“Demand Registration” shall mean a registration required to be effected by the Company
pursuant to Section 2.1.
“Demand Registration Statement” shall mean a registration statement of the Company
which covers the Registrable Securities requested to be included therein pursuant to the provisions
of Section 2.1 and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference (or deemed to be incorporated by reference)
therein.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to
time, and the rules and regulations thereunder, or any successor statute.
“Holders” shall mean each of the Initial Holders for so long as it owns any
Registrable Securities and such of its respective heirs, successors and permitted assigns
(including any permitted transferees of Registrable Securities) who acquire or are otherwise the
transferee of Registrable Securities, directly or indirectly, from such Initial Holder (or any
subsequent Holder), for so long as such heirs, successors and permitted assigns own any Registrable
Securities. For purposes of this Agreement, a Person will be deemed to be a Holder whenever such
Person holds an option to purchase, or a security convertible into or exercisable or exchangeable
for, Registrable Securities, whether or not such purchase, conversion, exercise or exchange has
actually been effected and disregarding any legal restrictions upon the exercise of such rights.
Registrable Securities issuable upon exercise of an option or upon conversion, exchange or exercise
of another security shall be deemed outstanding for the purposes of this Agreement.
“Holders’ Counsel” shall mean one firm of counsel (per registration) to the Holders of
Registrable Securities participating in such registration, which counsel shall be selected (i) in
the case of a Demand Registration or an S-3 Registration, by the Initiating Holders holding a
majority of the Registrable Securities for which registration was requested in the Request, and
(ii) in all other cases, by the Majority Holders of the Registration.
“Incidental Registration” shall mean a registration required to be effected by the
Company pursuant to Section 2.2.
“Incidental Registration Statement” shall mean a registration statement of the Company
which covers the Registrable Securities requested to be included therein pursuant to the provisions
of Section 2.2 and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference (or deemed to be incorporated by reference)
therein.
“Initial Holders” shall mean the Persons specified as such on the signature pages to
this Agreement on the date hereof.
“Initial Public Offering” shall mean the first public offering of any class of
securities of the Company pursuant to a registration statement filed with and declared effective by
the SEC.
“Initiating Holders” shall mean, with respect to a particular registration, the
Holders who initiated the Request for such registration.
“Inspectors” shall have the meaning set forth in Section 4.1(g).
“Majority Holders” shall mean one or more Holders of Registrable Securities who would
hold a majority of the Registrable Securities then outstanding.
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“Majority Holders of the Registration” shall mean, with respect to a particular
registration, one or more Holders of Registrable Securities who would hold a majority of the
Registrable Securities to be included in such registration.
“Minority Stockholder” means collectively, Owl Creek I, L.P., Owl Creek II, L.P., Owl
Creek Overseas Fund, Ltd. and Owl Creek Overseas Fund II, Ltd.
“NASD” shall mean the National Association of Securities Dealers, Inc.
“Person” shall mean any individual, firm, partnership, corporation, trust, joint
venture, association, joint stock company, limited liability company, unincorporated organization
or any other entity or organization, including a government or agency or political subdivision
thereof, and shall include any successor (by merger or otherwise) of such entity.
“Principal Stockholder” means LJH, LTD.
“Prospectus” shall mean the prospectus included in a Registration Statement
(including, without limitation, any preliminary prospectus and any 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), and any such Prospectus
as amended or supplemented by any prospectus supplement, and all other amendments and supplements
to such Prospectus, including post-effective amendments, and in each case including all material
incorporated by reference (or deemed to be incorporated by reference) therein.
“Registrable Securities” shall mean (i) any Common Shares issued to the Initial
Holders pursuant to the Transaction Agreement; (ii) any Common Shares otherwise or hereafter
purchased or acquired by the Holders or their Affiliates and (iii) any other securities of the
Company (or any successor or assign of the Company, whether by merger, consolidation, sale of
assets or otherwise) which may be issued or issuable with respect to, in exchange for, or in
substitution of, Registrable Securities referenced in clauses (i) through (ii) above by reason of
any dividend or stock split, combination of shares, merger, consolidation, recapitalization,
reclassification, reorganization, sale of assets or similar transaction. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities when (A) a
registration statement with respect to the sale of such securities shall have been declared
effective under the Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (B) all such securities are sold pursuant to Rule 144 (or any
similar provisions then in force) under the Securities Act, (C) such securities have been otherwise
transferred, a new certificate or other evidence of ownership for them not bearing the legend
restricting further transfer shall have been delivered by the Company and subsequent public
distribution of them shall not require registration under the Securities Act, or (D) such
securities shall have ceased to be outstanding.
“Registration Expenses” shall mean any and all expenses incident to performance of or
compliance with this Agreement by the Company and its subsidiaries, including, without limitation
(i) all SEC, stock exchange, NASD and other registration, listing and filing fees, (ii) all fees
and expenses incurred in connection with compliance with state securities or blue sky
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laws and compliance with the rules of any stock exchange (including fees and disbursements of
counsel in connection with such compliance and the preparation of a blue sky memorandum and legal
investment survey), (iii) all expenses of any Persons in preparing or assisting in preparing, word
processing, printing, distributing, mailing and delivering any Registration Statement, any
Prospectus, any underwriting agreements, transmittal letters, securities sales agreements,
securities certificates and other documents relating to the performance of or compliance with this
Agreement, (iv) the fees and disbursements of counsel for the Company, (v) the fees and
disbursements of Holders’ Counsel, (vi) the fees and disbursements of all independent public
accountants (including the expenses of any audit and/or “cold comfort” letters) and the fees and
expenses of other Persons, including experts, retained by the Company, (vii) the expenses incurred
in connection with making road show presentations and holding meetings with potential investors to
facilitate the distribution and sale of Registrable Securities which are customarily borne by the
issuer, (viii) any fees and disbursements of underwriters customarily paid by issuers or sellers of
securities, and (ix) premiums and other costs of policies of insurance against liabilities arising
out of the public offering of the Registrable Securities being registered; provided,
however, Registration Expenses shall not include discounts and commissions payable to
underwriters, selling brokers, dealer managers or other similar Persons engaged in the distribution
of any of the Registrable Securities; and provided further, that in any case where
Registration Expenses are not to be borne by the Company, such expenses shall not include salaries
of Company personnel or general overhead expenses of the Company, auditing fees, premiums or other
expenses relating to liability insurance required by underwriters of the Company or other expenses
for the preparation of financial statements or other data normally prepared by the Company in the
ordinary course of its business or which the Company would have incurred in any event; and
provided, further, that in the event the Company shall, in accordance with Section
2.2 or Section 2.6 hereof, not register any securities with respect to which it had given written
notice of its intention to register to Holders, notwithstanding anything to the contrary in the
foregoing, all of the costs incurred by the Holders in connection with such registration shall be
deemed to be Registration Expenses.
“Registration Statement” shall mean any registration statement of the Company which
covers any Registrable Securities and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference (or deemed to be
incorporated by reference) therein.
“Request” shall have the meaning set forth in Section 2.1(a).
“S-3 Registration” shall mean a registration required to be effected by the Company
pursuant to Section 2.3(a).
“SEC” shall mean the Securities and Exchange Commission, or any successor agency
having jurisdiction to enforce the Securities Act.
“Securities Act” shall mean the Securities Act of 1933, as amended from time to time,
and the rules and regulations thereunder, or any successor statute.
“Shelf Registration” shall have the meaning set forth in Section 2.1(a).
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“Transaction Agreement” shall have the meaning set forth in the preamble.
“Underwriters” shall mean the underwriters, if any, of the offering being registered
under the Securities Act.
“Underwritten Offering” shall mean a sale of securities of the Company to an
Underwriter or Underwriters for reoffering to the public.
“Withdrawn Demand Registration” shall have the meaning set forth in Section 2.1(a).
“Withdrawn Request” shall have the meaning set forth in Section 2.1(a).
2. REGISTRATION UNDER THE SECURITIES ACT.
2.1 Demand Registration.
(a) Right to Demand Registration. Subject to Section 2.1(c), at any time or from time
to time the Principal Stockholder and the Minority Stockholder shall have the right to request in
writing that the Company register all or part of such Holders’ Registrable Securities (a “Request”)
(which Request shall specify the amount of Registrable Securities intended to be disposed of by
such Holders and the intended method of disposition thereof) by filing with the SEC a Demand
Registration Statement. As promptly as practicable, but no later than 10 days after receipt of a
Request, the Company shall give written notice of such requested registration to all Holders of
Registrable Securities. Subject to Section 2.1(b), the Company shall include in a Demand
Registration (i) the Registrable Securities intended to be disposed of by the Initiating Holders
and (ii) the Registrable Securities intended to be disposed of by any other Holder which shall have
made a written request (which request shall specify the amount of Registrable Securities to be
registered and the intended method of disposition thereof) to the Company for inclusion thereof in
such registration within 20 days after the receipt of such written notice from the Company. The
Company shall, as expeditiously as possible following a Request, use its best efforts to cause to
be filed with the SEC a Demand Registration Statement providing for the registration under the
Securities Act of the Registrable Securities which the Company has been so requested to register by
all such Holders, to the extent necessary to permit the disposition of such Registrable Securities
so to be registered in accordance with the intended methods of disposition thereof specified in
such Request or further requests (including, without limitation, by means of a shelf registration
pursuant to Rule 415 under the Securities Act (a “Shelf Registration”) if so requested and if the
Company is then eligible to use such a registration). The Company shall use its best efforts to
have such Demand Registration Statement declared effective by the SEC as soon as practicable
thereafter and to keep such Demand Registration Statement continuously effective for the period
specified in Section 4.1(b).
A Request may be withdrawn prior to the filing of the Demand Registration Statement by the
Initiating Holders for which registration was requested in the Request (a “Withdrawn Request”) and
a Demand Registration Statement may be withdrawn prior to the effectiveness thereof by the
Initiating Holders for which registration was requested in the Request (a “Withdrawn Demand
Registration”), and such withdrawals shall be treated as a Demand Registration which shall have
been effected pursuant to this Section 2.1, unless the
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Holders of Registrable Securities to be included in such Registration Statement reimburse the
Company for its reasonable out-of-pocket Registration Expenses relating to the preparation and
filing of such Demand Registration Statement (to the extent actually incurred); provided;
however, that if a Withdrawn Request or Withdrawn Registration Statement is made (A)
because of a material adverse change in the business, financial condition or prospects of the
Company, or (B) because the sole or lead managing Underwriter advises that the amount of
Registrable Securities to be sold in such offering be reduced pursuant to Section 2.1(b) by more
than 10% of the Registrable Securities to be included in such Registration Statement, or (C)
because of a postponement of such registration pursuant to Section 2.6, then such withdrawal shall
not be treated as a Demand Registration effected pursuant to this Section 2.1 (and shall not be
counted toward the number of Demand Registrations), and the Company shall pay all Registration
Expenses in connection therewith. Any Holder requesting inclusion in a Demand Registration may, at
any time prior to the effective date of the Demand Registration Statement (and for any reason)
revoke such request by delivering written notice to the Company revoking such requested inclusion.
The registration rights granted pursuant to the provisions of this Section 2.1 shall be in
addition to the registration rights granted pursuant to the other provisions of Section 2 hereof.
(b) Priority in Demand Registrations. If a Demand Registration involves an
Underwritten Offering, and the sole or lead managing Underwriter, as the case may be, of such
Underwritten Offering shall advise the Company in writing (with a copy to each Holder requesting
registration) on or before the date five days prior to the date then scheduled for such offering
that, in its opinion, the amount of Registrable Securities requested to be included in such Demand
Registration exceeds the number which can be sold in such offering within a price range acceptable
to the Majority Holders of the Registration (such writing to state the basis of such opinion and
the approximate number of Registrable Securities which may be included in such offering), the
Company shall include in such Demand Registration, to the extent of the number which the Company is
so advised may be included in such offering, the Registrable Securities requested to be included in
the Demand Registration by the Holders allocated pro rata in proportion to the
number of Registrable Securities requested to be included in such Demand Registration by each of
them. In the event the Company shall not, by virtue of this Section 2.1(b), include in any Demand
Registration all of the Registrable Securities of any Holder requesting to be included in such
Demand Registration, such Holder may, upon written notice to the Company given within five days of
the time such Holder first is notified of such matter, reduce the amount of Registrable Securities
it desires to have included in such Demand Registration, whereupon only the Registrable Securities,
if any, it desires to have included will be so included and the Holders not so reducing shall be
entitled to a corresponding increase in the amount of Registrable Securities to be included in such
Demand Registration.
(c) Limitations on Registrations. The rights of Holders of Registrable Securities to
request Demand Registrations pursuant to Section 2.1(a) are subject to the following limitations:
(i) in no event shall the Company be required to effect a Demand Registration until after March 15,
2008,(ii) the Company shall not be obligated to effect a Demand Registration unless 150 days have
elapsed since the last day that a prior Demand Registration Statement remained effective (or, if
earlier, the day on which the last of the
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Registrable Securities covered by such prior Demand Registration Statement was sold), and
(iii) in no event shall the Company be required to pay Registration Expenses of more than two
Demand Registrations by each of the Principal Stockholder and the Minority Stockholder;
provided, however, (i) that such number shall be increased to the extent the
Company does not include in what would otherwise be the final registration for which the Company is
required to pay Registration Expenses the number of Registrable Securities requested to be
registered by the Holders by reason of Section 2.1(b) and (ii) the Minority Stockholder shall be
deemed not to have exercised a demand right to the extent the Principal Stockholder exercises its
rights under Section 3.7 of the Stockholders’ Agreement; and provided, further,
that the Registration Expenses in connection with each other Demand Registration shall be allocated
pro rata among all Persons on whose behalf securities of the Company are included in such
registration, on the basis of the respective amounts of the securities then being registered on
their behalf.
(d) Underwriting; Selection of Underwriters. Notwithstanding anything to the contrary
contained in Section 2.1(a), if the Initiating Holders for which registration was requested in the
Request so elect, the offering of such Registrable Securities pursuant to such Demand Registration
shall be in the form of a firm commitment Underwritten Offering; and such Initiating Holders may
require that all Persons (including other Holders) participating in such registration sell their
Registrable Securities to the Underwriters at the same price and on the same terms of underwriting
applicable to the Initiating Holders. If any Demand Registration involves an Underwritten
Offering, the sole or managing Underwriters and any additional investment bankers and managers to
be used in connection with such registration shall be selected by the Initiating Holders for which
registration was requested in the Request, subject to the approval of the Company (such approval
not to be unreasonably withheld).
(e) Registration of Other Securities. Whenever the Company shall effect a Demand
Registration, no securities other than the Registrable Securities shall be covered by such
registration unless the Initiating Holders for which registration was requested in the Request
shall have consented in writing to the inclusion of such other securities.
(f) Effective Registration Statement; Suspension. A Demand Registration Statement
shall not be deemed to have become effective (and the related registration will not be deemed to
have been effected) (i) unless it has been declared effective by the SEC and remains effective in
compliance with the provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such Demand Registration Statement for the time period specified
in Section 4.1(b), (ii) if the offering of any Registrable Securities pursuant to such Demand
Registration Statement is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, or (iii) if, in the case of an
Underwritten Offering, the conditions to closing specified in an underwriting agreement to which
the Company is a party are not satisfied other than by the sole reason of any breach or failure by
the Holders of Registrable Securities or are not otherwise waived.
(g) Other Registrations. During the period (i) beginning on the date of a Request and
(ii) ending on the date that is 90 days after the date that a Demand Registration Statement filed
pursuant to such Request has been declared effective by the SEC or, if the Holders shall withdraw
such Request or such Demand Registration Statement, on the date of such Withdrawn Request or such
Withdrawn Registration Statement, the Company shall not,
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without the consent of the Initiating Holders for which registration was requested in the
Request, file a registration statement pertaining to any other securities of the Company.
(h) Registration Statement Form. Registrations under this Section 2.1 shall be on
such appropriate registration form of the SEC (i) as shall be selected by the Initiating Holders
for which registration was requested in the Request, and (ii) which shall be available for the sale
of Registrable Securities in accordance with the intended method or methods of disposition
specified in the requests for registration. The Company agrees to include in any such Registration
Statement all information which any selling Holder, upon advice of counsel, shall reasonably
request.
2.2 Incidental Registration.
(a) Right to Include Registrable Securities. If the Company at any time or from time
to time proposes to register any of its securities under the Securities Act (other than in a
registration on Form S-4 or S-8 or any successor form to such forms and other than pursuant to
Section 2.1 or 2.3) whether or not pursuant to registration rights granted to other holders of its
securities and whether or not for sale for its own account, the Company shall deliver prompt
written notice (which notice shall be given at least 30 days prior to such proposed registration)
to all Holders of Registrable Securities of its intention to undertake such registration,
describing in reasonable detail the proposed registration and distribution (including the
anticipated range of the proposed offering price, the class and number of securities proposed to be
registered and the distribution arrangements) and of such Holders’ right to participate in such
registration under this Section 2.2 as hereinafter provided. Subject to the other provisions of
this paragraph (a) and Section 2.2(b), upon the written request of any Holder made within 20 days
after the receipt of such written notice (which request shall specify the amount of Registrable
Securities to be registered and the intended method of disposition thereof), the Company shall
effect the registration under the Securities Act of all Registrable Securities requested by Holders
to be so registered (an “Incidental Registration”), to the extent requisite to permit the
disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable
Securities so to be registered, by inclusion of such Registrable Securities in the Registration
Statement which covers the securities which the Company proposes to register and shall cause such
Registration Statement to become and remain effective with respect to such Registrable Securities
in accordance with the registration procedures set forth in Section 4. If an Incidental
Registration involves an Underwritten Offering, immediately upon notification to the Company from
the Underwriter of the price at which such securities are to be sold, the Company shall so advise
each participating Holder. The Holders requesting inclusion in an Incidental Registration may, at
any time prior to the effective date of the Incidental Registration Statement (and for any reason),
revoke such request by delivering written notice to the Company revoking such requested inclusion.
If at any time after giving written notice of its intention to register any securities and
prior to the effective date of the Incidental Registration Statement filed in connection with such
registration, the Company shall determine for any reason not to register or to delay registration
of such securities, the Company may, at its election, give written notice of such determination to
each Holder of Registrable Securities and, thereupon, (A) in the case of a determination not to
register, the Company shall be relieved of its obligation to register any
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Registrable Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses incurred in connection therewith), without prejudice, however, to the
rights of Holders to cause such registration to be effected as a registration under Section 2.1 or
2.3(a), and (B) in the case of a determination to delay such registration, the Company shall be
permitted to delay the registration of such Registrable Securities for the same period as the delay
in registering such other securities; provided, however, that if such delay shall
extend beyond 120 days from the date the Company received a request to include Registrable
Securities in such Incidental Registration, then the Company shall again give all Holders the
opportunity to participate therein and shall follow the notification procedures set forth in the
preceding paragraph. There is no limitation on the number of such Incidental Registrations
pursuant to this Section 2.2 which the Company is obligated to effect.
The registration rights granted pursuant to the provisions of this Section 2.2 shall be in
addition to the registration rights granted pursuant to the other provisions of Section 2 hereof.
(b) Priority in Incidental Registration. If an Incidental Registration involves an
Underwritten Offering (on a firm commitment basis), and the sole or the lead managing Underwriter,
as the case may be, of such Underwritten Offering shall advise the Company in writing (with a copy
to each Holder requesting registration) on or before the date five days prior to the date then
scheduled for such offering that, in its opinion, the amount of securities (including Registrable
Securities) requested to be included in such registration exceeds the amount which can be sold in
such offering without interfering with the successful marketing of the securities being offered
(such writing to state the basis of such opinion and the approximate number of such securities
which may be included in such offering without such effect), the Company shall include in such
registration, to the extent of the number which the Company is so advised may be included in such
offering without such effect, (i) in the case of a registration initiated by the Company, (A)
first, the securities that the Company proposes to register for its own account, (B) second, the
Registrable Securities requested to be included in such registration by the Holders, allocated
pro rata in proportion to the number of Registrable Securities requested to be
included in such registration by each of them, and (C) third, other securities of the Company to be
registered on behalf of any other Person, and (ii) in the case of a registration initiated by a
Person other than the Company, (A) first, the Registrable Securities requested to be included in
such registration by the Holders and by any Persons initiating such registration, allocated
pro rata in proportion to the number of securities requested to be included in such
registration by each of them, (B) second, the securities that the Company proposes to register for
its own account, and (C) third, other securities of the Company to be registered on behalf of any
other Person; provided, however, that in the event the Company will not, by virtue
of this Section 2.2(b), include in any such registration all of the Registrable Securities of any
Holder requested to be included in such registration, such Holder may, upon written notice to the
Company given within three days of the time such Holder first is notified of such matter, reduce
the amount of Registrable Securities it desires to have included in such registration, whereupon
only the Registrable Securities, if any, it desires to have included will be so included and the
Holders not so reducing shall be entitled to a corresponding increase in the amount of Registrable
Securities to be included in such registration.
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(c) Selection of Underwriters. If any Incidental Registration involves an
Underwritten Offering, the sole or managing Underwriter(s) and any additional investment bankers
and managers to be used in connection with such registration shall be subject to the approval of
the Majority Holders of the Registration (such approval not to be unreasonably withheld).
2.3 S-3 Registration; Shelf Registration.
(a) S-3 Registration. If at any time (i) one or more Holders of Registrable
Securities representing 10% or more of the Registrable Securities then outstanding request that the
Company file a registration statement on Form S-3 or any successor form thereto for a public
offering of all or any portion of the shares of Registrable Securities held by such Holder or
Holders, the reasonably anticipated aggregate price to the public of which would exceed $1,000,000,
and (ii) the Company is a registrant entitled to use Form S-3 or any successor form thereto to
register such securities, then the Company shall, as expeditiously as possible following such
Request, use its best efforts to register under the Securities Act on Form S-3 or any successor
form thereto, for public sale in accordance with the intended methods of disposition specified in
such Request or any subsequent requests (including, without limitation, by means of a Shelf
Registration) the Registrable Securities specified in such Request and any subsequent requests;
provided, that if such registration is for an Underwritten Offering, the terms of Sections
2.1(b) and 2.1(d) shall apply (and any reference to “Demand Registration” therein shall, for
purposes of this Section 2.3, instead be deemed a reference to “S-3 Registration”). Whenever the
Company is required by this Section 2.3 to use its best efforts to effect the registration of
Registrable Securities, each of the procedures and requirements of Section 2.1(a) and 2.1(e)
(including but not limited to the requirements that the Company (A) notify all Holders of
Registrable Securities from whom such Request for registration has not been received and provide
them with the opportunity to participate in the offering and (B) use its best efforts to have such
S-3 Registration Statement declared and remain effective for the time period specified herein)
shall apply to such registration (and any reference in such Sections 2.1(a) and 2.1(e) to “Demand
Registration” shall, for purposes of this Section 2.3, instead be deemed a reference to “S-3
Registration”). Notwithstanding anything to the contrary contained herein, no Request may be made
under this Section 2.3 within 90 days after the effective date of a Registration Statement filed by
the Company covering a firm commitment Underwritten Offering in which the Holders of Registrable
Securities shall have been entitled to join pursuant to this Agreement in which there shall have
been effectively registered all shares of Registrable Securities as to which registration shall
have been requested. There is no limitation on the number of S-3 Registrations that the Company is
obligated to effect.
The registration rights granted pursuant to the provisions of this Section 2.3(a) shall be in
addition to the registration rights granted pursuant to the other provisions of this Section 2.
(b) Shelf Registration. If a request made pursuant to Section 2.1 or 2.3(a) is for a
Shelf Registration, the Company shall use its best efforts to keep the Shelf Registration
continuously effective through the date on which all of the Registrable Securities covered by such
Shelf Registration may be sold pursuant to Rule 144(k) under the Securities Act (or any successor
provision having similar effect); provided, however, that prior to the termination
of
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such Shelf Registration, the Company shall first furnish to each Holder of Registrable
Securities participating in such Shelf Registration (i) an opinion, in form and substance
satisfactory to the Majority Holders of the Registration, of counsel for the Company satisfactory
to the Majority Holders of the Registration stating that such Registrable Securities are freely
saleable pursuant to Rule 144(k) under the Securities Act (or any successor provision having
similar effect) or (ii) a “No-Action Letter” from the staff of the SEC stating that the SEC would
not recommend enforcement action if the Registrable Securities included in such Shelf Registration
were sold in a public sale other than pursuant to an effective registration statement.
2.4 Expenses. The Company shall pay all Registration Expenses in connection with any
Demand Registration, Incidental Registration, S-3 Registration or Shelf Registration, whether or
not such registration shall become effective and whether or not all Registrable Securities
originally requested to be included in such registration are withdrawn or otherwise ultimately not
included in such registration, except as otherwise provided with respect to a Withdrawn Request and
a Withdrawn Demand Registration in Section 2.1(a). Each Holder shall pay all discounts and
commissions payable to underwriters, selling brokers, managers or other similar Persons engaged in
the distribution of such Holder’s Registrable Securities pursuant to any registration pursuant to
this Section 2.
2.5 Underwritten Offerings.
(a) Demand Underwritten Offerings. If requested by the sole or lead managing
Underwriter for any Underwritten Offering effected pursuant to a Demand Registration or an S-3
Registration, the Company shall enter into a customary underwriting agreement with the Underwriters
for such offering, such agreement to be reasonably satisfactory in substance and form to each
Holder of Registrable Securities participating in such offering and to contain such representations
and warranties by the Company and such other terms as are generally prevailing in agreements of
that type, including, without limitation, indemnification and contribution to the effect and to the
extent provided in Section 5.
(b) Holders of Registrable Securities to be Parties to Underwriting Agreement. The
Holders of Registrable Securities to be distributed by Underwriters in an Underwritten Offering
contemplated by Section 2 shall be parties to the underwriting agreement between the Company and
such Underwriters and may, at such Holders’ option, require that any or all of the representations
and warranties by, and the other agreements on the part of, the Company to and for the benefit of
such Underwriters shall also be made to and for the benefit of such Holders of Registrable
Securities and that any or all of the conditions precedent to the obligations of such Underwriters
under such underwriting agreement be conditions precedent to the obligations of such Holders of
Registrable Securities; provided, however, that the Company shall not be required
to make any representations or warranties with respect to written information specifically provided
by a selling Holder for inclusion in the Registration Statement. No Holder shall be required to
make any representations or warranties to, or agreements with, the Company or the Underwriters
other than representations, warranties or agreements regarding such Holder, such Holder’s
Registrable Securities and such Holder’s intended method of disposition.
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(c) Participation in Underwritten Registration. Notwithstanding anything herein to
the contrary, no Person may participate in any underwritten registration hereunder unless such
Person (i) agrees to sell its securities on the same terms and conditions provided in any
underwritten arrangements approved by the Persons entitled hereunder to approve such arrangement
and (ii) accurately completes and executes in a timely manner all questionnaires, powers of
attorney, indemnities, custody agreements, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
2.6 Postponements. The Company shall be entitled to postpone a Demand Registration
and an S-3 Registration and to require the Holders of Registrable Securities to discontinue the
disposition of their securities covered by a Shelf Registration during any Blackout Period (as
defined below) (i) if the Board of Directors of the Company determines in good faith that effecting
such a registration or continuing such disposition at such time would have a material adverse
effect upon a proposed sale of all (or substantially all) of the assets of the Company or a merger,
reorganization, recapitalization or similar current transaction materially affecting the capital
structure or equity ownership of the Company, or (ii) if the Company is in possession of material
information which the Board of Directors of the Company determines in good faith it is not in the
best interests of the Company to disclose in a registration statement at such time; provided,
however, that the Company may only delay a Demand Registration or an S-3 Registration pursuant to
this Section 2.6 by delivery of a Blackout Notice (as defined below) within 30 days of delivery of
the request for such Registration under Section 2.1 or Section 2.3, as applicable, and may delay a
Demand Registration or an S-3 Registration and require the Holders of Registrable Securities to
discontinue the disposition of their securities covered by a Shelf Registration only for a
reasonable period of time not to exceed 90 days (or such earlier time as such transaction is
consummated or no longer proposed or the material information has been made public) (the “Blackout
Period”). There shall not be more than one Blackout Period in any 12 month period. The Company
shall promptly notify the Holders in writing (a “Blackout Notice”) of any decision to postpone a
Demand Registration or an S-3 Registration or to discontinue sales of Registrable Securities
covered by a Shelf Registration pursuant to this Section 2.6 and shall include a general statement
of the reason for such postponement, an approximation of the anticipated delay and an undertaking
by the Company promptly to notify the Holders as soon as a Demand Registration or an S-3
Registration may be effected or sales of Registrable Securities covered by a Shelf Registration may
resume. In making any such determination to initiate or terminate a Blackout Period, the Company
shall not be required to consult with or obtain the consent of any Holder, and any such
determination shall be the Company’s sole responsibility. Each Holder shall treat all notices
received from the Company pursuant to this Section 2.6 in the strictest confidence and shall not
disseminate such information. If the Company shall postpone the filing of a Demand Registration
Statement or an S-3 Registration Statement, the Initiating Holders for which registration was
requested in the Request who were to participate therein shall have the right to withdraw the
request for registration. Any such withdrawal shall be made by giving written notice to the
Company within 30 days after receipt of the Blackout Notice. Such withdrawn registration request
shall not be treated as a Demand Registration effected pursuant to Section 2.1 (and shall not be
counted towards the number of Demand Registrations effected), and the Company shall pay all
Registration Expenses in connection therewith.
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3. HOLDBACK ARRANGEMENTS.
3.1 Restrictions on Sale by Holders of Registrable Securities. Each Holder of
Registrable Securities agrees, by acquisition of such Registrable Securities, if timely requested
in writing by the sole or lead managing Underwriter in an Underwritten Offering of any Registrable
Securities, not to make any short sale of, loan, grant any option for the purchase of or effect any
public sale or distribution, including a sale pursuant to Rule 144 (or any successor provision
having similar effect) under the Securities Act of any Registrable Securities or any other equity
security of the Company (or any security convertible into or exchangeable or exercisable for any
equity security of the Company) (except as part of such underwritten registration), during the time
period reasonably requested by the sole or lead managing Underwriter not to exceed 90 days,
beginning on the effective date of the applicable Registration Statement.
3.2 Restrictions on Sale by the Company and Others. The Company agrees that (i) if
timely requested in writing by the sole or lead managing Underwriter in an Underwritten Offering of
any Registrable Securities, not to make any short sale of, loan, grant any option for the purchase
of or effect any public sale or distribution of any of the Company’s equity securities (or any
security convertible into or exchangeable or exercisable for any of the Company’s equity
securities) during the time period reasonably requested by the sole or lead managing Underwriter
not to exceed 90 days, beginning on the effective date of the applicable Registration Statement
(except as part of such underwritten registration or pursuant to registrations on Forms S-4 or S-8
or any successor form to such forms), and (ii) it will cause each holder of equity securities (or
any security convertible into or exchangeable or exercisable for any of its equity securities) of
the Company purchased from the Company at any time after the date of this Agreement (other than in
a registered public offering) to so agree.
4. REGISTRATION PROCEDURES.
4.1 Obligations of the Company. Whenever the Company is required to effect the
registration of Registrable Securities under the Securities Act pursuant to Section 2 of this
Agreement, the Company shall, as expeditiously as possible:
(a) prepare and file with the SEC (promptly, and in any event within 60 days after receipt of
a request to register Registrable Securities) the requisite Registration Statement to effect such
registration, which Registration Statement 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 its best efforts to cause such Registration Statement
to become effective (provided, that the Company may discontinue any registration of its
securities that are not Registrable Securities, and, under the circumstances specified in Section
2.2, its securities that are Registrable Securities); provided, however, that
before filing a Registration Statement or Prospectus or any amendments or supplements thereto, or
comparable statements under securities or blue sky laws of any jurisdiction, the Company shall (i)
provide Holders’ Counsel and any other Inspector with an adequate and appropriate opportunity to
participate in the preparation of such Registration Statement and each Prospectus included therein
(and each amendment or supplement thereto or comparable statement) to be filed with the SEC, which
documents shall be subject to the review and comment of Holders’ Counsel, and (ii) not file any
such Registration Statement or Prospectus (or amendment or
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supplement thereto or comparable statement) with the SEC to which Holder’s Counsel, any
selling Holder or any other Inspector shall have reasonably objected on the grounds that such
filing does not comply in all material respects with the requirements of the Securities Act or of
the rules or regulations thereunder;
(b) prepare and file with the SEC such amendments and supplements to such Registration
Statement and the Prospectus used in connection therewith as may be necessary (i) to keep such
Registration Statement effective, and (ii) to comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by such Registration Statement, in
each case until such time as all of such Registrable Securities have been disposed of in accordance
with the intended methods of disposition by the seller(s) thereof set forth in such Registration
Statement; provided, that except with respect to any Shelf Registration, such period need
not extend beyond nine months after the effective date of the Registration Statement; and
provided further, that with respect to any Shelf Registration, such period need not
extend beyond the time period provided in Section 2.3, and which periods, in any event, shall
terminate when all Registrable Securities covered by such Registration Statement have been sold
(but not before the expiration of the 90 day period referred to in Section 4(3) of the Securities
Act and Rule 174 thereunder, if applicable);
(c) furnish, without charge, to each selling Holder of such Registrable Securities and each
Underwriter, if any, of the securities covered by such Registration Statement, such number of
copies of such Registration Statement, each amendment and supplement thereto (in each case
including all exhibits), and the Prospectus included in such Registration Statement (including each
preliminary Prospectus) in conformity with the requirements of the Securities Act, and other
documents, as such selling Holder and Underwriter may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Securities owned by such selling Holder (the
Company hereby consenting to the use in accordance with applicable law of each such Registration
Statement (or amendment or post-effective amendment thereto) and each such Prospectus (or
preliminary prospectus or supplement thereto) by each such selling Holder of Registrable Securities
and the Underwriters, if any, in connection with the offering and sale of the Registrable
Securities covered by such Registration Statement or Prospectus);
(d) prior to any public offering of Registrable Securities, use its best efforts to register
or qualify all Registrable Securities and other securities covered by such Registration Statement
under such other securities or blue sky laws of such jurisdictions as any selling Holder of
Registrable Securities covered by such Registration Statement or the sole or lead managing
Underwriter, if any, may reasonably request to enable such selling Holder to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such selling Holder and to
continue such registration or qualification in effect in each such jurisdiction for as long as such
Registration Statement remains in effect (including through new filings or amendments or renewals),
and do any and all other acts and things which may be necessary or advisable to enable any such
selling Holder to consummate the disposition in such jurisdictions of the Registrable Securities
owned by such selling Holder; provided, however, that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction where it would not otherwise
be required to qualify but for this Section 4.1(d), (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process in any such jurisdiction;
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(e) use its best efforts to obtain all other approvals, consents, exemptions or authorizations
from such governmental agencies or authorities as may be necessary to enable the selling Holders of
such Registrable Securities to consummate the disposition of such Registrable Securities;
(f) promptly notify Holders’ Counsel, each Holder of Registrable Securities covered by such
Registration Statement and the sole or lead managing Underwriter, if any: (i) when the Registration
Statement, any pre-effective amendment, the Prospectus or any prospectus supplement related thereto
or post-effective amendment to the Registration Statement has been filed and, with respect to the
Registration Statement or any post-effective amendment, when the same has become effective, (ii) of
any request by the SEC or any state securities or blue sky authority for amendments or supplements
to the Registration Statement or the Prospectus related thereto or for additional information,
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration
Statement or the initiation or threat of any proceedings for that purpose, (iv) of the receipt by
the Company of any notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the
initiation of any proceeding for such purpose, (v) of the existence of any fact of which the
Company becomes aware or the happening of any event which results in (A) the Registration Statement
containing an untrue statement of a material fact or omitting to state a material fact required to
be stated therein or necessary to make any statements therein not misleading, or (B) the Prospectus
included in such Registration Statement containing an untrue statement of a material fact or
omitting to state a material fact required to be stated therein or necessary to make any statements
therein, in the light of the circumstances under which they were made, not misleading, (vi) if at
any time the representations and warranties contemplated by Section 2.5(b) cease to be true and
correct in all material respects, and (vii) of the Company’s reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate or that there exists
circumstances not yet disclosed to the public which make further sales under such Registration
Statement inadvisable pending such disclosure and post-effective amendment; and, if the
notification relates to an event described in any of the clauses (ii) through (vii) of this Section
4.1(f), the Company shall promptly prepare a supplement or post-effective amendment to such
Registration Statement or related Prospectus or any document incorporated therein by reference or
file any other required document so that (1) such Registration Statement shall not 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, and (2) as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, such Prospectus shall not include
an untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein in the light of the circumstances under which
they were made not misleading (and shall furnish to each such Holder and each Underwriter, if any,
a reasonable number of copies of such Prospectus so supplemented or amended); and if the
notification relates to an event described in clause (iii) of this Section 4.1(f), the Company
shall take all reasonable action required to prevent the entry of such stop order or to remove it
if entered;
(g) make available for inspection by any selling Holder of Registrable Securities, any sole or
lead managing Underwriter participating in any disposition pursuant to such Registration Statement,
Holders’ Counsel and any attorney, accountant or other agent
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retained by any such seller or any Underwriter (each, an “Inspector” and, collectively, the
“Inspectors”), all financial and other records, pertinent corporate documents and properties of the
Company and any subsidiaries thereof as may be in existence at such time (collectively, the
“Records”) as shall be necessary, in the opinion of such Holders’ and such Underwriters’ respective
counsel, to enable them to exercise their due diligence responsibility and to conduct a reasonable
investigation within the meaning of the Securities Act, and cause the Company’s and any
subsidiaries’ officers, directors and employees, and the independent public accountants of the
Company, to supply all information reasonably requested by any such Inspectors in connection with
such Registration Statement;
(h) obtain an opinion from the Company’s counsel and a “cold comfort” letter from the
Company’s independent public accountants who have certified the Company’s financial statements
included or incorporated by reference in such Registration Statement, in each case dated the
effective date of such Registration Statement (and if such registration involves an Underwritten
Offering, dated the date of the closing under the underwriting agreement), in customary form and
covering such matters as are customarily covered by such opinions and “cold comfort” letters
delivered to underwriters in underwritten public offerings, which opinion and letter shall be
reasonably satisfactory to the sole or lead managing Underwriter, if any, and to the Majority
Holders of the Registration, and furnish to each Holder participating in the offering and to each
Underwriter, if any, a copy of such opinion and letter addressed to such Holder (in the case of the
opinion) and Underwriter (in the case of the opinion and the “cold comfort” letter);
(i) provide a CUSIP number for all Registrable Securities and provide and cause to be
maintained a transfer agent and registrar for all such Registrable Securities covered by such
Registration Statement not later than the effectiveness of such Registration Statement;
(j) otherwise use its best efforts to comply with all applicable rules and regulations of the
SEC and any other governmental agency or authority having jurisdiction over the offering, and make
available to its security holders, as soon as reasonably practicable but no later than 90 days
after the end of any 12-month period, an earnings statement (i) commencing at the end of any month
in which Registrable Securities are sold to Underwriters in an Underwritten Offering and (ii)
commencing with the first day of the Company’s calendar month next succeeding each sale of
Registrable Securities after the effective date of a Registration Statement, which statement shall
cover such 12-month periods, in a manner which satisfies the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(k) if so requested by the Initiating Holders, use its best efforts to cause all such
Registrable Securities to be listed (i) on each national securities exchange on which the Company’s
securities are then listed or (ii) if securities of the Company are not at the time listed on any
national securities exchange (or if the listing of Registrable Securities is not permitted under
the rules of each national securities exchange on which the Company’s securities are then listed),
on a national securities exchange designated by the Majority Holders of the Registration;
(l) keep each selling Holder of Registrable Securities advised in writing as to the initiation
and progress of any registration under Xxxxxxx 0 xxxxxxxxx;
- 00 -
(x) enter into and perform customary agreements (including, if applicable, an underwriting
agreement in customary form) and provide officers’ certificates and other customary closing
documents;
(n) cooperate with each selling Holder of Registrable Securities and each Underwriter
participating in the disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD and make reasonably available its
employees and personnel and otherwise provide reasonable assistance to the Underwriters (taking
into account the needs of the Company’s businesses and the requirements of the marketing process)
in the marketing of Registrable Securities in any Underwritten Offering;
(o) furnish to each Holder participating in the offering and the sole or lead managing
Underwriter, if any, without charge, at least one manually-signed copy of the Registration
Statement and any post-effective amendments thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits (including those deemed to be
incorporated by reference);
(p) cooperate with the selling Holders of Registrable Securities and the sole or lead managing
Underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing
any restrictive legends representing the Registrable Securities to be sold, and cause such
Registrable Securities to be issued in such denominations and registered in such names in
accordance with the underwriting agreement prior to any sale of Registrable Securities to the
Underwriters or, if not an Underwritten Offering, in accordance with the instructions of the
selling Holders of Registrable Securities at least three business days prior to any sale of
Registrable Securities;
(q) if requested by the sole or lead managing Underwriter or any selling Holder of Registrable
Securities, immediately incorporate in a prospectus supplement or post-effective amendment such
information concerning such Holder of Registrable Securities, the Underwriters or the intended
method of distribution as the sole or lead managing Underwriter or the selling Holder of
Registrable Securities reasonably requests to be included therein and as is appropriate in the
reasonable judgment of the Company, including, without limitation, information with respect to the
number of shares of the Registrable Securities being sold to the Underwriters, the purchase price
being paid therefor by such Underwriters and with respect to any other terms of the Underwritten
Offering of the Registrable Securities to be sold in such offering; make all required filings of
such Prospectus supplement or post-effective amendment as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment; and supplement or make
amendments to any Registration Statement if requested by the sole or lead managing Underwriter of
such Registrable Securities; and
(r) use its best efforts to take all other steps necessary to expedite or facilitate the
registration and disposition of the Registrable Securities contemplated hereby.
4.2 Seller Information. The Company may require each selling Holder of Registrable
Securities as to which any registration is being effected to furnish to the Company such
information regarding such Holder, such Holder’s Registrable Securities and such Holder’s
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intended method of disposition as the Company may from time to time reasonably request in
writing; provided that such information shall be used only in connection with such
registration.
If any Registration Statement or comparable statement under “blue sky” laws refers to any
Holder by name or otherwise as the Holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and substance satisfactory
to such Holder and the Company, to the effect that the holding by such Holder of such securities is
not to be construed as a recommendation by such Holder of the investment quality of the Company’s
securities covered thereby and that such holding does not imply that such Holder will assist in
meeting any future financial requirements of the Company, and (ii) in the event that such reference
to such Holder by name or otherwise is not in the judgment of the Company, as advised by counsel,
required by the Securities Act or any similar federal statute or any state “blue sky” or securities
law then in force, the deletion of the reference to such Holder.
4.3 Notice to Discontinue. Each Holder of Registrable Securities agrees by
acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4.1(f)(ii) through (vii), such Holder shall
forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities until such Holder’s receipt of the copies of the supplemented
or amended prospectus contemplated by Section 4.1(f) and, if so directed by the Company, such
Holder shall deliver to the Company (at the Company’s expense) all copies, other than permanent
file copies, then in such Holder’s possession of the Prospectus covering such Registrable
Securities which is current at the time of receipt of such notice. If the Company shall give any
such notice, the Company shall extend the period during which such Registration Statement shall be
maintained effective pursuant to this Agreement (including, without limitation, the period referred
to in Section 4.1(b)) by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 4.1(f) to and including the date when the Holder shall
have received the copies of the supplemented or amended prospectus contemplated by and meeting the
requirements of Section 4.1(f).
5. INDEMNIFICATION; CONTRIBUTION.
5.1 Indemnification by the Company. The Company agrees to indemnify and hold
harmless, to the fullest extent permitted by law, each Holder of Registrable Securities, its
officers, directors, partners, members, shareholders, employees, Affiliates and agents
(collectively, “Agents”) and each Person who controls such Holder (within the meaning of the
Securities Act) and its Agents with respect to each registration which has been effected pursuant
to this Agreement, against any and all losses, claims, damages or liabilities, joint or several,
actions or proceedings (whether commenced or threatened) in respect thereof, and expenses (as
incurred or suffered and including, but not limited to, any and all expenses incurred in
investigating, preparing or defending any litigation or proceeding, whether commenced or
threatened, and the reasonable fees, disbursements and other charges of legal counsel) in respect
thereof (collectively, “Claims”), insofar as such Claims arise out of or are based upon any untrue
or alleged untrue statement of a material fact contained in any Registration Statement or
Prospectus (including any preliminary, final or summary prospectus and any amendment or supplement
thereto) related to any such registration or any omission or alleged omission to state
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a material fact required to be stated therein or necessary to make the statements therein not
misleading, , or any violation by the Company of the Securities Act or any rule or regulation
thereunder applicable to the Company and relating to action or inaction required of the Company in
connection with any such registration, or any qualification or compliance incident thereto;
provided, however, that the Company will not be liable in any such case to the
extent that any such Claims arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact or omission or alleged omission of a material fact so made in reliance
upon and in conformity with written information furnished to the Company in an instrument duly
executed by such Holder specifically stating that it was expressly for use therein. The Company
shall also indemnify any Underwriters of the Registrable Securities, their Agents and each Person
who controls any such Underwriter (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the Holders of Registrable Securities. Such
indemnity shall remain in full force and effect regardless of any investigation made by or on
behalf of any Person who may be entitled to indemnification pursuant to this Section 5 and shall
survive the transfer of securities by such Holder or Underwriter.
5.2 Indemnification by Holders. Each Holder, if Registrable Securities held by it are
included in the securities as to which a registration is being effected, agrees to, severally and
not jointly, indemnify and hold harmless, to the fullest extent permitted by law, the Company, its
directors and officers, each other Person who participates as an Underwriter in the offering or
sale of such securities and its Agents and each Person who controls the Company or any such
Underwriter (within the meaning of the Securities Act) and its Agents against any and all Claims,
insofar as such Claims arise out of or are based upon any untrue or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus (including any preliminary,
final or summary prospectus and any amendment or supplement thereto) related to such registration,
or 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, to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the Company in an instrument
duly executed by such Holder specifically stating that it was expressly for use therein;
provided, however, that the aggregate amount which any such Holder shall be
required to pay pursuant to this Section 5.2 shall in no event be greater than the amount of the
net proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the
Registration Statement giving rise to such Claims less all amounts previously paid by such Holder
with respect to any such Claims. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of such indemnified party and shall survive the transfer
of such securities by such Holder or Underwriter.
5.3 Conduct of Indemnification Proceedings. Promptly after receipt by an indemnified
party of notice of any Claim or the commencement of any action or proceeding involving a Claim
under this Section 5, such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party pursuant to Section 5, (i) notify the indemnifying party in writing
of the Claim or the commencement of such action or proceeding; provided, that the failure
of any indemnified party to provide such notice shall not relieve the indemnifying party of its
obligations under this Section 5, except to the extent the indemnifying party is materially and
actually prejudiced thereby and shall not relieve the indemnifying party from any liability which
it may have to any indemnified party otherwise than under this Section 5, and (ii)
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permit such indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that any indemnified
party shall have the right to employ separate counsel and to participate in the defense of such
claim, but the fees and expenses of such counsel shall be at the expense of such indemnified party
unless (A) the indemnifying party has agreed in writing to pay such fees and expenses, (B) the
indemnifying party shall have failed to assume the defense of such claim and employ counsel
reasonably satisfactory to such indemnified party within 10 days after receiving notice from such
indemnified party that the indemnified party believes it has failed to do so, (C) in the reasonable
judgment of any such indemnified party, based upon advice of counsel, a conflict of interest may
exist between such indemnified party and the indemnifying party with respect to such claims (in
which case, if the indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not
have the right to assume the defense of such claim on behalf of such indemnified party) or (D) such
indemnified party is a defendant in an action or proceeding which is also brought against the
indemnifying party and reasonably shall have concluded that there may be one or more legal defenses
available to such indemnified party which are not available to the indemnifying party. No
indemnifying party shall be liable for any settlement of any such claim or action effected without
its written consent, which consent shall not be unreasonably withheld. In addition, without the
consent of the indemnified party (which consent shall not be unreasonably withheld), no
indemnifying party shall be permitted to consent to entry of any judgment with respect to, or to
effect the settlement or compromise of any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified party
is an actual or potential party to such action or claim), unless such settlement, compromise or
judgment (1) includes an unconditional release of the indemnified party from all liability arising
out of such action or claim, (2) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party, and (3) does not provide
for any action on the part of any party other than the payment of money damages which is to be paid
in full by the indemnifying party.
5.4 Contribution. If the indemnification provided for in Section 5.1 or 5.2 from the
indemnifying party for any reason is unavailable to (other than by reason of exceptions provided
therein), or is insufficient to hold harmless, an indemnified party hereunder in respect of any
Claim, then the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result of such Claim in
such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the
one hand, and the indemnified party, on the other hand, in connection with the actions which
resulted in such Claim, as well as any other relevant equitable considerations. The relative fault
of such indemnifying party and indemnified party shall be determined by reference to, among other
things, whether any action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has been made by, or
relates to information supplied by, such indemnifying party or indemnified party, and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
action. If, however, the foregoing allocation is not permitted by applicable law, then each
indemnifying party shall contribute to the amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative faults but also the relative
benefits of the indemnifying party and the indemnified party as well as any other relevant
equitable considerations.
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The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 5.4 were determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by a party as a result of any Claim
referred to in the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth in Section 5.3, any legal or other fees, costs or expenses reasonably
incurred by such party in connection with any investigation or proceeding. Notwithstanding
anything in this Section 5.4 to the contrary, no indemnifying party (other than the Company) shall
be required pursuant to this Section 5.4 to contribute any amount in excess of the net proceeds
received by such indemnifying party from the sale of the Registrable Securities pursuant to the
Registration Statement giving rise to such Claims, less all amounts previously paid by such
indemnifying party with respect to such Claims. 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.
5.5 Other Indemnification. Indemnification similar to that specified in the preceding
Sections 5.1 and 5.2 (with appropriate modifications) shall be given by the Company and each
selling Holder of Registrable Securities with respect to any required registration or other
qualification of securities under any Federal or state law or regulation of any governmental
authority, other than the Securities Act. The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any indemnified party may
have pursuant to law or contract.
5.6 Indemnification Payments. The indemnification and contribution required by this
Section 5 shall be made by periodic payments of the amount thereof during the course of any
investigation or defense, as and when bills are received or any expense, loss, damage or liability
is incurred.
6. General.
6.1 Adjustments Affecting Registrable Securities. The Company agrees that it shall
not effect or permit to occur any combination or subdivision of shares which would adversely affect
the ability of the Holder of any Registrable Securities to include such Registrable Securities in
any registration contemplated by this Agreement or the marketability of such Registrable Securities
in any such registration.
6.2 Registration Rights to Others. If the Company shall at any time hereafter
provide to any holder of any securities of the Company rights with respect to the registration of
such securities under the Securities Act, (i) such rights shall not be in conflict with or
adversely affect any of the rights provided in this Agreement to the Holders and (ii) if such
rights are provided on terms or conditions more favorable to such holder than the terms and
conditions provided in this Agreement, the Company shall provide (by way of amendment to this
Agreement or otherwise) such more favorable terms or conditions to the Holders.
6.3 Availability of Information; Rule 144; Rule 144A; Other Exemptions. So long as
the Company shall not have filed a registration statement pursuant to Section 12 of the Exchange
Act or a registration statement pursuant to the requirements of the Securities Act, the Company
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shall, at any time and from time to time, upon the request of any Holder of Registrable
Securities and upon the request of any Person designated by such Holder as a prospective purchaser
of any Registrable Securities, furnish in writing to such Holder or such prospective purchaser, as
the case may be, a statement as of a date not earlier than 12 months prior to the date of such
request of the nature of the business of the Company and the products and services it offers and
copies of the Company’s most recent balance sheet and profit and loss and retained earnings
statements, together with similar financial statements for such part of the two preceding fiscal
years as the Company shall have been in operation, all such financial statements to be audited to
the extent audited statements are reasonable available, provided that, in any event the
most recent financial statements so furnished shall include a balance sheet as of a date less than
16 months prior to the date of such request, statements of profit and loss and retained earnings
for the 12 months preceding the date of such balance sheet, and, if such balance sheet is not as of
a date less than 6 months prior to the date of such request, additional statements of profit and
loss and retained earnings for the period from the date of such balance sheet to a date less than 6
months prior to the date of such request. If the Company shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a registration statement pursuant
to the requirements of the Securities Act, the Company covenants that it shall timely file any
reports required to be filed by it under the Securities Act or the Exchange Act (including, but not
limited to, the reports under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph
(c) of Rule 144 under the Securities Act), and that it shall take such further action as any Holder
of Registrable Securities may reasonably request, all to the extent required from time to time to
enable such Holder to sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (i) Rule 144 and Rule 144A under the Securities
Act, as such rules may be amended from time to time, or (ii) any other rule or regulation now
existing or hereafter adopted by the SEC. Upon the request of any Holder of Registrable
Securities, the Company shall deliver to such Holder a written statement as to whether it has
complied with such requirements.
6.4 Amendments and Waivers. The provisions of this Agreement may not be amended,
modified, supplemented or terminated, and waivers or consents to departures from the provisions
hereof may not be given, without the written consent of the Company and each of the Principal
Stockholder and the Minority Stockholder; provided, however, that no such
amendment, modification, supplement, waiver or consent to departure shall reduce the aforesaid
percentage of Registrable Securities without the written consent of all of the Holders of
Registrable Securities; and provided further, that nothing herein shall prohibit
any amendment, modification, supplement, termination, waiver or consent to departure the effect of
which is limited only to those Holders who have agreed to such amendment, modification, supplement,
termination, waiver or consent to departure.
6.5 Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand delivery, telecopier, any courier guaranteeing overnight delivery
or first class registered or certified mail, return receipt requested, postage prepaid, addressed
to the applicable party at the address set forth below or such other address as may hereafter be
designated in writing by such party to the other parties in accordance with the provisions of this
Section:
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| If to the Company, to: | ||||
| c/o LJH, LTD. | ||||
| 000 Xxxx Xxxx | ||||
| Xxxxxxx, XX 00000 | ||||
| Attn: Xxxx Xxxxxx | ||||
| Telecopy: (000) 000-0000 | ||||
| Telephone: (000) 000-0000 | ||||
| (i) | With a copy to: | |||
| Xxxxxxxxx & Xxxxxxxx LLP | ||||
| 000 X. Xxxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxxxxx, XX 00000 | ||||
| Attention: Xxxxxxx X. Xxxxxxxxxx | ||||
| Telecopy: (000) 000-0000 | ||||
| Telephone: (000) 000-0000 | ||||
| If to the Principal Stockholder, to: | ||||
| 000 Xxxx Xxxx | ||||
| Xxxxxxx, XX 00000 | ||||
| Attn: Xxxx Xxxxxx | ||||
| Telecopy: (000) 000-0000 | ||||
| Telephone: (000) 000-0000 | ||||
| (ii) | With a copy to: | |||
| Xxxxxxxxx & Xxxxxxxx LLP | ||||
| 000 X. Xxxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxxxxx, XX 00000 | ||||
| Attention: Xxxxxxx X. Xxxxxxxxxx | ||||
| Telecopy: (000) 000-0000 | ||||
| Telephone: (000) 000-0000 | ||||
| (iii) | If to the Minority Stockholder, to: | |||
| 000 Xxxxx Xxxxxx, 00xx Xxxxx | ||||
| Xxx Xxxx, XX 00000 | ||||
| Attn: Xxxxxx Xxxxxxx CFO | ||||
| Telecopy: (000) 000-0000 | ||||
| Telephone: (000) 000-0000 |
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| With a copy to: | ||||
| Xxxxxxx Xxxx & Xxxxx LLP | ||||
| 000 Xxxxx Xxxxxx | ||||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Attn: Xxxxx X. Xxxxxx | ||||
| Telecopy: (000) 000-0000 | ||||
| Telephone: (000) 000-0000 | ||||
| (iv) | If to any subsequent Holder, to the address of such Person set forth in the records of the Company. |
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; when receipt is acknowledged, if telecopied; on the
next business day, if timely delivered to a courier guaranteeing overnight delivery; and five days
after being deposited in the mail, if sent first class or certified mail, return receipt requested,
postage prepaid.
6.6 Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, successors and permitted assigns
(including any permitted transferee of Registrable Securities). Any Holder may assign to any
permitted (as determined under the Stockholders’ Agreement, among the parties hereto, dated the
date hereof (the “Stockholders’ Agreement”)) transferee of its Registrable Securities (other than a
transferee that acquires such Registrable Securities in a registered public offering or pursuant to
a sale under Rule 144 of the Securities Act (or any successor rule)), its rights and obligations
under this Agreement; provided, however, if any permitted transferee shall take and
hold Registrable Securities, such transferee shall promptly notify the Company and by taking and
holding such Registrable Securities such permitted transferee shall automatically be entitled to
receive the benefits of and be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Agreement as if it were a party hereto (and shall, for all
purposes, be deemed a Holder under this Agreement). If the Company shall so request, any heir,
successor or permitted assign (including any permitted transferee) shall agree in writing to
acquire and hold the Registrable Securities subject to all of the terms hereof. For purposes of
this Agreement, “successor” for any entity other than a natural person shall mean a successor to
such entity as a result of such entity’s merger, consolidation, sale of substantially all of its
assets, or similar transaction. Except as provided above or otherwise permitted by this Agreement,
neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by
reason hereof shall be assignable by any Holder or by the Company without the consent of the other
parties hereto.
6.7 Counterparts. This Agreement may be executed in two or more counterparts, each of
which, when so executed and delivered, shall be deemed to be an original, but all of which
counterparts, taken together, shall constitute one and the same instrument.
6.8 Descriptive Headings, Etc. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning of terms contained herein.
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Unless the context of this Agreement otherwise requires: (1) words of any gender shall be
deemed to include each other gender; (2) words using the singular or plural number shall also
include the plural or singular number, respectively; (3) the words “hereof”, “herein” and
“hereunder” and words of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and Section and paragraph
references are to the Sections and paragraphs of this Agreement unless otherwise specified; (4) the
word “including” and words of similar import when used in this Agreement shall mean “including,
without limitation,” unless otherwise specified; (5) “or” is not exclusive; and (6) provisions
apply to successive events and transactions.
6.9 Severability. In the event that any one or more of the provisions, paragraphs,
words, clauses, phrases or sentences contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the other remaining provisions, paragraphs, words, clauses,
phrases or sentences hereof shall not be in any way impaired, it being intended that all rights,
powers and privileges of the parties hereto shall be enforceable to the fullest extent permitted by
law.
6.10 Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
6.11 Remedies; Specific Performance. The parties hereto acknowledge that money
damages would not be an adequate remedy at law if any party fails to perform in any material
respect any of its obligations hereunder, and accordingly agree that each party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled to seek to compel
specific performance of the obligations of any other party under this Agreement, without the
posting of any bond, in accordance with the terms and conditions of this Agreement in any court of
the United States or any State thereof having jurisdiction, and if any action should be brought in
equity to enforce any of the provisions of this Agreement, none of the parties hereto shall raise
the defense that there is an adequate remedy at law. Except as otherwise provided by law, a delay
or omission by a party hereto in exercising any right or remedy accruing upon any such breach shall
not impair the right or remedy or constitute a waiver of or acquiescence in any such breach. No
remedy shall be exclusive of any other remedy. All available remedies shall be cumulative.
6.12 Entire Agreement. This Agreement, the Stockholders’ Agreement and the
Transaction Agreement (collectively, the “Other Agreements”) are intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, representations, warranties, covenants or
undertakings relating to such subject matter, other than those set forth or referred to herein or
in the Other Agreements. This Agreement and the Other Agreements supersede all prior agreements
and understandings between the Company and the other parties to this Agreement with respect to such
subject matter.
6.13 Nominees for Beneficial Owners. In the event that any Registrable Securities are
held by a nominee for the beneficial owner thereof, the beneficial owner thereof may, at its
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election in writing delivered to the Company, be treated as the holder of such Registrable
Securities for purposes of any request or other action by any holder or holders of Registrable
Securities pursuant to this Agreement or any determination of any number or percentage of shares of
Registrable Securities held by any holder or holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so elects, the Company may
require assurances reasonably satisfactory to it of such owner’s beneficial ownership of such
Registrable Securities.
6.14 Consent to Jurisdiction. Each party to this Agreement hereby irrevocably and
unconditionally agrees that any legal action, suit or proceeding arising out of or relating to this
Agreement or any agreements or transactions contemplated hereby may be brought in any federal court
of the Southern District of New York or any state court located in New York County, State of New
York, and hereby irrevocably and unconditionally expressly submits to the personal jurisdiction and
venue of such courts for the purposes thereof and hereby irrevocably and unconditionally waives any
claim (by way of motion, as a defense or otherwise) of improper venue, that it is not subject
personally to the jurisdiction of such court, that such courts are an inconvenient forum or that
this Agreement or the subject matter may not be enforced in or by such court. Each party hereby
irrevocably and unconditionally consents to the service of process of any of the aforementioned
courts in any such action, suit or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the address set forth or provided for in Section 6.5 of this
Agreement, such service to become effective 10 days after such mailing. Nothing herein contained
shall be deemed to affect the right of any party to serve process in any manner permitted by law or
commence legal proceedings or otherwise proceed against any other party in any other jurisdiction
to enforce judgments obtained in any action, suit or proceeding brought pursuant to this Section.
6.15 Further Assurances. Each party hereto shall do and perform or cause to be done
and performed all such further acts and things and shall execute and deliver all such other
agreements, certificates, instruments and documents as any other party hereto reasonably may
request in order to carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
6.16 No Inconsistent Agreements. The Company will not hereafter enter into any
agreement which is inconsistent with the rights granted to the Holders in this Agreement.
6.17 Construction. The Company and the Initial Holders acknowledge that each of them
has had the benefit of legal counsel of its own choice and has been afforded an opportunity to
review this Agreement with its legal counsel and that this Agreement shall be construed as if
jointly drafted by the Company and the Holders.
6.18 Costs and Attorney’s Fees. In the event that any action, suit or other
proceeding is instituted concerning or arising out of this Agreement, the prevailing party shall
recover from the non-prevailing party all of such prevailing party’s costs and reasonable
attorneys’ fees incurred in each and every such action, suit or other proceeding, including any and
all appeals or petitions therefrom.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first written above.
| STOCKHOLDERS | ||||||
| LJH, LTD. | ||||||
| By: |
||||||
| Name: | Xxxx Xxxxxx | |||||
| Title: | ||||||
| OWL CREEK I L.P. | ||||||
By: Owl creek Advisors, LLC its General Partner |
||||||
| By: |
||||||
| Name: | Xxxxxxx Xxxxxx | |||||
| Title: | Managing Member | |||||
| OWL CREEK II L.P. | ||||||
By: Owl creek Advisors, LLC its General Partner |
||||||
| By: |
||||||
| Name: | Xxxxxxx Xxxxxx | |||||
| Title: | Managing Member | |||||
| OWL CREEK OVERSEAS FUND LTD. | ||||||
| By: |
||||||
| Name: | Xxxxxxx Xxxxxx | |||||
| Title: | Director | |||||
| OWL CREEK OVERSEAS FUND II, LTD. | ||||||
| By: |
||||||
| Name: | Xxxxxxx Xxxxxx | |||||
| Title: | Director | |||||
| THE COMPANY | ||||||
| TAS HOLDING, INC. | ||||||
| By: |
||||||
| Name: | ||||||
| Title: | ||||||
- 27 -
- 28 -
