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EXHIBIT 4.6
SECURITYHOLDERS' AND REGISTRATION RIGHTS AGREEMENT
DATED AS OF APRIL 17, 1997
AMONG
PACKAGED ICE, INC.,
AND
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
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TABLE OF CONTENTS
Section Page
Section 1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.1 (a) Demand Registration . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(b) Effective Registration . . . . . . . . . . . . . . . . . . . . . . . . . 5
(c) Restrictions on Sale by Holders . . . . . . . . . . . . . . . . . . . . 5
(d) Underwritten Registrations . . . . . . . . . . . . . . . . . . . . . . . 6
(e) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(f) Priority in Demand Registration . . . . . . . . . . . . . . . . . . . . 6
2.2 (a) Piggy-Back Registration . . . . . . . . . . . . . . . . . . . . . . . . 7
(b) Priority in Piggyback Registration . . . . . . . . . . . . . . . . . . . 7
2.3 Limitations, Conditions and Qualifications to Obligations
Under Registration Covenants . . . . . . . . . . . . . . . . . . . . . 8
2.4 Restrictions on Sale by the Company and Others . . . . . . . . . . . . 9
2.5 Rule 144 and Rule 144A . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4. Indemnification and Contribution . . . . . . . . . . . . . . . . . . . 15
Section 5. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(a) No Inconsistent Agreements . . . . . . . . . . . . . . . . . . . . . . 18
(b) Adjustments Affecting Registrable Securities . . . . . . . . . . . . . 18
(c) Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . 19
(d) Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(e) Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . 19
(f) Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(g) Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(h) GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
(i) Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(j) Third Party Beneficiary . . . . . . . . . . . . . . . . . . . . . . . 20
(k) Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
(l) Securities Held by the Company or Its Affiliates . . . . . . . . . . . 20
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SECURITYHOLDERS' AND REGISTRATION RIGHTS AGREEMENT
THIS SECURITYHOLDERS' AND REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is made and entered into as of April 17, 1997, among PACKAGED ICE,
INC., a Texas corporation (the "Company") and ▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
(the"Initial Purchaser").
This Agreement is entered into in connection with the Purchase
Agreement, dated April 11, 1997, among the Company, the Subsidiary Guarantors
named therein, and the Initial Purchaser (the "Purchase Agreement"), which
provides for the issuance and sale to the Initial Purchaser of (i) 50,000 units
consisting of an aggregate of $50,000,000 aggregate principal amount 12% Senior
Notes due 2004 and 50,000 warrants (the "Note Warrants"), initially exercisable
for an aggregate of 511,885 of shares of common stock, par value $.01 per
share, of the Company (the "Common Stock") and (ii) 127,972 warrants (the
"Purchaser Warrants" and, together with the Note Warrants, the "Warrants")
initially exercisable for an equal number of shares of Common Stock. In order
to induce the Initial Purchaser to enter into the Purchase Agreement, the
Company has agreed to provide to the Initial Purchaser and the Holders (as
defined herein), among other things, the registration rights for the Warrant
Shares (as defined herein) set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligations of the Initial
Purchaser under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
Section 1. Definitions. As used in this Agreement, the following
defined terms shall have the following meanings:
"Advice" has the meaning ascribed to such term in the last
paragraph of Section 3 hereof.
"Agreement" has the meaning ascribed to such term in the
preamble of this Agreement.
"Business Day" shall mean a day that is not a Legal Holiday.
"Common Stock" has the meaning ascribed to such term in the
preamble of this Agreement.
"Company" shall have the meaning ascribed to that term in the
preamble of this Agreement and shall also include the Company's
successors and assigns.
"Demand Registration" has the meaning ascribed to such term in
Section 2.1(a) hereof.
"Demand Right Holders" means persons with "demand"
registration rights pursuant to a contractual commitment of the
Company.
"DTC" has the meaning ascribed to such term in Section 3(i)
hereof.
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"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time and the rules and regulations of the SEC
promulgated thereunder.
"Holder" means the Initial Purchaser, for so long as it owns
any Warrants and/or Warrant Shares, and each of its successors,
assigns and direct and indirect transferees who become registered
owners of such Warrants or Warrant Shares.
"Included Securities" has the meaning ascribed to such term in
Section 2.1(a) hereof.
"indemnified party" has the meaning ascribed to such term in
Section 4(c) hereof.
"indemnifying party" has the meaning ascribed to such term in
Section 4(c) hereof.
"Initial Purchaser" means ▇▇▇▇▇▇▇▇▇ & Company, Inc.
"Inspectors" has the meaning ascribed to such term in Section
3(n) hereof.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on
which banking institutions in New York, New York are required by law,
regulation or executive order to remain closed.
"Notes" means the $50,000,000 aggregate principal amount of
12% Senior Notes due 2004 of the Company.
"Person" shall mean an individual, partnership, corporation,
trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Piggy-Back Registration" has the meaning ascribed to such
term in Section 2.2 hereof.
"Public Equity Offering" means an underwritten offer and sale
of capital stock of the Company pursuant to a registration statement
that has been declared effective by the Commission pursuant to the
Securities Act (other than a registration statement on Form S-8 or
otherwise relating to equity securities issuable under any employee
benefit plan of the Company).
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to
completion and a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities
Act), as amended or supplemented by any prospectus supplement, and all
other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
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"Purchase Agreement" has the meaning ascribed to such term in
the preamble of this Agreement.
"Registrable Securities" means any of (i) the Warrant Shares
(whether or not the related Warrants have been exercised) and (ii) any
other securities issued or issuable with respect to any Warrant Shares
by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or
other reorganization or otherwise. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities
when (i) a Registration Statement with respect to the offering of such
securities by the Holder thereof shall have been declared effective
under the Securities Act and such securities shall have been disposed
of by such Holder pursuant to such Registration Statement, (ii) such
securities are eligible for sale to the public pursuant to Rule 144(k)
(or any similar provision then in force, but not Rule 144A)
promulgated under the Securities Act, (iii) such securities shall have
been otherwise transferred by such Holder and new certificates for
such securities not bearing a legend restricting further transfer
shall have been delivered by the Company or its transfer agent and
subsequent disposition of such securities shall not require
registration or qualification under the Securities Act or any similar
state law then in force or (iv) such securities shall have ceased to
be outstanding.
"Registration Expenses" shall mean all expenses incident to
the Company's performance of or compliance with its obligations, under
this Agreement, including, without limitation, all SEC and stock
exchange or National Association of Securities Dealers, Inc.
registration and filing fees and expenses, fees and expenses of
compliance with securities or blue sky laws (including, without
limitation, reasonable fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the
Registrable Securities), preparing, printing, filing, duplicating and
distributing the Registration Statement and the related Prospectus,
the cost of printing stock certificates, the cost and charges of any
transfer agent, rating agency fees, printing expenses, messenger,
telephone and delivery expenses, fees and disbursements of counsel for
the Company and all independent certified public accountants, the fees
and disbursements of underwriters customarily paid by issuers or
sellers of securities (but not including any underwriting discounts or
commissions or transfer taxes, if any, attributable to the sale of
Registrable Securities by Selling Holders), fees and expenses of one
counsel for the Holders and other reasonable out-of-pocket expenses of
the Holders.
"Registration Statement" shall mean any appropriate
registration statement of the Company filed with the SEC pursuant to
the Securities Act which covers any of the Registrable Securities
pursuant to the provisions of this Agreement 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 therein.
"Requisite Securities" shall mean a number of Registrable
Securities equal to not less than 25% of the Registrable Securities
held in the aggregate by all Holders.
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"Rule 144" shall mean Rule 144 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any
similar rule (other than Rule 144A) or regulation hereafter adopted by
the SEC providing for offers and sales of securities made in
compliance therewith resulting in offers and sales by subsequent
holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the
Securities Act.
"Rule 144A" shall mean Rule 144A promulgated under the
Securities Act, as such Rule may be amended from time to time, or any
similar rule (other than Rule 144") or regulation hereafter adopted by
the SEC.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time and the rules and regulations of the SEC
promulgated thereunder.
"Securityholder" means, collectively, each Holder and their
respective successors and assigns.
"Selling Holder" shall mean a Holder who is selling
Registrable Securities in accordance with the provisions of Section
2.1 or 2.2 hereof.
"Warrants" has the meaning ascribed to such term in the
preamble of this Agreement.
"Warrant Shares" means the shares of Common Stock deliverable
upon exercise of the Common Stock Warrants and the Preferred Stock
deliverable upon exercise of the Preferred Stock Warrants.
"Withdrawal Election" has the meaning ascribed to such term in
Section 2.2(b) hereof.
Section 2. Registration Rights.
2.1 (a) Demand Registration. From time to time, after 180
days following the completion by the Company of a Public Equity Offering,
Holders owning, individually or in the aggregate, not less than the Requisite
Securities may make a written request for registration under the Securities Act
of their Registrable Securities (a "Demand Registration"). Within 120 days of
the receipt of such written request for a Demand Registration, the Company
shall file with the SEC and use its best efforts to cause to become effective
under the Securities Act a Registration Statement with respect to such
Registrable Securities. Any such request will specify the number of Registrable
Securities proposed to be sold and will also specify the intended method of
disposition thereof. The Company shall give written notice of such registration
request to all other Holders of Registrable Securities within 15 days after the
receipt thereof. Within 20 days after notice of such registration request by
the Company, any Holder may request in writing that such Holder's Registrable
Securities be included in such Registration Statement and the Company shall
include in such Registration
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Statement the Registrable Securities of any such Holder requested to be so
included (the "Included Securities"). Each such request by such other Holders
shall specify the number of Included Securities proposed to be sold and the
intended method of disposition thereof. Subject to Section 2.1(b) hereof, the
Company shall be required to register Registrable Securities pursuant to this
Section 2.1(a) on a maximum of two separate occasions.
Subject to Section 2.1(f) hereof, no other securities of the
Company except securities held by any Holder, any Demand Right Holder, and any
Person entitled to exercise "piggy back" registration rights pursuant to
contractual commitments of the Company shall be included in a Demand
Registration.
(b) Effective Registration. A Registration Statement will
not be deemed to have been effected as a Demand Registration unless it has been
declared effective by the SEC and the Company has complied in a timely manner
and in all material respects with all of its obligations under this Agreement
with respect thereto; provided, however, that if, after such Registration
Statement has become effective, the offering of Registrable Securities pursuant
to such Registration Statement is or becomes the subject of any stop order,
injunction or other order or requirement of the SEC or any other governmental
or administrative agency or court that prevents, restrains or otherwise limits
the sale of Registrable Securities pursuant to such Registration Statement for
any reason not attributable to any Holder participating in such registration
and such Registration Statement has not become effective within a reasonable
time period thereafter (not to exceed 60 days), such Registration Statement
will be deemed not to have been effected. If (i) a registration requested
pursuant to this Section 2.1 is deemed not to have been effected or (ii) a
Demand Registration does not remain effective under the Securities Act until at
least the earlier of (A) an aggregate of 90 days after the effective date
thereof or (B) the consummation of the distribution by the Holders of all of
the Registrable Securities covered thereby, then the Company shall continue to
be obligated to effect an additional Demand Registration pursuant to this
Section 2.1 provided, that a Demand Registration shall not be counted as such
unless the Selling Holders have sold at least 80% of the Registrable Securities
covered thereby. For purposes of calculating the 90-day period referred to in
the preceding sentence, any period of time during which such Registration
Statement was not in effect shall be excluded. The Holders of Registrable
Securities shall be permitted to withdraw all or any part of the Registrable
Securities from a Demand Registration at any time prior to the effective date
of such Demand Registration.
(c) Restrictions on Sale by Holders. Each Holder of
Registrable Securities whose Registrable Securities are covered by a
Registration Statement filed pursuant to this Section 2.1 and are to be sold
thereunder agrees, if and to the extent reasonably requested by the managing
underwriter or underwriters in an underwritten offering, not to effect any
public sale or distribution of Registrable Securities or of securities of the
Company of the same class as any securities included in such Registration
Statement, including a sale pursuant to Rule 144 (except as part of such
underwritten offering), during the 30-day period prior to, and during the
120-day period beginning on, the closing date of each underwritten offering
made pursuant to such Registration Statement, to the extent timely notified in
writing by the Company or such managing underwriter or underwriters.
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The foregoing provisions of Section 2.1(c) shall not apply to
any Holder of Registrable Securities if such Holder is prevented by applicable
statute or regulation from entering into any such agreement; provided, however,
that any such Holder shall undertake, in its request to participate in any such
underwritten offering, not to effect any such public sale or distribution of
Registrable Securities or of securities of the Company of the same class as any
securities included in such Registration Statement, including a sale pursuant
to Rule 144 (except as part of such underwritten offering) during such period,
unless it has provided 45 days' prior written notice of such sale or
distribution to the underwriter or underwriters.
(d) Underwritten Registrations. If any of the Registrable
Securities covered by a Demand Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will manage the offering will be selected by the Holders of not less than
a majority of the Registrable Securities then outstanding to be sold thereunder
and will be reasonably acceptable to the Company.
No Holder of Registrable Securities may participate in any
underwritten registration pursuant to a Registration Statement filed under this
Agreement unless such Holder (a) agrees to (i) sell such Holder's Registrable
Securities on the basis provided in and in compliance with any underwriting
arrangements approved by the Holders of not less than a majority of the
Registrable Securities to be sold thereunder and (ii) comply with Rules 10b-6
and 10b-7 under the Exchange Act and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
(e) Expenses. The Company will pay all Registration
Expenses in connection with the registrations requested pursuant to Section
2.1(a) hereof. Each Holder of Registrable Securities shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to a Registration
Statement requested pursuant to this Section 2.1.
(f) Priority in Demand Registration. In a registration
pursuant to Section 2.1 hereof involving an underwritten offering, if the
managing underwriter or underwriters of such underwritten offering have
informed, in writing, the Company and the Selling Holders who have requested
such Demand Registration or who have sought inclusion therein that in such
underwriter's or underwriters' opinion the total number of securities which the
Selling Holders and any other Person desiring to participate in such
registration intend to include in such offering is such as to adversely affect
the success of such offering, including the price at which such securities can
be sold, then the Company will be required to include in such registration only
the amount of securities which it is so advised should be included in such
registration. In such event securities shall be registered in such registration
in the following order of priority: (i) first, the securities which have been
requested to be included in such registration by the Holders of Registrable
Securities pursuant to this Agreement and the Demand Right Holders (pro rata
based on the amount of securities sought to be registered by such Persons),
(ii) second, provided that no securities sought to be included by the Holders
and the Demand Right Holders have been excluded from such registration, the
securities of other Persons entitled to exercise "piggy-back" registration
rights pursuant to contractual
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commitments of the Company (pro rata based on the amount of securities sought
to be registered by such Persons) and (iii) third, securities the Company
proposes to register.
2.2 (a) Piggy-Back Registration. If at any time after
the Company has completed a Public Equity Offering, the Company proposes to
file a Registration Statement under the Securities Act with respect to an
offering by the Company for its own account or for the account of any of its
securityholders of any class of its Common Stock in a firmly underwritten
Public Equity Offering (other than (i) a Registration Statement on Form S-4 or
S-8 (or any substitute form that may be adopted by the SEC) or (ii) a
Registration Statement filed in connection with an exchange offer or offering
of securities solely to the Company's existing securityholders), then the
Company shall give written notice of such proposed filing to the Holders of
Registrable Securities as soon as practicable (but in no event fewer than 20
days before the anticipated filing date), and such notice shall offer such
Holders the opportunity to register such number of shares of Registrable
Securities as each such Holder may request in writing within 30 days after
receipt of such written notice from the Company (which request shall specify
the Registrable Securities intended to be disposed of by such Selling Holder (a
"Piggy-Back Registration"). The Company shall use its best efforts to keep such
Piggy-Back Registration continuously effective under the Securities Act until
at least the earlier of (A) an aggregate of 90 days after the effective date
thereof or (B) the consummation of the distribution by the Holders of all of
the Registrable Securities covered thereby. The Company shall use its best
efforts to cause the managing Underwriter or underwriters, if any, of such
proposed offering to permit the Registrable Securities requested to be included
in a Piggy-Back Registration to be included on the same terms and conditions as
any similar securities of the Company or any other securityholder included
therein and to permit the sale or other disposition of such Registrable
Securities in accordance with the intended method of distribution thereof. Any
Selling Holder shall have the right to withdraw its request for inclusion of
its Registrable Securities in any Registration Statement pursuant to this
Section 2.2 by giving written notice to the Company of its request to withdraw.
The Company may withdraw a Piggy-Back Registration at any time prior to the
time it becomes effective or the Company may elect to delay the registration;
provided, however, that the Company shall give prompt written notice thereof to
participating Selling Holders. The Company will pay all Registration Expenses
in connection with each registration of Registrable Securities requested
pursuant to this Section 2.2, and each Holder of Registrable Securities shall
pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to a Registration Statement effected pursuant to this Section 2.2.
No registration effected under this Section 2.2, and no
failure to effect a registration under this Section 2.2, shall relieve the
Company of its obligation to effect a registration upon the request of Holders
of Registrable Securities pursuant to Section 2.1 hereof, and no failure to
effect a registration under this Section 2.2 and to complete the sale of
securities registered thereunder in connection therewith shall relieve the
Company of any other obligation under this Agreement.
(b) Priority in Piggyback Registration. In a registration
pursuant to Section 2.2 hereof involving an underwritten offering, if the
managing underwriter or underwriters of such underwritten offering have
informed, in writing, the Company and the Selling Holders requesting inclusion
in such offering that in such underwriter's or underwriters' opinion the total
number of
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securities which the Company, the Selling Holders and any other Persons
desiring to participate in such registration intend to include in such offering
is such as to adversely affect the success of such offering, including the
price at which such securities can be sold, then the Company will be required
to include in such registration only the amount of securities which it is so
advised should be included in such registration. In such event: (x) in cases
initially involving the registration for sale of securities for the Company's
own account, securities shall be registered in such offering in the following
order of priority: (i) first, the securities which the Company proposes to
register, and (ii) second, the securities which have been requested to be
included in such registration by Persons entitled to exercise "piggy-back"
registration rights pursuant to contractual commitments of the Company (pro
rata on the amount of securities sought to be registered by such Persons); and
(y) in cases not initially involving the registration for sale of securities
for the Company's own account, securities shall be registered in such offering
in the following order of priority: (i) first, the securities of any Person
whose exercise of a "demand" registration right pursuant to a contractual
commitment of the Company is the basis for the registration (provided that if
such Person is a Holder of Registrable Securities, as among Holders of
Registrable Securities there shall be no priority and Registrable Securities
sought to be included by Holders of Registrable Securities shall be included
pro rata based on the amount of securities sought to be registered by such
Persons), (ii) second, securities of other persons entitled to exercise
"piggy-back" registration rights pursuant to contractual commitments (pro rata
based on the amount of securities sought to be registered by such persons) and
(iii) third, the securities which the Company proposes to register.
If, as a result of the provisions of this Section 2.2(b), any
Selling Holder shall not be entitled to include all Registrable Securities in a
Piggy-Back Registration that such Selling Holder has requested to be included,
such Selling Holder may elect to withdraw his request to include Registrable
Securities in such registration (a "Withdrawal Election"); provided, however,
that a Withdrawal Election shall be irrevocable and, after making a Withdrawal
Election, a Selling Holder shall no longer have any right to include
Registrable Securities in the registration as to which such Withdrawal Election
was made.
2.3 Limitations, Conditions and Qualifications to
Obligations Under Registration Covenants. The obligations of the Company set
forth in Sections 2.1 and 2.2 hereof are subject to each of the following
limitations, conditions and qualifications:
(i) Subject to the next sentence of this paragraph, the
Company shall be entitled to postpone, for a reasonable period of time, the
filing or effectiveness of, or suspend the rights of any Holders to make sales
pursuant to, any Registration Statement otherwise required to be prepared,
filed and made and kept effective by it hereunder; provided, however, that the
duration of such postponement or suspension may not exceed the earlier to occur
of (A) 15 days after the cessation of the circumstances described in the next
sentence of this paragraph on which such postponement or suspension is based or
(B) 120 days after the date of the determination of the Board of Directors
referred to in the next sentence, and the duration of any such postponement or
suspension shall be excluded from the calculation of the 90-day period
described in Section 2.1(b) hereof. Such postponement or suspension may only be
effected if the Board of Directors of the Company determines in good faith that
the filing or effectiveness of, or sales pursuant to, such Registration
Statement would materially impede, delay or interfere with any financing, offer
or sale of securities,
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acquisition, corporate reorganization or other significant transaction
involving the Company or any of its affiliates (whether or not planned,
proposed or authorized prior to an exercise of demand registration rights
hereunder or any other registration rights agreement) or require disclosure of
material information which the Company has a bona fide business purpose for
preserving as confidential. If the Company shall so postpone the filing or
effectiveness of a Registration Statement or so suspend the rights of Holders
to make sales it shall, as promptly as possible, notify any Selling Holders of
such determination, and the Selling Holders shall (y) have the right, in the
case of a postponement of the filing or effectiveness of a Registration
Statement, upon the affirmative vote of the Holders of not less than a majority
of the Registrable Securities to be included in such Registration Statement, to
withdraw the request for registration by giving written notice to the Company
within 10 days after receipt of such notice or (z) in the case of a suspension
of the right to make sales, receive an extension of the registration period
equal to the number of days of the suspension. Any Demand Registration as to
which the withdrawal election referred to in the preceding sentence has been
effected shall not be counted for purposes of the two Demand Registrations the
Company is required to effect pursuant to Section 2.1 hereof.
(ii) The Company shall not be required by this Agreement
to include securities in a Registration Statement pursuant to Section 2.2
hereof if (i) in the written opinion of counsel to the Company, addressed to
the Holders and delivered to them, the Holders of such securities seeking
registration would be free to sell all such securities within the current
calendar quarter, without registration, under Rule 144, which opinion may be
based in part upon the representation by such Holders, which representation
shall not be unreasonably withheld, that each such Holder is not an affiliate
of the Company within the meaning of the Securities Act and (ii) all
requirements under the Securities Act for effecting such sales are satisfied at
such time.
(iii) The Company's obligations shall be subject to the
obligations of the Selling Holders, which the Selling Holders acknowledge, to
furnish all information and materials and to take any and all actions as may be
required under applicable federal and state securities laws and regulations to
permit the Company to comply with all applicable requirements of the SEC and to
obtain any acceleration of the effective date of such Registration Statement.
(iv) The Company shall not be obligated to cause any
special audit to be undertaken in connection with any registration pursuant to
this Agreement unless such audit is requested by the underwriters with respect
to such registration.
2.4 Restrictions on Sale by the Company and Others. The
Company covenants and agrees that it shall not, and that it shall not cause or
permit any of its subsidiaries to, effect any public sale or distribution of
any securities of the same class as any of the Registrable Securities or any
securities convertible into or exchangeable or exercisable for such securities
(or any option or other right for such securities) during the 30-day period
prior to, and during the 90-day period beginning on, the commencement of any
underwritten offering of Registrable Securities pursuant to a Demand
Registration which has been requested pursuant to this Agreement, or a
Piggy-Back Registration.
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2.5 Rule 144 and Rule 144A. The Company covenants that it
will file the reports required to be filed by it under the Securities Act and
the Exchange Act and the rules and regulations adopted by the SEC thereunder in
a timely manner and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Registrable Securities,
make publicly available other information so long as necessary to permit sales
pursuant to Rule 144 and Rule 144A (to the extent Registrable Securities may
then be sold pursuant to Rule 144A). The Company further covenants for so long
as any Registrable Securities remain outstanding to make available to any
Holder or beneficial owner of Registrable Securities in connection with any
sale thereof and any prospective purchaser of such Registrable Securities from
such Holder or beneficial owner, the information required by Rule 144A(d)(y)
under the Securities Act in order to permit resales of such Registrable
Securities pursuant to Rule 144A. Upon the request of any Holder of Registrable
Securities, the Company will in a timely manner deliver to such Holder a
written statement as to whether it has complied with such information
requirements.
Section 3. Registration Procedures. In connection with the
obligations of the Company with respect to any Registration Statement pursuant
to Sections 2.1 and 2.2 hereof, the Company shall:
(a) Prepare and file with the SEC as soon as practicable
each such Registration Statement (but in any event on or prior to the
date of filing thereof required under this Agreement) and cause each
such Registration Statement to become effective and remain effective
as provided herein; provided, however, that before filing any such
Registration Statement or any Prospectus or any amendments or
supplements thereto (including documents that would be incorporated or
deemed to be incorporated therein by reference, including such
documents filed under the Exchange Act that would be incorporated
therein by reference), the Company shall afford promptly to the
Holders of the Registrable Securities covered by such Registration
Statement, their counsel and the managing underwriter or underwriters,
if any, an opportunity to review copies of all such documents proposed
to be filed a reasonable time prior to the proposed filing thereof.
The Company shall not file any Registration Statement or Prospectus or
any amendments or supplements thereto if the Holders of a majority of
the Registrable Securities covered by such Registration Statement,
their counsel, or the managing underwriter or underwriters, if any,
shall reasonably object in writing unless failure to file any such
amendment or supplement would involve a violation of the Securities
Act or other applicable law.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to such Registration Statement as may be
necessary to keep such Registration Statement continuously effective
for the time periods prescribed hereby; cause the related Prospectus
to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) promulgated under the Securities Act; and
comply with the provisions of the Securities Act, the Exchange Act and
the rules and regulations of the SEC promulgated thereunder applicable
to it with respect to the disposition of all securities covered by
such Registration Statement as so amended or such Prospectus as so
supplemented.
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(c) Notify the Holders of Registrable Securities, their
counsel and the managing underwriter or underwriters, if any, promptly
(but in any event within two (2) Business Days), and confirm such
notice in writing, (i) when a Prospectus or any prospectus supplement
or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same
has become effective (including in such notice a written statement
that any Holder may, upon request, obtain, without charge, one
conformed copy of such Registration Statement or post-effective
amendment including financial statements and schedules and exhibits),
(ii) of the issuance by the SEC of any stop order suspending the
effectiveness of such Registration Statement or of any order
preventing or suspending the use of any Prospectus or the initiation
or threatening of any proceedings for that purpose, (iii) if at any
time when a prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Securities the
representations and warranties of the Company contained in any
agreement (including any underwriting agreement) contemplated by
Section 3(m) below cease to be true and correct in any material
respect, (iv) of the receipt by the Company of any notification with
respect to (A) the suspension of the qualification or exemption from
qualification of the Registration Statement or any of the Registrable
Securities covered thereby for offer or sale in any jurisdiction, or
(B) the initiation of any proceeding for such purpose, (v) of the
happening of any event, the existence of any condition or information
becoming known that requires the making of any change in any
Registration Statement or Prospectus so that, in the case of such
Registration Statement, it will conform in all material respects with
the requirements of the Securities Act and it will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of any Prospectus, it
will conform in all material respects with the requirements of the
Securities Act and it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and (vi) of
the Company's reasonable determination that a post-effective amendment
to such Registration Statement would be appropriate.
(d) Use every reasonable effort to prevent the issuance
of any order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of a
Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Securities covered thereby
for sale in any jurisdiction, and, if any such order is issued, to
obtain the withdrawal of any such order at the earliest possible
moment.
(e) If requested by the managing underwriter or
underwriters, if any, or the Holders of a majority of the Registrable
Securities being sold in connection with an underwriting offering, (i)
promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or
underwriters, if any, or such Holders reasonably request to be
included therein to comply with applicable law, (ii) make all required
filings of such prospectus supplement or such post-effective amendment
as soon as practicable after the Company has received notification of
the matters to be incorporated in such prospectus supplement or
post-effective amendment, and (iii) supplement or make amendments to
such Registration Statement.
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(f) Furnish to each Holder of Registrable Securities who
so requests and to counsel for the Holders of Registrable Securities
and each managing underwriter, if any, without charge, upon request,
one conformed copy of the Registration Statement and each
post-effective amendment thereto, including financial statements and
schedules, and of all documents incorporated or deemed to be
incorporated therein by reference and all exhibits (including exhibits
incorporated by reference).
(g) Deliver to each Holder of Registrable Securities,
their counsel and each underwriter, if any, without charge, as many
copies of each Prospectus and each amendment or supplement thereto as
such Persons may reasonably request; and, subject to the last
paragraph of this Section 3, the Company hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of
the Holders of Registrable Securities and the underwriter or
underwriters or agents, if any, in connection with the offering and
sale of the Registrable Securities covered by such Prospectus and any
amendment or supplement thereto.
(h) Prior to any offering of Registrable Securities, to
register or qualify, and cooperate with the Holders of such
Registrable Securities, the managing underwriter or underwriters, if
any, and their respective counsel in connection with the registration
or qualification (or exemption from such registration or
qualification) of, such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the
United States as the managing underwriter or underwriters reasonably
request in writing, or, in the event of a non-underwritten offering,
as the Holders of a majority of such Registrable Securities may
request; provided, however, that where Registrable Securities are
offered other than through an underwritten offering, the Company
agrees to cause its counsel to perform Blue Sky investigations and
file registrations and qualifications required to be filed pursuant to
this Section 3(h); keep each such registration or qualification (or
exemption therefrom) effective during the period the Registration
Statement relating to such Registrable Securities is required to be
kept effective pursuant to this Agreement and do any and all other
acts or things necessary or advisable to enable the disposition in
such jurisdictions of the securities covered thereby; provided,
however, that the Company will not be required to (A) qualify
generally to do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so
subject or (C) become subject to taxation in any jurisdiction where it
is not then so subject.
(i) Cooperate with the Holders of Registrable Securities
and the managing underwriter or underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall not bear
any restrictive legends whatsoever and shall be in a form eligible for
deposit with The Depository Trust Company ("DTC"); and enable such
Registrable Securities to be in such denominations and registered in
such names as the managing underwriter or underwriters, if any, or
Holders may reasonably request at least two business days prior to any
sale of Registrable Securities in a firm commitment underwritten
public offering.
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(j) Use its best efforts to cause the Registrable
Securities covered by a Registration Statement to be registered with
or approved by such other governmental agencies or authorities within
the United States as may be necessary to enable the seller or sellers
thereof or the underwriter or underwriters, if any, to consummate the
disposition of such Registrable Securities, except as may be required
solely as a consequence of the nature of such selling Holder's
business, in which case the Company will cooperate in all reasonable
respects with the filing of the Registration Statement and the
granting of such approvals.
(k) Upon the occurrence of any event contemplated by
Section 3(c)(v) or 3(c)(vi) above, as promptly as practicable prepare
a supplement or post-effective amendment to the Registration Statement
or a supplement to the related Prospectus or any document incorporated
or deemed to be incorporated therein by reference, and, subject to
Section 3(a) hereof, file such with the SEC so that, as thereafter
delivered to the purchasers of Registrable Securities being sold
thereunder, such Prospectus will not contain 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 light of the
circumstances under which they were made, not misleading and will
otherwise comply with law.
(1) Prior to the effective date of a Registration
,Statement, (i) provide the registrar for the Registrable Securities
with certificates for such securities in a form eligible for deposit
with DTC and (ii) provide a CUSIP number for such securities.
(m) Enter into an underwriting agreement in form, scope
and substance as is customary in underwritten offerings and take all
such other actions as are reasonably requested by the managing
underwriter or underwriters in order to expedite or facilitate the
registration or disposition of such Registrable Securities in any
underwritten offering to be made of the Registrable Securities in
accordance with this Agreement, and in such connection, (i) make such
representations and warranties to, and covenants with, the underwriter
or underwriters, with respect to the business of the Company and the
subsidiaries of the Company, and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when requested:
(ii) use reasonable efforts to obtain opinions of counsel to the
Company and updates thereof, addressed to the underwriter or
underwriters covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by underwriters; (iii) use reasonable efforts to
obtain "cold comfort letters and updates thereof from the independent
certified public accountants of the Company (and, if applicable, the
subsidiaries of the Company) and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the
Registration Statement, addressed to each of the underwriters, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as reasonably requested
by the managing underwriter or underwriters and as permitted by the
Statement of Auditing Standards No. 72;
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and (iv) if an underwriting agreement is entered into, the same shall
contain customary indemnification provisions and procedures no less
favorable than those set forth in Section 5 (or such other provisions
and procedures acceptable to Holders of a majority of Registrable
Securities covered by such Registration Statement and the managing
underwriter or underwriters or agents) with respect to all parties to
be indemnified pursuant to said Section. The above shall be done at
each closing under such underwriting agreement, or as and to the
extent required thereunder.
(n) Make available for inspection by a representative of
the Holders of Registrable Securities being sold, any underwriter
participating in any such disposition of Registrable Securities, if
any, and any attorney or accountant retained by such representative of
the Holders or underwriter (collectively, the "Inspectors"), at the
offices where normally kept, during reasonable business hours, all
financial and other records and pertinent corporate documents of the
Company and the subsidiaries of the Company, and cause the officers,
directors and employees of the Company and the subsidiaries of the
Company to supply all information in each case reasonably requested by
any such Inspector in connection with such Registration Statement;
provided, however, that all information shall be kept confidential by
such Inspector, except to the extent that (i) the disclosure of such
information is necessary to avoid or correct a misstatement or omission
in the Registration Statement, (ii) the release of such information is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction, (iii) disclosure of such information is, in the opinion
of counsel for any Inspector, necessary or advisable in connection with
any action, claim, suit or proceeding, directly or indirectly,
involving or potentially involving such Inspector and arising out of,
based upon, relating to or involving this Agreement or any of the
transactions contemplated hereby or arising hereunder, or (iv) such
information has been made generally available to the public. Each
Selling Holder of such Registrable Securities agrees that information
obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company or of any of its
affiliates unless and until such is generally available to the public.
Each Selling Holder of such Registrable Securities further agrees that
it will, upon learning that disclosure of such information is sought in
a court of competent jurisdiction, give prompt notice to the Company
and allow the Company to undertake appropriate action to prevent
disclosure of the information deemed confidential at the Company's sole
expense.
(o) Comply with all applicable rules and regulations of
the SEC and make generally available to its securityholders earnings
statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than forty-five (45)
days after the end of any 12-month period (or ninety (90) days after
the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable
Securities are sold to an underwriter or to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold
to an underwriter or to underwriters in such an offering, commencing
on the first day of the first fiscal quarter of the Company after the
effective date of the relevant Registration Statement, which
statements shall cover said 12-month periods.
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(p) Use its best efforts to cause all Registrable
Securities relating to such Registration Statement to be listed on
each securities exchange, if any, on which similar securities issued
by the Company are then listed.
(q) Cooperate with the Selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and registered in such names as the
Selling Holders may reasonably request at least two business days
prior to the closing of any sale of Registrable Securities.
Each seller of Registrable Securities as to which any
registration is being effected agrees, as a condition to the registration
obligations with respect to such Holder provided herein, to furnish to the
Company such information regarding such seller and the distribution of such
Registrable Securities as the Company may, from time to time, reasonably
request in writing to comply with the Securities Act and other applicable law.
The Company may exclude from such registration the Registrable Securities of
any seller who fails to furnish such information within a reasonable time after
receiving such request. If the identity of a seller of Registrable Securities
is to be disclosed in the Registration Statement, such seller shall be
permitted to include all information regarding such seller as it shall
reasonably request.
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 3(c)(ii),
3(c)(iv), 3(c)(v), or 3(c)(vi) hereof, such Holder will forthwith discontinue
disposition of such Registrable Securities covered by the Registration
Statement or Prospectus until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(k) hereof), or
until it is advised in writing (the "Advice") by the Company that the use of
the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto, and, if so directed by the Company, such
Holder will deliver to the Company all copies, other than permanent file
copies, then in such Holder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice. In the
event the Company shall give any such notice, the period of time for which a
Registration Statement is required hereunder to be effective shall be extended
by the number of days during such periods from and including the date of the
giving of such notice to and including the date when each seller of Registrable
Securities covered by such Registration Statement shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 3(k)
hereof or (y) the Advice.
Section 4. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Holder and each Person, if any, who
controls such Holder within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, or is under common control with, or is
controlled by, such Holder, from and against any and all losses, claims,
damages and liabilities (including, without limitation, the reasonable legal
fees and other reasonable out-of-pocket expenses actually incurred in
connection with any suit, action or proceeding or any claim asserted), caused
by, arising out of or based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or caused by any
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omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(ii) any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or caused by any omission
or alleged omission to state in any such Prospectus a material fact required to
be stated or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Holder furnished to the
Company in writing by such Holder expressly for use therein; provided, however,
that the Company will not be liable if such untrue statement or omission or
alleged untrue statement or omission was contained or made in any preliminary
prospectus and corrected in the Prospectus or any amendment or supplement
thereto and the Prospectus does not contain any other untrue statement or
omission or alleged untrue statement or omission of a material fact that was
the subject matter of the related proceeding and any such loss, liability,
claim, damage or expense suffered or incurred by the Holders resulted from any
action, claim or suit by any Person who purchased Registrable Securities which
are the subject thereof from such Holder and it is established in the related
proceeding that such Holder failed to deliver or provide a copy of the
Prospectus (as mended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Securities sold to such Person if
required by applicable law, unless such failure to deliver or provide a copy of
the Prospectus (as amended or supplemented was a result of noncompliance by the
Company with Section 5 of this Agreement.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
any Registration Statement, and each Person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Holder, but only with reference to information relating to such Holder
furnished to the Company in writing by such Holder expressly for use in any
Registration Statement or any Prospectus (or any amendment or supplement
thereto) or any preliminary prospectus. The liability of any Holder under this
paragraph shall in no event exceed the proceeds received by such Holder from
sales of Registrable Securities giving rise to such obligations.
(c) In case any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
either paragraph (a) or (b) above, such Person (the "indemnified party") shall
promptly notify the Person against which such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred of such counsel relating to
such proceeding; provided, however, that the failure to so notify the
indemnifying party shall not relieve it of any obligation or liability which it
may have hereunder or otherwise (unless and only to the extent that such
failure directly results in the loss or compromise of any material rights or
defenses by such indemnifying party and such indemnifying party was not
otherwise aware of such action or claim). In any such proceeding, any
indemnified party shall have the right to retain its own
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counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed in writing to the contrary, (ii) the
indemnifying party shall have failed to retain within a reasonable period of
time counsel reasonably satisfactory to such indemnified party or parties or
(iii) the named parties to any such proceeding (including any impleaded
parties) include both such indemnified party or parties and the indemnifying
parties or an affiliate of the indemnifying parties or such indemnified parties
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that, unless there exists a conflict among indemnified parties, the
indemnifying parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed
promptly after receipt of the invoice therefore as they are incurred. Any such
separate firm for the Holders and such control Persons of the Holders shall be
designated in writing by Holders who sold a majority in interest of Registrable
Securities sold by all such Holders and any such separate firm for the Company,
its directors, its officers and such control Persons of the Company shall be
designated in writing by the Company. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its prior written
consent, but if settled with such consent or if there is a final non-appealable
judgment for the plaintiff for which the indemnified party is entitled to
indemnification pursuant to this Agreement, the indemnifying party agrees to
indemnify any indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for reasonable fees and expenses actually
incurred by counsel as contemplated by the third sentence of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its prior written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement; provided, however, that the indemnifying party shall not be liable
for any settlement effected without its consent pursuant to this sentence if
the indemnifying party is contesting, in good faith, the request for
reimbursement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement (1) includes an unconditional release of such
indemnified party in form and substance satisfactory to such indemnified party
from all liability on Claims that are the subject matter of such proceeding and
(2) does not include any statement as to an admission of fault, culpability or
failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in paragraph (a)
or (b) of this Section 4 is unavailable (other than by reason of the exceptions
specifically provided therein) to, or insufficient to hold harmless, an
indemnified party in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraphs, in
lieu of indemnifying such indemnified party thereunder and in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect (i) the relative
benefits received
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by the Company on the one hand and the Holders on the other hand from the
offering of such Registrable Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, not only such relative
benefits but also the relative fault of the Company on the one hand and the
Holders on the other in connection with the statements or omissions (or alleged
statements or omissions) that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand and
the Holders on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Holders and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances.
(e) The parties agree that it would not be just and
equitable if contribution pursuant to this Section 4 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses actually incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 4, in no event shall
a Holder be required to contribute any amount in excess of the amount by which
proceeds received by such Holder from sales of Registrable Securities exceeds
the amount of any damages that such Holder has otherwise been required to pay
or has paid by reason of such untrue or alleged untrue statement or omission or
alleged omission. 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.
(f) The indemnity and contribution agreements contained
in this Section 4 will be in addition to any which the indemnifying parties may
otherwise have to the indemnified parties referred to above.
Section 5. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not
entered into nor will the Company on or after the date of this Agreement enter
into, or cause or permit any of its subsidiaries to enter into, any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
(b) Adjustments Affecting Registrable Securities. The
Company shall not, directly or indirectly, take any action with respect to the
Registrable Securities as a class that would adversely affect the ability of
the Holders of Registrable Securities to include such Registrable Securities in
a registration undertaken pursuant to this Agreement.
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(c) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given unless the Company
has obtained the prior written consent of Holders of not less than a majority
of the outstanding Warrants and/or Registrable Securities; provided, however,
that Section 4 hereof and this Section 5(c) may not be amended, modified or
supplemented without the prior written consent of each Holder (including any
Person who was a Holder of Registrable Securities disposed of pursuant to any
Registration Statement). Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Securities whose securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect, impair, limit or compromise the rights of other Holders
of Registrable Securities may be given by the Holders of not less than a
majority of the Registrable Securities proposed to be sold by such Holders
pursuant to such Registration Statement. In addition, each such amendment,
modification, supplement and waiver must be agreed to in writing by the
company.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, telex, telecopier, or any courier guaranteeing
overnight delivery (i) if to a Holder at the most current address of such
Holder as set forth in the register for the Warrants or the Warrant Shares,
which address initially is, with respect to the Initial Purchasers, the address
set forth in the Purchase Agreement and (ii) if to the Company, initially at
the Company's address set forth in the Purchase Agreement and thereafter at
such other address, notice of which is given in accordance with the provisions
of this Section (d).
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied;
and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
(e) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties hereto and the Holders; provided, however, that this Agreement shall
not inure to the benefit of or be binding upon a successor or assign of a
Holder unless such successor or assign holds Registrable Securities.
(f) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇
-▇▇-
▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES
HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(j) Third Party Beneficiary. The Holders are intended
third party beneficiaries of this Agreement and this Agreement may be enforced
by such Persons.
(k) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Warrant Agreement, is intended by the parties as a
final expression of their agreement, and is 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 and therein. This Agreement, the
Purchase Agreement and the Warrant Agreement supersede all prior agreements and
understandings between the parties with respect to such subject matter.
(l) Securities Held by the Company or Its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities or Warrants is required hereunder, Registrable
Securities or Warrants held by the Company or by any of its affiliates (as such
term is defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the holders of such
required percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PACKAGED ICE, INC.
By:
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By:
--------------------------------
Name:
Title:
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