Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT, dated as of November 24, 1998, by and
among HARVARD INDUSTRIES, INC., a Delaware corporation (the "Company"), and the
parties listed on Annex A hereto (the "Initial Holders").
This Agreement is being entered into pursuant to Article 7.5 of the
Debtors' Consolidated Plan under Chapter 11 of the Bankruptcy Code filed with
the United States Bankruptcy Court for the District of Delaware by the Debtors
and the Official Committee of Unsecured Creditors as co-proponents on July 10,
1998 (the "Plan of Reorganization"). The Plan of Reorganization provides for
the issuance of New Common Stock (as hereinafter defined).
The parties hereto desire to provide certain registration rights to
the Initial Holders with respect to the shares of New Common Stock.
Accordingly, the parties hereto agree as follows:
1. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"Blackout Period" shall mean a period commencing on the date on which
the Company provides notice that: (i) the Shelf Registration is no longer
effective; (ii) the prospectus included in the Shelf Registration no longer
complies with the requirements therefor prescribed by Section 10(a) of the
Securities Act; or (iii) subject to Section 2.1(b), there is a Material
Disclosure Event and the Board of Directors of the Company has elected (in its
good faith reasonable judgment) to require the suspension of the sale by the
Holder of Registrable New Common Stock pursuant to the Shelf Registration, and
shall end on the date when the Holder either receives copies of the
supplemented or amended prospectus contemplated by Section 2.4(g) or such
earlier time that the Holder is otherwise advised in writing by the Company
that use of the prospectus may be resumed.
"Commission" means the Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Exchange Act shall include a reference to the
comparable section, if any, of any such similar Federal statute.
"Holder" means a registered holder of Registrable New
Common Stock.
"Initial Holders" has the meaning assigned to it in the
preamble hereof.
"Material Disclosure Event" means any pending or imminent event
relating to the Company which, based on the good faith, reasonable opinion of
the Board of Directors of the Company and the advice of competent outside
counsel to the Board of Directors of the Company, (i) requires disclosure of
material, non-public information relating to such event in the Shelf
Registration Statement so that such registration statement would not be
materially misleading, (ii) is otherwise not required to be publicly disclosed
at the time (e.g., on a Form 8-K or Form 10- Q) under applicable federal or
state securities laws, and (iii) if publicly disclosed at the time of such
event, would have a material adverse effect on the business and financial
condition of the Company.
"New Common Stock" means any shares of common stock, par value $.01
per share, of the Company now or hereafter authorized to be issued, and any and
all securities of any kind whatsoever of the Company which may be issued on or
after the date hereof in respect of, or in exchange for, shares of New Common
Stock pursuant to a merger, consolidation, stock split, stock dividend,
recapitalization of the Company or otherwise.
"Person" means a corporation, an association, a partnership, an
organization, a business, a trust, an individual, or any other entity or
organization, including a government or political subdivision or an
instrumentality or agency thereof.
"Registrable New Common Stock" means (i) the shares of New Common
Stock issued by the Company to an Initial Holder pursuant to the Plan of
Reorganization or (ii) any New Common Stock issued with respect to the New
Common Stock referred to in clause (i) hereof by way of a stock dividend, stock
split or reverse stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or otherwise. As to any particular
Registrable New Common Stock, such securities shall cease to be Registrable New
Common Stock when (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement, (ii) they shall have been distributed to the public pursuant to Rule
144 (or any successor provision) under the Securities Act, (iii) they shall
have been otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require the registration under the
Securities Act, or (iv) they shall have ceased to be outstanding.
"Registration Expenses" means all expenses incident to the
registration and disposition of the Registrable New Common Stock pursuant to
Section 2 hereof, including, without limitation, all registration, filing and
applicable national securities exchange fees; all fees and expenses of
complying with state securities or blue sky laws (including fees and
disbursements of counsel to the underwriters or the Holders in connection with
"blue sky" qualification of the Registrable New Common Stock and determination
of their eligibility for investment under the laws of the various
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jurisdictions); all duplicating and printing expenses; all messenger and
delivery expenses; the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of "cold comfort"
letters or, in connection with a registration pursuant to Section 2.3 hereof
only, any special audits required by, or incident to, such registration; all
fees and disbursements of underwriters (other than underwriting discounts and
commissions); all transfer taxes; and the reasonable fees and expenses of one
counsel to the Holders; provided, however, that Registration Expenses shall
exclude and the Holders shall pay underwriting discounts and commissions in
respect of the Registrable New Common Stock being registered.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. References to a
particular section of the Securities Act shall include a reference to the
comparable section, if any, of any such similar Federal statute.
2. Shelf Registration; Registration Under Securities Act, etc.
2.1 Shelf Registration. (a) Within fifteen days following the date
hereof, the Company shall file with the Commission, at the Company's expense, a
"shelf" registration statement on an appropriate form pursuant to Rule 415
under the Act covering all Registrable New Common Stock (the "Shelf
Registration"). The Company shall use its best efforts to have the Shelf
Registration declared effective as promptly as practicable after such filing
(but not later than 75 days after the date hereof) and to keep the Shelf
Registration continuously effective three years following the date on which the
Shelf Registration is declared effective (subject to Blackout Periods) (the
"Shelf Registration Period"). The Company shall, to the extent necessary,
supplement or amend the Shelf Registration (in each case, at the Company's
expense) to keep the Shelf Registration effective during the Shelf Registration
Period. The Company further agrees to supplement or amend any Shelf
Registration, as required by the registration form utilized by the Company, by
the instructions applicable to such registration form or by the Securities Act
or the rules and regulations thereunder or as reasonably requested by any
Holder. The Company shall furnish to the Holders copies, in substantially the
form proposed to be used and/or filed, of any such supplement or amendment at
least 30 days prior to its being used and/or filed with the Commission. The
Company hereby consents to the use (in compliance with applicable law) of the
prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable New Common Stock in connection with the offering and
sale of the Registrable New Common Stock covered by the prospectus or any
amendment or supplement thereto. The Company shall pay all Registration
Expenses incurred in connection with the Shelf Registration, whether or not it
becomes effective. In no event shall the Shelf Registration include securities
other than Registrable New Common Stock, unless the Holders of all Registrable
New Common Stock consent to such inclusion. Nothing herein shall obligate the
Company to incur or
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pay for fees and disbursements of underwriters in connection with a
distribution under the Shelf Registration.
(b) The Holder agrees that it will not sell any Registrable New
Common Stock pursuant to the Shelf Registration during any Blackout Period. The
Company agrees (i) that the Company will use its best efforts to ensure that
there is not more than one Blackout Period in any 12-month period, (ii) to
cause each Blackout Period to end as soon as reasonably practicable and (iii)
that no Blackout Period shall exceed 30 consecutive days. The Company further
agrees that no other holder of any shares of the Company's capital stock will
be permitted to sell any such shares of the Company's capital stock pursuant to
a registration statement during a Blackout Period. If one or more Blackout
Periods occur, the Shelf Registration Period shall be extended by such number
of days coincident with the aggregate number of days included in all Blackout
Periods.
2.2 Registration on Request.
(a) Request. Subject to the provisions of Section 2.2(h)
below, (i) if the Shelf Registration remains continuously effective during the
Shelf Registration Period in accordance with the terms hereof, at any time or
from time to time after the expiration of the Shelf Registration Period and
until the fifth anniversary hereof, or (ii) if for any reason the Shelf
Registration does not become effective within 75 days after the date hereof or
ceases to be effective at any time prior to the expiration of the Shelf
Registration Period, at any time or from time to time after the date which is
75 days from the date hereof (if the Shelf Registration fails to become
effective) or the date on which the Shelf Registration ceases to be effective,
as the case may be, and until the fifth anniversary hereof, the Holders,
individually and jointly, of more than 10% of issued and outstanding shares of
New Common Stock (the "Initiating Holders") shall have the right to require the
Company to effect the registration under the Securities Act of all or part of
the Registrable New Common Stock held by such Initiating Holders, by delivering
a written request therefor to the Company specifying the number of shares of
Registrable New Common Stock and the intended method of distribution. The
Company shall promptly give written notice of such requested registration to
all other Holders, and thereupon the Company shall, as expeditiously as
possible, use its best efforts to (A) effect the registration under the
Securities Act (including by means of a shelf registration pursuant to Rule 415
under the Securities Act if so requested in such request and if the Company is
then eligible to use such a registration) of the Registrable New Common Stock
which the Company has been so requested to register by the Initiating Holders,
and all other Registrable New Common Stock which the Company has been requested
to register by any other Holder (together with the Initiating Holders, the
"Selling Holders") by written request given to the Company within 10 days after
the giving of written notice by the Company, all to the extent necessary to
permit distribution in accordance with the intended method of distribution set
forth in the written request or requests delivered by the Selling Holders, and
(B) if requested by the Initiating Holders,
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obtain acceleration of the effective date of the registration statement
relating to such registration.
(b) Registration of Other Securities. Whenever the Company
shall effect a registration pursuant to this Section 2.2, no securities (other
than Registrable New Common Stock) shall be included among the securities
covered by such registration (i) if, in connection with an underwritten
offering by any Selling Holders of Registrable New Common Stock, the managing
underwriter of such offering shall have advised the Company and the Selling
Holders in writing that the inclusion of such other securities would adversely
affect such offering or (ii) if such offering is not an underwritten offering,
unless the Selling Holders of not less than 66 2/3% of the Registrable New
Common Stock to be covered by such registration shall have consented in writing
to the inclusion of such other securities.
(c) Registration Statement Form. Registrations under this
Section 2.2 shall be on such appropriate registration form of the Commission as
shall be selected by the Company and as shall be reasonably acceptable to the
Selling Holders. The Company agrees to include in any such registration
statement all information which, in the opinion of counsel to the Selling
Holders and counsel to the Company, is required to be included.
(d) Expenses. The Company shall pay all Registration
Expenses in connection with any registration requested pursuant to this
Section 2.2.
(e) Effective Registration Statement. A registration
requested pursuant to this Section 2.2 shall not be deemed to have been
effected (including for purposes of paragraph (h) of this Section 2.2) (i)
unless a registration statement with respect thereto has become effective and
has been kept continuously effective for a period of at least 120 days (or such
shorter period which shall terminate when all the Registrable New Common Stock
covered by such registration statement have been sold pursuant thereto), (ii)
if after it has become effective, such registration is interfered with by any
stop order, injunction or other order or requirement of the Commission or other
governmental agency or court for any reason not attributable to the Selling
Holders and has not thereafter become effective, or (iii) if the conditions to
closing specified in the underwriting agreement, if any, entered into in
connection with such registration are not satisfied for any reason not
attributable to the Selling Holders or waived.
(f) Selection of Underwriters. The underwriters of each
underwritten offering of the Registrable New Common Stock to be registered
shall be selected by the Selling Holders and shall be reasonably satisfactory
to the Company.
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(g) Priority in Requested Registration. If the managing
underwriter of any underwritten offering shall advise the Company in writing
(with a copy to each Selling Holder) that, in its opinion, the number of shares
of Registrable New Common Stock requested to be included in such registration
exceeds the number of shares which can be sold in such offering within a price
range acceptable to the Initiating Holders of Registrable New Common Stock, the
Company will include in such registration that number of shares of Registrable
New Common Stock which the Company is so advised can be sold in such offering.
The Registrable New Common Stock requested to be included in such registration
shall be reduced first, pro rata among those Selling Holders that were not
Initiating Holders on the basis of the percentage of Registrable New Common
Stock of such Selling Holder requesting such registration and, thereafter, pro
rata among the Initiating Holders that requested such registration of
Registrable New Common Stock on the basis of the percentage of Registrable New
Common Stock of such Selling Holders requesting such registration. In
connection with any such registration to which this Section 2.2(g) is
applicable, no securities other than Registrable New Common Stock shall be
covered by such registration.
(h) Limitations on Registration on Request. Notwithstanding
anything to the contrary contained herein, the registration rights granted to
the Holders in Section 2.2(a) are subject to the following limitations: (i) the
Holders shall be entitled to require the Company to, and the Company shall be
required to, effect no more than two registrations pursuant to Section
2.2(a)(i) hereof and no more than four registrations pursuant to Section
2.2(a)(ii) hereof, (ii) the Company shall not be required to effect a
registration pursuant to Section 2.2(a) if, with respect thereto, the managing
underwriter, the Commission, the Securities Act or the rules and regulations
thereunder, or the form on which the registration statement is to be filed,
would require the conduct of an audit other than the regular audit conducted by
the Company at the end of its fiscal year, but rather the filing may be delayed
until the completion of such regular audit (unless the Holders requesting such
registration agree to pay the fees and expenses of the Company in connection
with such an audit other than the regular audit) and (iii) the Holders shall
not be entitled to require the Company to, and the Company shall not be
required to, effect a registration pursuant to Section 2.2(a) within three (3)
months following the effective date of another registration pursuant to Section
2.2(a).
(i) Postponement. The Company shall be entitled once in any
12-month period to postpone for a reasonable period of time (but not exceeding
45 days) (the "Postponement Period") the filing of any registration statement
required to be prepared and filed by it pursuant to this Section 2.2 if the
Company determines, in its reasonable judgment, that such registration and
offering would materially interfere with any material financing, corporate
reorganization or other material transaction involving the Company or any
subsidiary, or would require premature disclosure thereof, and promptly gives
the Selling Holders written notice of such determination, containing a
general statement of the reasons for such postponement and an approximation of
the
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anticipated delay. If the Company shall so postpone the filing of a
registration statement, the Selling Holders of a majority of the shares of
Registrable New Common Stock to be registered shall have the right to withdraw
the request for registration in respect of the Registrable New Common Stock by
giving written notice to the Company at any time and, in the event of any such
withdrawal, such request shall not be counted for purposes of the requests for
registration to which the Holders are entitled pursuant to this Section 2.2.
2.3 Incidental Registration.
(a) Right to Include Registrable New Common Stock. If the
Company at any time prior to the expiration of the Holders' right to request
the registration of Registrable New Common Stock pursuant to Section 2.2(a)
hereof proposes to register any of its securities under the Securities Act by
registration on Form X-0, X-0 or S-3 or any successor or similar form(s)
(except registrations on such Form or similar form(s) solely for registration
of securities in connection with an employee stock option, stock purchase,
stock bonus or similar plan, pursuant to a dividend reinvestment plan, pursuant
to a merger, exchange, offer or transaction of the type specified in Rule
145(a) under the Securities Act or pursuant to a "shelf" registration), whether
or not for sale for its own account, it will each such time give prompt written
notice to the Holders of its intention to do so and of the Holders' rights
under this Section 2.3 and the Holders shall be entitled to include, subject to
the provisions of this Agreement, Registrable New Common Stock on the same
terms and conditions (if any) as apply to other comparable securities of the
Company sold in connection with such registration. Upon the written request of
any Holder (a "Requesting Holder"), specifying the maximum number of shares of
Registrable New Common Stock intended to be disposed of by such Requesting
Holder, made as promptly as practicable and in any event within 15 days after
the receipt of any such notice, the Company shall use its best efforts to
effect the registration under the Securities Act of all Registrable New Common
Stock which the Company has been so requested to register by the Requesting
Holders; provided, however, that if, at any time after giving written notice of
its intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register or to delay registration of such
securities, the Company shall give written notice of such determination and its
reasons therefor to the Holders and (i) in the case of a determination not to
register, shall be relieved of its obligation under this Section 2.3 to
register any Registrable New Common Stock in connection with such registration
(but not from any obligation of the Company to pay the Registration Expenses in
connection therewith), without prejudice, however, to the rights of the Holders
to request that such registration be effected as a registration under Section
2.2, and (ii) in the case of a determination to delay registering, shall be
permitted to delay registering any Registrable New Common Stock, for the same
period as the delay in registering such other securities. No registration
effected under this Section 2.3 shall
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relieve the Company of its obligation to effect any registration upon request
under Section 2.2. The Company will pay all Registration Expenses in connection
with any registration of Registrable New Common Stock requested pursuant to
this Section 2.3.
(b) Right to Withdraw. Any Requesting Holder shall have the
right to withdraw its request for inclusion of Registrable New Common Stock in
any registration statement pursuant to this Section 2.3 at any time by giving
written notice to the Company of its request to withdraw.
(c) Priority in Incidental Registrations. If the managing
underwriter of any underwritten offering shall inform the Company by letter of
its opinion that the number of shares of Registrable New Common Stock when
added to the number of other securities to be offered in such registration,
would materially adversely affect such offering, then the Company shall include
in such registration that number of shares of Registrable New Common Stock
which the Company is so advised by the managing underwriter can be sold in (or
during the time of) such offering without materially adversely affecting such
offering (the "Section 2.3 Common Stock Sale Amount") in the following order of
priority: (i) all of the securities proposed by the Company to be sold for its
own account (if any); (ii) thereafter, to the extent the Section 2.3 Common
Stock Sale Amount is not exceeded in clause (i), the Registrable New Common
Stock requested by the Requesting Holders to be included in such registration
pursuant to Section 2.3(a) pro rata among the Requesting Holders on the basis
of the percentage of Registrable New Common Stock of such Requesting Holders
requested to be included in such registration; and (iii) thereafter, to the
extent the Section 2.3 Common Stock Sale Amount is not exceeded, any other
securities of the Company requested to be included in such registration.
(d) Plan of Distribution. Any participation by the Holders
in a registration by the Company shall be in accordance with the Company's plan
of distribution.
2.4 Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
New Common Stock under the Securities Act as provided in Sections 2.1, 2.2 and
2.3 hereof, the Company shall as expeditiously as possible:
(a) prepare and file with the Commission as soon as practicable
the requisite registration statement to effect such registration (and
shall include all financial statements required by the Commission to
be filed therewith) and thereafter use its best efforts to cause such
registration statement to become effective; provided, however, that
before filing such registration statement (including all exhibits) or
any amendment or supplement thereto or comparable statements under
securities or blue sky laws of any
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jurisdiction, the Company shall furnish such documents to each
Holder selling Registrable New Common Stock covered by such
registration statement and each underwriter, if any, participating in
the offering of the Registrable New Common Stock and their respective
counsel, which documents will be subject to the review and comments
of each such Holder, each underwriter and their respective counsel;
and provided further, that (i) as to registration pursuant to Section
2.1 or 2.2 hereof, the Company may discontinue any registration of
its securities which are not Registrable New Common Stock and, (ii)
as to registration pursuant to Section 2.3 hereof, the Company may
discontinue any registration of securities covered thereby, in each
case, at any time prior to the effective date of the registration
statement relating thereto;
(b) notify each Holder selling Registrable New Common Stock
covered by such registration statement of the Commission's requests
for amending or supplementing the registration statement and the
prospectus, and prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of
the Securities Act with respect to the disposition of all Registrable
New Common Stock covered by such registration statement for such
period as shall be required for the disposition of all of such
Registrable New Common Stock in accordance with the intended method
of distribution thereof; provided that, except with respect to the
Shelf Registration and any other such registration statement filed
pursuant to Rule 415 under the Securities Act, such period need not
exceed 120 days;
(c) furnish, without charge, to each Holder selling Registrable
New Common Stock covered by such registration statement and each
underwriter such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each
case including all exhibits), such number of copies of the prospectus
contained in such registration statement (including each preliminary
prospectus and any summary prospectus) and any other prospectus filed
under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, as such
Holders and such underwriters may reasonably request;
(d) use its best efforts (i) to register or qualify all
Registrable New Common Stock and other securities covered by such
registration statement under such securities or blue sky laws of such
States of the United States of America where an exemption is not
available and as any Holder or Holders
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selling Registrable New Common Stock covered by such registration
statement or any managing underwriter shall reasonably request, (ii)
to keep such registration or qualification in effect for so long as
such registration statement remains in effect, and (iii) to take any
other action which may be reasonably necessary or advisable to enable
the Holders to consummate the disposition in such jurisdictions of
the securities to be sold by such Holder or Holders; provided,
however, that the Company shall not for any purpose be required to
execute a general consent to service of process or to qualify to do
business as a foreign corporation in any jurisdiction where it is not
so qualified;
(e) use its best efforts to cause all Registrable New Common
Stock covered by such registration statement to be registered with or
approved by such other Federal or state governmental agencies or
authorities as may be necessary in the opinion of counsel to the
Company and counsel to any Holder or Holders selling Registrable New
Common Stock covered by such registration statement to consummate the
disposition of such Registrable New Common Stock;
(f) furnish to each Holder selling Registrable New Common Stock
covered by such registration statement and each underwriter, if any,
participating in the offering of the securities covered by such
registration statement, a signed counterpart of
(i) an opinion of counsel for the Company, and
(ii) a "comfort" letter signed by the independent public
accountants who have certified the Company's financial
statements included or incorporated by reference in such
registration statement,
covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in
the case of the accountants' comfort letter, with respect to events
subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer's counsel and in
accountants' comfort letters delivered to the underwriters in
underwritten public offerings of securities (and dated the dates such
opinions and comfort letters are customarily dated) and, in the case
of the legal opinion, such other legal matters, and, in the case of
the accountants' comfort letter, such other financial matters, as
such Holder or Holders, or the underwriters, may reasonably request;
(g) immediately notify the Holders selling Registrable New
Common Stock covered by such registration statement and each managing
underwriter, if any, participating in the offering of the securities
covered by
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such registration statement (i) when such registration statement, any
pre-effective amendment, the prospectus or any prospectus supplement
related thereto or post-effective amendment to such registration
statement has been filed, and, with respect to such registration
statement or any post-effective amendment, when the same has become
effective; (ii) of any request by the Commission for amendments or
supplements to such registration statement or the prospectus related
thereto or for additional information; (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation of any proceedings for that
purpose; (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of any of the
Registrable New Common Stock for sale under the securities or blue
sky laws of any jurisdiction or the initiation of any proceeding for
such purpose; and (v) at any time when a prospectus relating thereto
is required to be delivered under the Securities Act or, in the case
of the Shelf Registration, at any time during the Shelf Registration
Period, upon discovery that, or upon the happening of any event as a
result of which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, in the light of the circumstances under which they were
made, and in the case of this clause (v), at the request of any
Holder or Holders selling Registrable New Common Stock covered by
such registration statement promptly prepare and furnish to such
Holder or Holders and each managing underwriter, if any,
participating in the offering of the Registrable New Common Stock, a
reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered
to the purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances
under which they were made.
(h) otherwise comply with all applicable rules and regulations
of the Commission, and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the
period of at least twelve months beginning with the first full
calendar month after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder, and promptly furnish to the Holders a copy of any
amendment or supplement to such registration statement or prospectus;
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(i) cause to be maintained a transfer agent and registrar
(which, in each case, may be the Company) for the New Common Stock
from and after the date of such registration;
(j) use its best efforts to cause all Registrable New Common
Stock covered by such registration statement to be quoted on the
National Market System ("National Market System") of the National
Association of Securities Dealers, Inc. Automated Quotation System
("NASDAQ") within the meaning of Rule 11Aa2-1 of the Commission if
the quoting of such Registrable New Common Stock is then permitted
under NASDAQ rules; or (ii) if no similar securities of the Company
are then so quoted, use its bests efforts to (x) secure designation
of all such Registrable New Common Stock as a NASDAQ National Market
System security or (y) failing that, cause all such Registrable New
Common Stock to be listed on a national securities exchange or (z)
failing that, to secure NASDAQ authorization for such shares and,
without limiting the generality of the foregoing, to arrange for at
least two market makers to register as such with respect to such
shares with the National Association of Securities Dealers, Inc.;
(k) deliver promptly to counsel to the Holders selling
Registrable New Common Stock covered by such registration statement
and each underwriter, if any, participating in the offering of the
Registrable New Common Stock, copies of all correspondence between
the Commission and the Company, its counsel or auditors and all
memoranda relating to discussions with the Commission or its staff
with respect to such registration statement;
(l) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of the registration statement;
(m) provide a CUSIP number for all Registrable New Common Stock,
no later than the effective date of the registration statement;
(n) make available its employees and personnel and otherwise
provide reasonable assistance to the underwriters (taking into
account the needs of the Company's businesses) in their marketing of
Registrable New Common Stock; and
(o) in the case of a Shelf Registration, upon the occurrence of
any event or the discovery of any facts, each as contemplated by
Section 2.4(g)(v) hereof, use its best efforts to prepare a
supplement or post-effective amendment to the registration statement
or the related prospectus or any document incorporated therein by
reference or file any other required documents so that, thereafter,
such prospectus will not contain at
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the time of such delivery any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
The Company may require the Holders selling Registrable New Common Stock
covered by such registration statement to furnish the Company such information
regarding the Holders and the distribution of the Registrable New Common Stock
as the Company may from time to time reasonably request in writing. In the
event of a registration effected pursuant to Section 2.1, 2.2(a) or 2.3(a)
hereof, if a Holder fails to provide such information and the failure by such
Holder to furnish such information would prevent or unreasonably delay the
registration statement relating to such registration from being declared
effective by the Commission, the Company may exclude such Holder's Registrable
New Common Stock from such registration, which right of the Company shall, in
the case of a registration effected pursuant to Section 2.1 or 2.2(a) hereof,
be subject to the consent of the Holders of not less than a majority of the
shares of Registrable New Common Stock to be included in such registration
(other than such Holder's Registrable New Common Stock).
The Holders agree that upon receipt of any notice from the Company of
the happening of any event of the kind described in paragraph (g)(iii) or (v)
of this Section 2.4, each of the Holders will discontinue its disposition of
Registrable New Common Stock pursuant to the registration statement relating to
such Registrable New Common Stock until, in the case of paragraph (g)(v) of
this Section 2.4, its receipt of the copies of the supplemented or amended
prospectus contemplated by paragraph (g)(v) of this Section 2.4 and, if so
directed by the Company, will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in its possession, of the
prospectus relating to such Registrable New Common Stock current at the time of
receipt of such notice. If the disposition by the Holders of their securities
is discontinued pursuant to the immediately preceding sentence, the Company
shall extend the period of effectiveness of the registration statement by the
number of days during the period from and including the date of the giving of
notice to and including the date when the Holders shall have received copies of
the supplemented or amended prospectus contemplated by paragraph (g)(v) of this
Section 2.4; and, if the Company shall not so extend such period, the Holders'
request pursuant to which such registration statement was filed shall not be
counted for purposes of the requests for registration to which the Holders are
entitled pursuant to Section 2.2 hereof.
2.5 Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by the Selling Holders pursuant to a
registration requested under Section 2.1 or 2.2, the Company shall enter into a
customary underwriting agreement with such underwriter or underwriters. Such
underwriting
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agreement shall be reasonably satisfactory in form and substance to the Selling
Holders and shall contain such representations and warranties by, and such
other agreements on the part of, the Company and such other terms as are
generally prevailing in agreements of that type, including, without limitation,
such customary provisions relating to indemnification and contribution by the
Company. The Selling Holders shall be parties to such underwriting agreement
and may, at their option, require that any or all of the representations and
warranties by, and the 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
the Selling Holders 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 the Selling Holders. No Selling
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 Selling Holder, its ownership of and
title to the Registrable New Common Stock, and its intended method of
distribution; and any liability of any Selling Holder to any underwriter or
other Person under such underwriting agreement shall be limited to liability
arising from misstatements in or omissions from its representations and
warranties and shall be limited to an amount equal to the net proceeds that it
derives from such registration.
(b) Incidental Underwritten Offerings. In the case of a
registration pursuant to Section 2.3 hereof, if the Company shall have
determined to enter into any underwriting agreements in connection therewith,
all of the Requesting Holders' Registrable New Common Stock to be included in
such registration shall be subject to such underwriting agreements. The
Requesting Holders may, at their 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 the Requesting Holders 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 the Requesting Holders.
No Requesting 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 Requesting Holder, its
ownership of and title to the Registrable New Common Stock, and its intended
method of distribution; and any liability of any Requesting Holder to any
underwriter or other Person under such underwriting agreement shall be limited
to liability arising from misstatements in or omissions from its
representations and warranties and shall be limited to an amount equal to the
net proceeds that it derives from such registration.
2.6 Preparation; Reasonable Investigation.
In connection with the preparation and filing of each
registration statement under the Securities Act pursuant to this Agreement, the
Company will give the participating Holders, their underwriters, if any, and
their respective counsel, accountants and other representatives and agents the
opportunity to participate in the preparation of such registration statement,
each
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prospectus included therein or filed with the Commission, and, to the extent
practicable, each amendment thereof or supplement thereto, and give each of
them such access to its books and records and such opportunities to discuss the
business of the Company with its officers and employees and the independent
public accountants who have certified its financial statements, and supply all
other information reasonably requested by each of them, as shall be necessary
or appropriate, in the opinion of the participating Holders' and such
underwriters' respective counsel, to conduct a reasonable investigation within
the meaning of the Securities Act.
2.7 Indemnification.
(a) Indemnification by the Company. The Company agrees that
in the event of any registration of any securities of the Company under the
Securities Act pursuant to this Agreement, the Company shall, and hereby does,
indemnify and hold harmless each Holder, its respective directors, officers,
partners, members, agents and affiliates and each other Person who participates
as an underwriter in the offering or sale of such securities and each other
Person, if any, who controls such Holder or any such underwriter within the
meaning of the Securities Act, against any losses, claims, damages, or
liabilities, joint or several, to which such Holder or any such director,
officer, partner, member, agent or affiliate or underwriter or controlling
Person may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities, joint or several (or actions or
proceedings, whether commenced or threatened, in respect thereof), arise out of
or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, (ii) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances in which they were made not
misleading, or (iii) any violation by the Company of any Federal, state or
common law rule or regulation applicable to the Company or relating to action
required of or inaction by the Company in connection with any such
registration, and the Company shall reimburse such Holder and each such
director, officer, partner, member, agent or affiliate, underwriter and
controlling Person for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement in reliance upon
and in conformity with written information furnished to the Company through an
instrument duly executed by or on behalf of the Holders or underwriter, as the
case may be, specifically stating that it is for use in the preparation thereof;
and provided, further, that
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the Company shall not be liable to any Person who participates as an
underwriter in the offering or sale of Registrable New Common Stock or any
other Person, if any, who controls such underwriter within the meaning of the
Securities Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense
arises out of such Person's failure to send or give a copy of the final
prospectus, as the same may be then supplemented or amended, to the Person
asserting an untrue statement or alleged untrue statement or omission or
alleged omission at or prior to the written confirmation of the sale of
Registrable New Common Stock to such Person if such statement or omission was
corrected in such final prospectus. Such indemnity shall remain in full force
regardless of any investigation made by or on behalf of either Holder or any
such director, officer, partner, agent or affiliate or controlling Person and
shall survive the transfer of such securities by such Holder.
(b) Indemnification by the Holders. As a condition to
including any Registrable New Common Stock in any registration statement, the
Company shall have received an undertaking reasonably satisfactory to it from
each Holder so including any Registrable New Common Stock to indemnify and hold
harmless (in the same manner and to the same extent as set forth in paragraph
(a) of this Section 2.7) the Company, and each director of the Company, each
officer of the Company and each other Person, if any, who controls the Company
within the meaning of the Securities Act, with respect to any statement or
alleged statement in or omission or alleged omission from such registration
statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, but only to the
extent such statement or alleged statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company through an instrument duly executed by such Holder specifically
stating that it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement; provided, however, that the liability of such indemnifying party
under this Section 2.7(b) shall be limited to the amount of net proceeds
received by such indemnifying party in the offering giving rise to such
liability. Such indemnity shall remain in full force and effect, regardless of
any investigation made by or on behalf of the Company or any such director,
officer or controlling Person and shall survive the transfer of such securities
by such Holder.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subsections of this Section 2.7,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action or proceeding; provided, however, that the failure
of any indemnified party to give notice as provided herein shall not relieve
the indemnifying party of its obligations under the preceding subsections of
this Section 2.7, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice, and shall not relieve the
indemnifying party from any liability
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which it may have to the indemnified party otherwise than under this Section
2.7. In case any such action or proceeding is brought against an indemnified
party, the indemnifying party shall be entitled to participate therein and,
unless in the opinion of outside counsel to the indemnified party a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such claim, to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party; provided, however,
that if the defendants in any such action or proceeding include both the
indemnified party and the indemnifying party and if in the opinion of outside
counsel to the indemnified party there may be legal defenses available to such
indemnified party and/or other indemnified parties which are different from or
in addition to those available to the indemnifying party, the indemnified party
or parties shall have the right to select separate counsel to defend such
action or proceeding on behalf of such indemnified party or parties and the
indemnifying party shall be obligated to pay the fees and expenses of such
separate counsel or counsels. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by the indemnified party of such counsel, the indemnifying party shall not be
liable to such indemnified party for any legal expenses subsequently incurred
by the latter in connection with the defense thereof other than reasonable
costs of investigation (unless the proviso in the preceding sentence shall be
applicable). No indemnifying party shall be liable for any settlement of any
action or proceeding effected without its written consent which shall not be
unreasonably withheld. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation.
(d) Contribution. If the indemnification provided for in
this Section 2.7 shall for any reason be held by a court to be unavailable to
an indemnified party under subsection (a) or (b) hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof, then, in lieu of
the amount paid or payable under subsection (a) or (b) hereof, the indemnified
party and the indemnifying party under subsection (a) or (b) hereof shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with
investigating the same), (i) 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, which resulted in such loss, claim, damage or
liability, or action in respect thereof, with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations, or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law or if the allocation provided in this clause (ii) provides a
greater amount to the indemnified party than clause (i) above, in such
proportion as shall be appropriate to reflect not only the relative fault but
also the relative benefits received by the indemnifying party and the
indemnified party from the offering of the securities covered
-17-
by such registration statement as well as any other relevant equitable
considerations. The parties hereto agree that it would not be just and equitable
if contributions pursuant to this Section 2.7(d) were to be 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
sentence of this Section 2.7(d). No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute as provided
in this subsection (d) are several and not joint and shall be in proportion to
the relative value of their respective Registrable New Common Stock covered by
such registration statement. In addition, no Person shall be obligated to
contribute hereunder any amounts in payment for any settlement of any action or
claim effected without such Person's prior written consent, which consent shall
not be unreasonably withheld. Notwithstanding anything in this subsection (d) to
the contrary, no indemnifying party (other than the Company) shall be required
to contribute any amount in excess of the net proceeds received by such party
from the sale of the Registrable New Common Stock in the offering to which the
losses, claims, damages or liabilities of the indemnified parties relate.
(e) Other Indemnification. Indemnification and contribution
similar to that specified in the preceding subsections of this Section 2.7
(with appropriate modifications) shall be given by the Company and the Holders
with respect to any required registration or other qualification of securities
under any Federal, state or blue sky law or regulation of any governmental
authority other than the Securities Act. The indemnification agreements
contained in this Section 2.7 shall be in addition to any other rights to
indemnification or contribution which any indemnified party may have pursuant
to law or contract and shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any indemnified party
and shall survive the transfer of any of the Registrable New Common Stock by
any of the Holders.
(f) Indemnification Payments. The indemnification and
contribution required by this Section 2.7 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as and
when bills are received or expense, loss, damage or liability is incurred;
provided, however, that such periodic payments shall only be made upon delivery
to the indemnifying party of an agreement by the indemnified party to repay the
amounts advanced to the extent it is ultimately determined that the indemnified
party is not entitled to indemnification pursuant to this Section 2.7 or
otherwise. The parties hereto agree that for each of them such agreement shall
be deemed to be contained herein.
2.8 Unlegended Certificates. In connection with the offering of
any Registrable New Common Stock registered pursuant to this Section 2, the
Company shall facilitate the timely preparation and delivery to the Holders and
the underwriters, if any, participating in such offering, of unlegended
certificates representing ownership of
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such Registrable New Common Stock and/or Registrable Warrants being sold in
such denominations and registered in such names as requested by the Holders or
such underwriters.
2.9 Limitation on Sale of Securities. If any registration of
Registrable New Common Stock shall be in connection with an underwritten public
offering, the Company agrees (x) not to effect any public sale or distribution
of any issue of the same class or series as the Registrable New Common Stock
being registered in an underwritten public offering (other than pursuant to an
employee stock option, stock purchase or similar plan, pursuant to a dividend
reinvestment plan, pursuant to a merger, exchange offer or a transaction of the
type specified in Rule 145(a) under the Securities Act), any securities of the
Company similar to any such issue or any securities of the Company or of any
security convertible into or exchangeable or exercisable for any such issue of
the Company during the 15 days prior to, and during the 45-day period (or such
longer period, not in excess of 90 days, as may be reasonably requested by the
underwriter of such offering) beginning on the effective date of such
registration statement (except as part of such registration) and (y) that any
agreement entered into after the date of this Agreement pursuant to which the
Company issues or agrees to issue any privately placed securities shall contain
a provision under which holders of such securities agree not to effect any
public sale or distribution of any such securities during the period referred
to in the foregoing clause (x), including any sale pursuant to Rule 144 under
the Securities Act (except as part of such registration, if permitted).
2.10 No Required Sale. Nothing in this Agreement shall be deemed
to create an independent obligation on the part of any of the Holders to sell
any Registrable New Common Stock pursuant to any effective registration
statement.
3. Rule 144. The Company shall take all actions reasonably necessary
to enable holders of Registrable New Common Stock to sell such securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144, or (b) any similar rule or regulation
hereafter adopted by the Commission including, without limiting the generality
of the foregoing, filing on a timely basis all reports required to be filed by
the Exchange Act. Upon the request of any Holder, the Company will deliver to
such holder a written statement as to whether it has complied with such
requirements.
4. Amendments and Waivers. This Agreement may not be modified or
amended, or any of the provisions hereof waived, temporarily or permanently,
except pursuant to the written consent of the Holders of not less than a
majority of the shares of Registrable New Common Stock and the Company.
5. Adjustments. In the event of any change in the capitalization of
the Company as a result of any stock split, stock dividend, reverse split,
combination,
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recapitalization, merger, consolidation, or otherwise, the provisions of this
Agreement shall be appropriately adjusted.
6. Notice. All notices and other communications hereunder shall be in
writing and, unless otherwise provided herein, shall be deemed to have been
given when received by the party to whom such notice is to be given at its
address set forth below, or such other address for the party as shall be
specified by notice given pursuant hereto:
(a) If to any Holder, the address of such Holder set forth on Annex A
attached hereto;
(b) If to the Company, to it at:
Harvard Industries, Inc.
0 Xxxxxx Xxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn: [ ]
With a copy to:
7. Assignment. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns. This Agreement may not be assigned by the
Company. Any Holder may, at its election, at any time or from time to time,
assign its rights under this Agreement, in whole or in part, to any transferee
of Registrable New Common Stock.
8. Remedies. The parties hereto agree that money damages or other
remedy at law would not be sufficient or adequate remedy for any breach or
violation of, or a default under, this Agreement by them and that, in addition
to all other remedies available to them, each of them shall be entitled to an
injunction restraining such breach, violation or default or threatened breach,
violation or default and to any other equitable relief, including without
limitation specific performance, without bond or other security being required.
In any action or proceeding brought to enforce any provision of this Agreement
(including the indemnification provisions thereof), the successful party shall
be entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
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9. No Inconsistent Agreements. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
which is inconsistent with the rights granted to the Holders in this Agreement
or otherwise conflicts with the provisions hereof, other than any customary
lock-up agreement with the underwriters in connection with any registration and
offering by the Company of its securities to the public (an "Offering")
effected hereunder, pursuant to which the Company shall agree not to register
for sale, and the Company shall agree not to sell or otherwise dispose of New
Common Stock or any securities convertible into or exercisable or exchangeable
for New Common Stock, as applicable, for a specified period following such
Offering. The Company hereby represents and warrants that the rights granted to
the Holders hereunder do not in any way conflict with and are not inconsistent
with any other agreements to which the Company is a party or by which it is
bound. The Company further agrees that if any other registration rights
agreement entered into after the date of this Agreement with respect to any of
its securities contains terms which are more favorable to, or less restrictive
on, the other party thereto than the terms and conditions contained in this
Agreement are (insofar as they are applicable) to the Holders, then the terms
and conditions of this Agreement shall immediately be deemed to have been
amended without further action by the Company or the Holders so that the
Holders shall be entitled to the benefit of any such more favorable or less
restrictive terms or conditions.
10. Headings. Headings of the sections and paragraphs of this
Agreement are for convenience only and shall be given no substantive or
interpretive effect whatsoever.
11. Governing Law; Jurisdiction. (a) This Agreement shall be
construed and enforced in accordance with and governed by the laws of the State
of New York, without giving effect to the conflicts of law principles thereof.
(b) Each of the parties hereto irrevocably and unconditionally
consents to the jurisdiction of the federal courts and courts of the state of
New York situated in New York County, New York in respect of the interpretation
and enforcement of the provisions of this Agreement, and hereby agrees that
service of process in any such action, suit or proceeding against the other
party with respect to this Agreement may be made upon it in any manner
permitted by the laws of New York or the federal laws of the United States.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
13. Invalidity of Provision. The invalidity or unenforceability of
any provision of this Agreement in any jurisdiction shall not affect the
validity or
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enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that provision, in any
other jurisdiction. If any restriction or provision of this Agreement is held
unreasonable, unlawful or unenforceable in any respect, such restriction or
provision shall be interpreted, revised or applied in a manner that renders it
lawful and enforceable to the fullest extent possible under law.
14. Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all further acts and things and shall execute
and deliver all 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.
15. Entire Agreement. This Agreement and the other writings referred
to herein or delivered in connection herewith contain the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior and contemporaneous arrangements or understandings with respect thereto.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date first above written.
HARVARD INDUSTRIES, INC.
By: /s/ D. Xxxxx Xxxxxx
-----------------------------
Name:
Title:
[INITIAL HOLDERS]
[ ]
--------------------------
By:
-----------------------------
Name:
Title:
[ ]
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By:
-----------------------------
Name:
Title:
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[ ]
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By:
-----------------------------
Name:
Title:
[ ]
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By:
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Name:
Title:
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