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EXHIBIT 10.17
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 17, 1997
relating to
$100,000,000 in Aggregate Principal Amount
of 5 3/4% Convertible Subordinated
Notes due 2004
by and between
Personnel Group of America, Inc.
and
Xxxxx Xxxxxx Inc.,
PaineWebber Incorporated
X. X. Xxxxxxxx & Co.
The Xxxxxxxx-Xxxxxxxx Company, Inc.
and
NationsBanc Capital Markets, Inc.
as Initial Purchasers
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This Registration Rights Agreement (the "Agreement") is made
and entered into as of June 17, 1997, by and between Personnel Group of America,
Inc, a Delaware corporation (the "Company"), and Xxxxx Xxxxxx Inc., PaineWebber
Incorporated, X.X. Xxxxxxxx & Co., The Xxxxxxxx-Xxxxxxxx Company, Inc. and
NationsBanc Capital Markets, Inc. (the "Initial Purchasers"), who will purchase
$100,000,000 in aggregate principal amount of 5 3/4% Convertible Subordinated
Notes due 2004 (the "Notes") of the Company (excluding up to an additional
$15,000,000 in aggregate principal amount that may be purchased by the Initial
Purchasers pursuant to their over-allotment option) pursuant to the Purchase
Agreement dated June 17, 1997 (the "Purchase Agreement"), between the Company
and the Initial Purchasers. In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the obligations of the Initial Purchasers set forth in the
Purchase Agreement. All defined terms used but not defined herein shall have the
meanings ascribed to them in the Indenture (as defined herein).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Advice: As defined in Section 5(r).
Closing Date: The date on which all the Notes are first sold
by the Company to the Initial Purchasers pursuant to the Purchase Agreement.
Commission: The Securities and Exchange Commission.
Common Stock: The Common Stock, par value $.01 per share, of
the Company.
Damages Payment Date: With respect to the Notes or the Common
Stock, as applicable, each Interest Payment Date as defined in the Indenture.
Effectiveness Target Date: As defined in Section 4.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Notes to (i) certain "qualified institutional
buyers" (as such term is defined in Rule 144A under the Act), (ii) to certain
non U.S. persons in offshore transactions in reliance on Regulation S under the
Act and (iii) to a limited number of institutional "accredited investors" as
defined in Rule 501(a)(1), (2), (3) or (7).
Holders: As defined in Section 2(b).
Indenture: The Indenture, to be dated as of June 17, 1997,
among the Company and First Union National Bank, as trustee (the "Trustee"),
pursuant to which the Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture.
NASD: National Association of Securities Dealers, Inc.
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Offering Memorandum: The Offering Memorandum, dated June 17,
1997, and all amendments and supplements thereto, relating to the Notes and
prepared by the Company pursuant to the Purchase Agreement.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
Preliminary Prospectus: As defined in Section 3(g).
Prospectus: The prospectus included in the Shelf Registration
Statement, as amended or supplemented by any Prospectus Supplement with respect
to the terms of the offering of any portion of the Transfer Restricted
Securities (as defined herein) covered by the Shelf Registration Statement and
by all other amendments and supplements to the prospectus, including
post-effective amendments, and all material which may be incorporated by
reference into such prospectus.
Prospectus Supplement: As defined in Section 5(b).
Record Holder: (i) With respect to any Damages Payment Date
relating to the Notes, each Person who is registered on the books of the
Registrar as the holder of Notes on the record date with respect to the Interest
Payment Date on which such Damages Payment Date shall occur and (ii) with
respect to any Damages Payment Date relating to the Common Stock, each Person
who is a holder of record of such Common Stock fifteen days prior to the Damages
Payment Date.
Registration Default: As defined in Section 4(a).
Registration Expenses: As defined in Section 6(a).
Shelf Registration Statement: As defined in Section 3(a)
hereof.
Suspension Period: As defined in Section 3(a).
TIA: The Trust Indenture Act of 1939, as amended (15 U.S.C.
Section 77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note and share of Common
Stock of the Company issuable upon conversion of a Note, until each such Note or
share (i) has been effectively registered under the Securities Act and disposed
of in accordance with the Shelf Registration Statement covering it, (ii) is
distributed to the public pursuant to Rule 144 or (iii) may be sold or
transferred pursuant to Rule 144(k) (or any similar provisions then in force)
under the Securities Act or otherwise.
Underwriter: Any underwriter, placement agent, selling broker,
dealer manager, qualified independent underwriter or similar securities
industry professional.
Underwritten Registration or Underwritten Offering: An
offering in which securities of the Company are sold to an Underwriter or with
the assistance of such Underwriter for reoffering to the public on a firm
commitment or best efforts basis.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to
the benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a "Holder")
whenever such Person owns Transfer Restricted Securities.
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SECTION 3. SHELF REGISTRATION
(a) The Company shall cause to be filed with the Commission as
soon as practicable but in any event on or prior to 30 days after the Closing
Date, a shelf registration statement pursuant to Rule 415 under the Act (as may
then be amended) (the "Shelf Registration Statement") on Form S-1 or Form S-3,
if the use of such form is then available and as determined by the Company, to
cover resales of Transfer Restricted Securities by the Holders thereof who
satisfy certain conditions relating to the provision of information in
connection with the Shelf Registration Statement. In order for their Transfer
Restricted Securities to be included in the Shelf Registration Statement, the
Holders of such Transfer Restricted Securities shall have provided the
representations required pursuant to Section 3(g) hereof. The Company shall use
its reasonable best efforts to cause such Shelf Registration Statement to be
declared effective by the Commission on or prior to 120 days from the Closing
Date. The Company shall use its reasonable best efforts to keep such Shelf
Registration Statement continuously effective for a period ending two years from
the effective date thereof or such shorter period that will terminate when each
of the Transfer Restricted Securities covered by the Shelf Registration
Statement shall cease to be a Transfer Restricted Security. The Company further
agrees to use its reasonable best efforts to prevent the happening of any event
that would cause the Shelf Registration Statement to contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or to
be not effective and usable for resale of the Transfer Restricted Securities
during the period that such Shelf Registration Statement is required to be
effective and usable.
Upon the occurrence of any event that would cause the Shelf
Registration Statement (i) to contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading or (ii) to be not effective and usable for
resale of Transfer Restricted Securities during the period that such Shelf
Registration Statement is required to be effective and usable, the Company shall
as promptly as practicable file an amendment to the Shelf Registration
Statement, in the case of clause (i), correcting any such misstatement or
omission, and in the case of either clause (i) or (ii), use its best efforts to
cause such amendment to be declared effective and such Shelf Registration
Statement to become usable or to obtain withdrawal of any order suspending
effectiveness as soon as practicable thereafter.
Notwithstanding anything to the contrary in this Section 3,
subject to compliance with Sections 4 and 5(b), if applicable, the Company may
prohibit offers and sales of Transfer Restricted Securities pursuant to the
Shelf Registration Statement at any time if (A) (i) it is in possession of
material non-public information, (ii) the Board of Directors of the Company or
the Executive Committee thereof determines (based on advice of counsel) that
such prohibition is necessary in order to avoid a requirement to disclose such
material non-public information and (iii) the Board of Directors of the Company
or the Executive Committee thereof determines in good faith that disclosure of
such material non-public information would not be in the best interests of the
Company and its stockholders or (B) the Company has made a public announcement
relating to an acquisition or business combination transaction including the
Company and/or one or more of its subsidiaries (i) that is material to the
Company and its subsidiaries taken as a whole and (ii) the Board of Directors of
the Company or the Executive Committee thereof determines in good faith that
offers and sales of Transfer Restricted Securities pursuant to the Shelf
Registration Statement prior to the consummation of such transaction (or such
earlier date as the Board of Directors or the Executive Committee thereof shall
determine) is not in the best interests of the Company and its stockholders (the
period during which any such prohibition of offers and sales of Transfer
Restricted Securities pursuant to the Shelf Registration Statement is in effect
pursuant to clause (A) or (B) of this subparagraph (a) is referred to herein as
a "Suspension Period"). A Suspension Period shall commence on and include the
date on which the Company provides written notice to Holders of Transfer
Restricted Securities covered by the Shelf Registration Statement that offers
and sales of Transfer Restricted Securities cannot be made thereunder in
accordance with this Section 3 and shall end on the date on which each Holder of
Transfer Restricted Securities covered by the Shelf Registration Statement
either receives copies of a Prospectus Supplement contemplated by Section 5(b)
or is advised in writing by the Company that offers and sales of Transfer
Restricted Securities pursuant to the Shelf Registration Statement and use of
the Prospectus may be resumed.
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(b) Neither the Company nor any of its security holders (other
than the Holders of Transfer Restricted Securities in such capacity and other
stockholders having registration rights permitting them to participate therein,
as disclosed in the Offering Memorandum) shall have the right to include any of
the Company's securities in the Shelf Registration Statement.
(c) If the Holders of a majority of the outstanding Transfer
Restricted Securities so elect (with holders of Common Stock constituting
Transfer Restricted Securities being deemed to be Holders of the aggregate
principal amount of Notes converted into such Common Stock for purposes of such
calculation), an offering of Transfer Restricted Securities pursuant to the
Shelf Registration Statement may be effected in the form of an Underwritten
Offering. The Holders of the Transfer Restricted Securities to be registered
shall pay all underwriting discounts and commissions of such Underwriters.
(d) If any of the Transfer Restricted Securities covered by
the Shelf Registration Statement are to be sold in an Underwritten Offering, the
Underwriter(s) that will administer the offering will be selected by the Holders
of a majority of the outstanding Transfer Restricted Securities (with holders of
Common Stock constituting Transfer Restricted Securities being deemed to be
Holders of the aggregate principal amount of Notes converted into such Common
Stock for purposes of such calculation); provided, however, that such
Underwriter(s) shall be reasonably satisfactory to the Company.
(e) Each Holder whose Transfer Restricted Securities are
covered by a Shelf Registration Statement filed pursuant to this Section 3
agrees, upon the request of the Underwriter(s) in any Underwritten Offering, not
to effect any sale or distribution of securities of the Company of the same
class as the securities included in such Shelf Registration Statement, for a
period of up to 90 days beginning on the date any such Underwritten Offering
made pursuant to such Shelf Registration Statement commences, to the extent
timely notified in writing by such Underwriter(s).
(f) The Company agrees not to effect any public or private
offer, sale or distribution of Securities of the same quality and nature as the
Transfer Restricted Securities to be registered in an Underwritten Offering
during the 90-day period beginning on the date any such Underwritten Offering
made pursuant to the Shelf Registration Statement commences, to the extent
timely notified in writing by the Underwriter(s) (except as part of such
registration, if permitted, or pursuant to registrations on Forms S-4 or S-8 or
any successor form to such Forms), unless the Underwriter(s) shall consent in
writing to a shorter period of time; provided, however, that any such agreement
shall permit (A) the issuance by the Company of any shares of Common Stock
issued to employees of the Company or to any other eligible person pursuant to
any employee stock option plan, stock ownership plan, stock bonus plan or stock
compensation plan of the Company in effect on the date of such Underwritten
Offering, (B) the issuance by the Company of Common Stock upon the conversion of
securities, or the exercise of options outstanding at the date of such
Underwritten Offering and (C) the issuance by the Company of shares of Common
Stock during such 90-day period in connection with acquisitions, provided that
any shares of Common Stock issued in acquisitions accounted for under the
purchase method of accounting are contractually restricted from resale for at
least the duration of such 90-day period.
(g) No Holder of Transfer Restricted Securities may include
any of its Transfer Restricted Securities in any Shelf Registration Statement
pursuant to this Agreement unless such Holder furnishes to the Company in
writing, within 10 business days after receipt of a request therefor, such
information as the Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus (a
"Preliminary Prospectus") included therein.
SECTION 4. LIQUIDATED DAMAGES
(a) If (i) the Shelf Registration Statement is not filed with
the Commission on or prior to 30 days after the Closing Date, (ii) the Shelf
Registration Statement has not been declared effective by the Commission within
120 days after the Closing Date (the "Effectiveness Target Date"), or (iii) the
Shelf Registration Statement is filed and declared effective but shall
thereafter cease to be effective (without being succeeded immediately by an
additional registration statement filed and declared effective) or useable for
the
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offer and sale of Transfer Restricted Securities for a period of time (including
any Suspension Period) which shall exceed 60 days in the aggregate in any of the
one-year periods ending on the first and second anniversaries of the Closing
Date (30 days in the case of the one-year period ending on the first anniversary
of the Closing Date), or which shall exceed 30 days in any calendar quarter
within any of such one-year periods (each such event referred to in clauses (i)
through (iii), a "Registration Default"), the Company will pay as liquidated
damages and not as a penalty the amounts set forth herein to each Holder of
Transfer Restricted Securities who has complied with such Holder's obligations
under this Agreement. The amount of liquidated damages payable during any period
during which a Registration Default shall have occurred and be continuing is
that amount which is equal to one-quarter of one percent (25 basis points) per
annum per $1,000 principal amount of Notes or $2.50 per annum per 28.0702 shares
of Common Stock (subject to adjustment in the event of stock splits, stock
recombinations, stock dividends and the like) constituting Transfer Restricted
Securities for each 90-day period or part thereof until the applicable
registration statement is filed and the applicable registration statement is
declared effective, or the Shelf Registration Statement again becomes effective
or usable, as the case may be, up to a maximum amount of liquidated damages of
$0.25 per week per $1,000 principal amount of Notes or $12.50 per annum per
28.0702 shares of Common Stock (subject to adjustment as set forth above)
constituting Transfer Restricted Securities. The Company shall notify the
Trustee and the Initial Purchasers within three business days after each and
every date on which a Registration Default initially occurs. All accrued
liquidated damages shall be paid to Record Holders by wire transfer of
immediately available funds or by federal funds check by the Company on each
Damages Payment Date. Following the cure of a Registration Default, liquidated
damages will cease to accrue with respect to such Registration Default.
All of the Company's obligations set forth in the preceding
paragraph which are outstanding with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such security
shall have been satisfied in full.
The parties hereto agree that the Holders will suffer damages,
and that it would not be feasible to ascertain the extent of such damages with
precision, and the liquidated damages provided in this Section 4 constitute a
reasonable estimate of the damages that will be incurred by Holders of Transfer
Restricted Securities by reason of the failure of the Shelf Registration
Statement to be filed, declared effective or to remain effective, as the case
may be.
SECTION 5. REGISTRATION PROCEDURES
In connection with the Shelf Registration Statement, the
Company will use its best efforts to effect such registration to permit the sale
of the Transfer Restricted Securities being sold in accordance with the intended
method or methods of distribution or disposition thereof, and pursuant thereto
the Company will as expeditiously as possible after the Closing Date:
(a) on or prior to the date 30 days after the Closing Date,
prepare and file with the Commission a Shelf Registration Statement relating to
the registration on Form S-1 or Form S-3, if the use of such form is then
available and as determined by the Company, for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof and shall include all financial statements required to be
included or incorporated by reference therein; cooperate and assist in any
filings required to be made with the NASD and use its reasonable best efforts to
cause such Shelf Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the selling
Holders to consummate the disposition of such Transfer Restricted Securities;
provided, however, that before filing a Shelf Registration Statement or any
Prospectus, or any amendments or supplements thereto, the Company will furnish
to the Initial Purchasers, the Holders and the Underwriter(s), if any, copies of
all such documents proposed to be filed (except that the Company shall not be
required to furnish any exhibits to such documents, including those incorporated
by reference, unless so requested by an Initial Purchaser, Holder or Underwriter
in writing), which documents will be subject to the review of the Initial
Purchasers, the Holders and the Underwriters, if any, and the Company will not
file any Shelf Registration Statement or amendment thereto or any Prospectus or
any supplement thereto to which (i) the Initial Purchasers or the
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Underwriter(s), if any, shall reasonably object or (ii) if there are no
Underwriters, the Initial Purchasers or the Holders of a majority of the
outstanding Transfer Restricted Securities shall reasonably object (with holders
of Common Stock constituting Transfer Restricted Securities being deemed to be
Holders of the aggregate principal amount of Notes converted into such Common
Stock for purposes of such calculation), in each such case within five business
days after the receipt thereof. In addition, the Company shall use its best
efforts to reflect in each such document referenced in this paragraph so filed
with the Commission such reasonable comments as the Initial Purchasers and the
Underwriters, if any, may propose. An Initial Purchaser, Holder or Underwriter,
if any, shall be deemed to have reasonably objected to such filing if the Shelf
Registration Statement, amendment, Prospectus or supplement, as applicable, as
proposed to be filed contains any untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading which misstatement or omission is specifically
identified to the Company in writing within such five business days;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may be
necessary to keep the Shelf Registration Statement continuously effective for
the applicable period set forth in Section 3(a) hereof; cause the Prospectus to
be supplemented by any required supplement thereto (a "Prospectus Supplement"),
and as so supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with the applicable provisions of Rules 424 and 430A under the Act
in a timely manner; comply with the provisions of the Act with respect to the
disposition of all securities covered by such Shelf Registration Statement
during the applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in such Shelf Registration
Statement, Prospectus or Prospectus Supplement; and provide that any Shelf
Registration Statement and any amendment thereto and any Prospectus forming a
part thereof and any amendment or supplement thereto complies in all material
respects with the Act and the rules and regulations thereunder, and use its
reasonable best efforts to provide that (i) any Shelf Registration Statement and
any amendment thereto does not, when it becomes effective, 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 not misleading and
(ii) any Prospectus forming part of any Shelf Registration Statement and any
amendment or supplement to such Prospectus, does not include an untrue statement
or a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except to the extent any such untrue statement or omission
in any such Shelf Registration Statement or Prospectus is based upon information
furnished in writing to the Company by any of the Initial Purchasers or any
Holder or any controlling person (as defined below) expressly for use therein;
(c) if requested by the Holders of Transfer Restricted
Securities, or if the Transfer Restricted Securities are being sold in an
Underwritten Offering, the Underwriter(s) of such Underwritten Offering,
promptly incorporate in the Prospectus, any Prospectus Supplement or
post-effective amendment to the Shelf Registration Statement such information as
the Underwriters and/or the Holders of Transfer Restricted Securities being sold
agree should be included therein, including, without limitation, information
with respect to the principal amount of Notes and/or the number of shares of
Common Stock being sold to such Underwriter(s), the purchase price being paid
therefor and any other terms with respect to the offering of the Transfer
Restricted Securities to be sold in such offering; and make all required filings
of such Prospectus, Prospectus Supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be incorporated in
such Prospectus, Prospectus Supplement or post-effective amendment;
(d) advise the Initial Purchasers, the Underwriter(s), if any,
and selling Holders promptly and, if requested by such Persons, to confirm such
advice in writing, (i) when the Prospectus or any Prospectus Supplement or
post-effective amendment to the Shelf Registration Statement has been filed with
the Commission, and, with respect to the Shelf Registration Statement or any
post-effective amendment thereto, when the same has become effective, (ii) of
any request by the Commission or any other federal or state governmental
authority for amendments to the Shelf Registration Statement or amendments or
supplements to the Prospectus or for additional information relating thereto,
(iii) of the issuance by the Commission or any other federal or state
governmental authority of any stop order suspending the effectiveness of the
Shelf Registration Statement under the Act or of the suspension by any state
securities commission of the qualification
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of the Transfer Restricted Securities for offering or sale in any jurisdiction,
or the initiation or threatening of any proceeding for any of the preceding
purposes, (iv) if at any time the representations and warranties of the Company
contemplated by paragraph (l)(i) below cease to be true and correct, (v) of the
existence of any fact and the happening of any event that makes any statement of
a material fact made in the Shelf Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes in
the case of the Shelf Registration Statement in order that 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 the Prospectus, 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 the light
of the circumstances under which they were made, not misleading, and (vi) of the
Company's determination that a post-effective amendment to the Shelf
Registration would be appropriate. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Shelf Registration Statement, or
any state securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, the
Company shall use their reasonable best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(e) furnish to each Initial Purchaser, each Holder and each of
the Underwriter(s), if any, without charge, at least one conformed copy of the
Shelf Registration Statement, as first filed with the Commission, and of each
amendment thereto (including financial statements but excluding documents
incorporated by reference therein and exhibits thereto unless requested by such
Initial Purchaser, Holder or Underwriter);
(f) deliver to each Initial Purchaser, each selling Holder and
each of the Underwriter(s), if any, without charge, as many copies of any
Preliminary Prospectus and the Prospectus and any amendments or supplements
thereto as such Persons may reasonably request; the Company consents to the use
of any Preliminary Prospectus and the Prospectus and any amendments or
supplements thereto by each of the selling Holders and each of the
Underwriter(s), if any, in connection with the public offering and the sale of
the Transfer Restricted Securities covered by any Preliminary Prospectus and the
Prospectus or any amendments or supplements thereto;
(g) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the Underwriter(s), if any, and
their respective counsel in connection with the registration and qualification
(or exemption therefrom) of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling Holders or
Underwriter(s) may request, keep each such registration or qualification (or
exemption therefrom) effective during the period such Shelf Registration
Statement is required to be kept effective and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdiction of
the Transfer Restricted Securities covered by the Shelf Registration Statement;
provided, however, that the Company shall not be required (i) to register or
qualify as a foreign corporation where it is not now so qualified or (ii) to
take any action that would subject it to the service of process in suits, other
than as to matters and transactions relating to the Shelf Registration
Statement, in any jurisdiction where it is not now so subject;
(h) cooperate with the selling Holders and the Underwriter(s),
if any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legend, if appropriate; and enable such Transfer Restricted
Securities to be in such denominations and registered in such names as the
Holders or the Underwriter(s), if any, may request at least two business days
prior to any sale of Transfer Restricted Securities;
(i) use its best efforts to cause the Transfer Restricted
Securities covered by the Shelf Registration Statement to be registered with or
approved by such other governmental agencies or authorities in addition to the
Commission as may be necessary to enable the seller or sellers thereof or the
Underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (g) above;
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(j) if any fact or event contemplated by clause (d)(v) or
(d)(vi) above shall exist or have occurred, promptly prepare and file a
post-effective amendment or supplement to the Shelf Registration Statement or
related Prospectus or any document incorporated therein by reference or file any
other required document (such as a Current Report on Form 8-K) that would be
incorporated by reference into the Shelf Registration Statement so that the
Shelf Registration Statement shall not contain any untrue statement of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and so that the Prospectus will not contain any untrue
statement of a material fact or omit to state any material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, as thereafter delivered to the purchasers of the Transfer
Restricted Securities being sold thereunder, and in the case of a post-effective
amendment to a Shelf Registration Statement use its best efforts to cause it to
become effective as soon as practicable;
(k) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Shelf Registration Statement
and provide the Trustee under the Indenture and/or the transfer agent for the
Common Stock with certificates for the Transfer Restricted Securities which are
in a form eligible for deposit with the Depository Trust Company;
(l) enter into such agreements (including an underwriting
agreement) and take all such other actions in connection therewith (including,
in the event of an underwritten offering, those reasonably required by the
Underwriters, if any, or the Holders of a majority of the Transfer Restricted
Securities being sold) as may be required in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to the Shelf
Registration Agreement, in connection with an Underwritten Registration, and
whether or not an underwriting agreement is entered into, and if the
registration is an underwritten registration (i) make such representations and
warranties to the Holders and the Underwriter(s) with respect to the business of
the Company and its subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if any,
in each case, in form, substance and scope as they may reasonably request and as
are customarily made by issuers to Underwriters in primary Underwritten
Offerings and covering matters including, but not limited to, those set forth in
the Purchase Agreement; (ii) obtain opinions of counsel for the Company and
updates thereof in customary form and covering matters reasonably requested by
the Underwriter(s) of the type customarily covered in legal opinions to
Underwriters in connection with primary Underwritten Offerings addressed to each
selling Holder and the Underwriter requesting the same and covering the matters
as may be reasonably requested by such Holders and Underwriters and their
counsel; (iii) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants (and, if necessary, any other
certified public accountants of any subsidiary of the Company or any business
acquired or to be acquired by the Company for which financial statements and
financial data are required to be included in the Registration Statement)
addressed to the Underwriters and the selling Holders of Transfer Restricted
Securities (it being understood that the Company will not be required to have
the letters so addressed to the selling Holders of Transfer Restricted
Securities if the Company's independent certified public accountants are
prohibited from addressing the letters to the selling Holders of Transfer
Restricted Securities under SFAS No. 72 or a successor rule), such letters to be
in customary form and covering matters of the type customarily covered in "cold
comfort" letters to Underwriters in connection with primary Underwritten
Offerings; (iv) set forth in full or incorporate by reference in the
underwriting agreement the indemnification provisions and procedures of Section
7 hereof with respect to all parties to be indemnified pursuant to said Section;
and (v) deliver such documents and certificates as may be reasonably requested
by the Holders of the Transfer Restricted Securities being sold, the
Underwriter(s) of such Underwritten Offering and their counsel to evidence
compliance with clause (i) above and with any customary conditions contained in
the underwriting agreement entered into by the Company pursuant to this clause
(l). The above shall be done at or prior to each closing under such underwriting
agreement, as and to the extent required thereunder;
(m) make available at reasonable times and in a reasonable
manner for inspection by a representative of the Holders of the Transfer
Restricted Securities, any Underwriter participating in any disposition pursuant
to such Shelf Registration Statement, and any attorney or accountant retained by
such selling Holders or any of the Underwriters, all financial and other
records, pertinent corporate documents and
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properties of the Company and its subsidiaries and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such Holder, Underwriter, attorney or accountant in connection with such Shelf
Registration Statement prior to its effectiveness, provided, however, that such
representatives, attorneys or accountants shall agree to keep confidential
(which agreement shall be confirmed in writing in advance to the Company if the
Company shall so request) all information, records or documents made available
to such persons which are reasonably in good faith designated by the Company in
writing as confidential unless (i) disclosure of such records, information or
documents is required by court or administrative order (of which the Company
shall have been given prior notice and an opportunity to defend) after the
exhaustion of all appeals therefrom, and to use such information obtained
pursuant to this provision only in connection with the transaction for which
such information was obtained, and not for any other purpose, (ii) disclosure of
such information is required by law (including any disclosure requirements
pursuant to federal securities laws in connection with the filing of any Shelf
Registration Statement or the use of any prospectus preferred to in this
Agreement); (iii) such information becomes generally available to the public
other than as a result of disclosure or failure to safeguard by any such person
or (iv) such information becomes available to any such person from a source
other than the Company and such source is not bound by a confidentiality
agreement;
(n) otherwise comply with all applicable rules and regulations
of the Commission, and make generally available to its security holders, as soon
as practicable, a consolidated earnings statement, which consolidated earnings
statement shall satisfy the provisions of Section 11(a) of the Act (including
Rule 158 thereunder), for the twelve-month period (i) commencing at the end of
any fiscal quarter in which Transfer Restricted Securities are sold to
Underwriters in a firm commitment or best efforts Underwritten Offering or (ii)
if not sold to Underwriters in such an offering, beginning with the first month
of the Company's first fiscal quarter commencing after the effective date of the
Shelf Registration Statement;
(o) cause the Indenture to be qualified under the TIA, and, in
connection therewith, cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute and use its best
efforts to cause the Trustee to execute, all documents as may be required to
effect such changes and all other forms and documents required to be filed with
the Commission to enable such Indenture to be so qualified in a timely manner;
(p) make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the Shelf Registration Statement at
the earliest possible moment;
(q) cause all Transfer Restricted Securities covered by the
Shelf Registration Statement to be listed on each securities exchange or
quotation system on which similar securities issued by the Company are then
listed no later than the date the Shelf Registration Statement is declared
effective, and in connection therewith, to the extent applicable, to make such
filings under the Exchange Act (e.g., the filing of a Registration Statement on
Form 8-A) and to have such filings declared effective thereunder; and cause the
Notes covered by the Shelf Registration Statement to be rated with the
appropriate rating agencies, if so requested by the Holders of a majority in
aggregate principal amount of such Notes or the Underwriters; and
(r) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by any
Underwriter (including any "qualified independent Underwriter" that is required
to be retained in accordance with the rules and regulations of the NASD).
Each Holder as to which any Shelf Registration Statement is
being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading or necessary to cause
such Shelf Registration Statement not to omit a material fact with respect to
such Holder necessary in order to make the statements therein not misleading.
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Each Holder agrees by acquisition of such Transfer Restricted
Securities that, upon receipt of any notice from the Company of the existence of
any fact of the kind described in Section 5(d)(v) or (vi) hereof, such Holder
will forthwith discontinue disposition of Transfer Restricted Securities until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(j) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings with respect to the
Prospectus. If so directed by the Company, each Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities current at the time of receipt of such notice. In the
event Company shall give any such notice, the time period regarding the
effectiveness of the Shelf Registration Statement set forth in Section 3(a)
hereof shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 5(d)(v) or
(vi) hereof to and including the date when each selling Holder covered by such
Shelf Registration Statement shall have received the copies of the supplemented
or amended Prospectus contemplated by Section 5(j) hereof or shall have received
the Advice.
SECTION 6. REGISTRATION EXPENSES
(a) All fees and expenses incident to the Company's
performance of or compliance with this Agreement (the "Registration Expenses")
will be borne by the Company, regardless of whether a Shelf Registration
Statement becomes effective, including without limitation:
(i) all registration and filing fees and expenses (including
filings made with the NASD);
(ii) fees and expenses of compliance with federal securities
or state blue sky laws (including, without limitation, fees and
disbursements of counsel to the Underwriters, if any, in connection
with qualifications of the Transfer Restricted Securities under the
blue sky laws of such jurisdictions as the Underwriters, if any, or
Holders of a majority of the Transfer Restricted Securities being sold
may designate;
(iii) expenses of printing (including, without limitation,
expenses of printing or engraving certificates for the Transfer
Restricted Securities in a form eligible for deposit with the
Depository Trust Company and of printing the Prospectus and any
Preliminary Prospectus), messenger and delivery services and telephone;
(iv) reasonable fees and disbursements of counsel for the
Company and for the Holders of the Transfer Restricted Securities
(subject to the provisions of Section 6(b) hereof);
(v) fees and disbursements of all independent certified public
accountants of the Company (including the expenses of any special audit
and "cold comfort" letters required by or incidental to the preparation
and filing of a Shelf Registration Statement and Prospectus and the
disposition of Transfer Restricted Securities);
(vi) fees and expenses associated with any NASD filing
required to be made in connection with the Shelf Registration
Statement, including, if applicable, the fees and expenses of any
"qualified independent Underwriter" (and its counsel) that is required
to be retained in accordance with the rules and regulations of the
NASD; and
(vii) fees and expenses of listing the Transfer Restricted
Securities on any securities exchange or quotation system in accordance
with Section 5(q) hereof.
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit, rating agency fees and the fees and expenses of any Person, including
special experts, retained by
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the Company. The Holders of Transfer Restricted Securities shall bear the
expense of any broker's commission or Underwriter's discount or commission.
(b) In connection with the Shelf Registration Statement, the
Company will reimburse the Holders of Transfer Restricted Securities being
registered pursuant to such Shelf Registration Statement for the reasonable fees
and disbursements of not more than one counsel chosen by the Holders of a
majority of the outstanding Transfer Restricted Securities and reasonably
acceptable to the Company (with holders of Common Stock constituting Transfer
Restricted Securities being deemed to be Holders of the aggregate principal
amount of Notes converted into such Common Stock for purposes of such
calculation).
Notwithstanding the provisions of this Section 6(b), each
Holder of Transfer Restricted Securities shall pay all Registration Expenses to
the extent required by applicable law.
SECTION 7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i) each
of the Initial Purchasers, (ii) each Holder, (iii) each person, if any, who
controls (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) any of the Initial Purchasers or any Holder (any of the persons
referred to in this clause (iii) being hereinafter referred to as a "controlling
person") and (iv) the respective officers, directors, partners, employees,
representatives and agents of any of the Initial Purchasers or any Holder or any
controlling person (any person referred to in clause (i), (ii), (iii) or (iv)
may hereinafter be referred to as a "Non-Company Indemnitee"), to the fullest
extent lawful, from and against any and all losses, claims, damages, liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigation any such action or claim) and
judgments arising out of or based upon or caused by any untrue statement or
alleged untrue statement of a material fact contained in the Shelf Registration
Statement, Prospectus or Preliminary Prospectus (or any amendments or
supplements thereto), including any document incorporated by reference therein,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except, with respect to any Non-Company Indemnitee, insofar as such
losses, claims, damages, liabilities or judgments (1) are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by such Non-Company Indemnitee
expressly for use therein or (2) with respect to any Preliminary Prospectus,
result from the fact that such Non-Company Indemnity sold Transfer Restricted
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the final Prospectus, as amended or
supplemented, if the Company shall have previously furnished copies thereof to
such Non-Company Indemnitee in accordance with this Agreement and the final
Prospectus, as amended or supplemented, would have corrected such untrue
statement or omission.
(b) In case any proceeding (including any governmental
investigation) shall be brought against any Non-Company Indemnitee, based upon
the Shelf Registration Statement, Prospectus, or Preliminary Prospectus (or any
amendments or supplements thereto), and with respect to which indemnity may be
sought against the Company, such Non-Company Indemnitee shall promptly notify
the Company in writing and the Company shall assume the defense thereof,
including the employment of counsel, reasonably satisfactory to the Non-Company
Indemnitee and payment of all fees and expenses; provided, however, that the
omission so to notify the Company shall not relieve the Company from any
liability that it may have to any Non-Company Indemnitee (except to the extent
that the Company is materially prejudiced or otherwise forfeits substantive
rights or defenses by reason of such failure). Such Non-Company Indemnitee shall
have the right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of counsel shall be paid by such
Non-Company Indemnitee, unless (i) the employment of such counsel shall have
been specifically authorized in writing by the Company, (ii) the Company shall
have failed to assume the defense and employ counsel or shall have employed
counsel not reasonably satisfactory to the Non-Company Indemnitee (iii) the
named parties to any such action (including any impleaded parties) include both
such Non-Company Indemnitee and the Company and it would be inappropriate for
the same counsel to represent such Non-Company Indemnitee and the Company (in
which case the Company shall not have the right to assume the defense of such
action on behalf of such Non-Company Indemnitee, it being understood, however,
that the
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Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for the Non-Company Indemnitees, which firm shall be designated in
writing by the Non-Company Indemnitees and whose fees and expenses reasonably
incurred shall be reimbursed as they are incurred). The Company shall not be
liable for any settlement of any such proceeding effected without the written
consent of the Company, but if settled with the written consent of the Company,
the Company agrees to indemnify and hold harmless any Non-Company Indemnitee
from and against any amounts payable pursuant to such written consent in
connection with such settlement. Notwithstanding the immediately preceding
sentence, if in any case where the fees and expenses of counsel are at the
expense of the Company and a Non-Company Indemnitee shall have requested the
Company to reimburse such Non-Company Indemnitee for such fees and expenses of
counsel as incurred, the Company agrees that it shall be liable for any
settlement of any action effected without its written consent if (i) each
settlement is entered into more than 30 business days after the receipt by the
Company of the aforesaid request and (ii) the Company shall have failed to
reimburse such Non-Company Indemnitee in accordance with such request for
reimbursement prior to the date of such settlement. The Company shall not,
without the prior written consent of such Non-Company Indemnitee, effect any
settlement of any pending or threatened proceeding in respect of which such
Non-Company Indemnitee is or could have been a party and indemnity could have
been sought hereunder by such Non-Company Indemnitee, unless such settlement
includes an unconditional release of such Non-Company Indemnitee from all
liability on claims that are the subject matter of such proceeding.
(c) Each Holder of Transfer Restricted Securities agrees to
indemnify and hold harmless (i) the Company, (ii) each of the Initial
Purchasers, (iii) each other Holder, (iv) any person controlling (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company,
any of the Initial Purchasers and each other Holder and (v) the respective
officers, directors, partners, employees, representatives and agents of each of
the parties referred to in clauses (i), (ii), (iii) and (iv), to the same extent
as the foregoing indemnity from the Company to each of the Non-Company
Indemnitees contained in subparagraph (a) and (b), but only with respect to
information relating to such Holder that was furnished in writing by such Holder
expressly for use in the Shelf Registration Statement (or any amendment or
supplement thereto). In no event shall the liability of any selling Holder
hereunder be greater in amount than the dollar amount of the proceeds received
by such Holder upon the sales of the Transfer Restricted Securities giving rise
to such indemnification obligation.
(d) If the indemnification provided for in this Section 7 is
applicable but unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to herein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments in such proportion as
is appropriate to reflect the relative fault of the indemnifying party, on the
one hand, and the indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party, on the one hand,
and the indemnified party, 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 indemnifying party, on the one hand, or
the indemnified party, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, each of the Initial Purchasers and each Holder of
Transfer Restricted Securities agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The losses, claims, damages, liabilities or judgments of an indemnified party
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim prior to the indemnifying party's
assumption of the defense thereof or subsequent thereto to the extent permitted
by the second sentence
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of Section 7(b) hereof. Notwithstanding the provisions of this Xxxxxxx 0, xxxx
of the Holders shall be required to contribute, in the aggregate, any amount in
excess of the amount by which the total amount received by such Holder with
respect to the sale of Transfer Restricted Securities exceeds the amount of any
damages which such Holder has otherwise been required to pay 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 Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Holders' obligations to contribute
pursuant to this Section 7(d) are several in proportion to the respective
principal amount of Notes held by each of the Holders hereunder and not joint.
SECTION 8. RULE 144A
The Company hereby agrees with each Holder, for so long as any
of the Notes or shares of Common Stock that are Transfer Restricted Securities
remain outstanding and during any such period in which the Company is not
subject to Section 13 or 15(d) of the Exchange Act, to make available to any
Initial Purchaser or any beneficial owner of the Notes or shares of such Common
Stock in connection with any sale thereof and any prospective purchaser of such
Notes or Common Stock from such Initial Purchaser or beneficial owner, the
information required by Rule 144A(d)(4) under the Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A. The Company shall
file the reports required to be filed by it under the Exchange Act and upon the
request of any holder of Transfer Restricted Securities, the Company shall
deliver to such holder a written statement as to whether it has complied with
such filing requirements. Notwithstanding the foregoing, nothing in this Section
8 shall be deemed to require the Company to register any of its securities under
any section of the Exchange Act.
SECTION 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Offering
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements, (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements and (c) furnishes the Company in writing information
in accordance with Section 3(g) and agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act to the extent contemplated by Section 7(c).
SECTION 10. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such Underwritten
Offering, the Underwriter(s) that will administer the offering will be selected
by the Holders of the Transfer Restricted Securities included in such offering
in the manner specified in Section 3(c); provided, however, that such
Underwriters must be reasonably satisfactory to the Company.
SECTION 11. MISCELLANEOUS
(a) Remedies. Each Holder of Transfer Restricted Securities,
in addition to being entitled to exercise all rights provided herein, and as
provided in the Purchase Agreement and granted by law, including recovery of
damages, will be entitled to specific performance of such Holder's rights under
this Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement.
(b) No Inconsistent Agreements. The Company will not on or
after the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders of
Transfer Restricted Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders of Transfer Restricted
Securities hereunder do not in any way conflict with
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and are not inconsistent with the rights granted to the holders of the Company's
securities under any other agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of a majority of the outstanding Transfer Restricted Securities affected by such
amendment, modification, supplement, waiver or departure (with holders of Common
Stock constituting Transfer Restricted Securities being deemed to be Holders of
the aggregate principal amount of Notes converted into such Common Stock for
purposes of such calculation). Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders of Transfer Restricted Securities whose securities are being
sold pursuant to such Shelf Registration Statement and that does not directly or
indirectly affect the rights of other Holders of Transfer Restricted Securities
shall be valid only with the written consent of Holders of at least a majority
of the Transfer Restricted Securities being sold, in each case calculated in
accordance with the provisions of Section 3(c).
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex, telecopier, or
air courier guaranteeing overnight delivery:
(i) if to a Holder of Transfer Restricted Securities,
at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar; and
(ii) if to the Company or an Initial Purchaser,
initially at its 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.
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 acknowledged, if telecopied; and on
the next business day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee
under the Indenture at the address specified in the Indenture.
(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, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder of Transfer Restricted Securities unless
and to the extent such successor or assign acquired Transfer Restricted
Securities from such Holder; and provided further that nothing herein shall be
deemed to permit any assignment, transfer or any disposition of Transfer
Restricted Securities in violation of the terms of the Purchase Agreement. If
any transferee of any Holder shall acquire Transfer Restricted Securities, in
any manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement and by
taking and holding such Transfer Restricted Securities such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(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.
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(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICTS OF LAW RULES THEREOF.
(i) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement together with the other
Operative Documents (as defined in the Purchase Agreement) is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the securities sold pursuant to the Purchase Agreement. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
(k) Owner of Transfer Restricted Securities. The Company will
maintain, or will cause it registrar and transfer agent to maintain, a register
with respect to the Transfer Restricted Securities in which all transfers of
Transfer Restricted Securities of which the company has received notice will be
recorded. The Company may deem and treat the person in whose name the Transfer
Restricted Securities are registered in such register of the Company as the
owner thereof for all purposes, including, without limitation, the giving of
notices under this Agreement.
(l) Further Assurances. Each of the parties hereto shall use
all reasonable efforts to take, or cause to be taken, all appropriate action, do
or cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out this Agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
PERSONNEL GROUP OF AMERICA, INC.
By: /s/ Xxx X. Xxxxxxxx, Xx.
----------------------------------
Xxx X. Xxxxxxxx, Xx.
Senior Vice President of Administration,
General Counsel and Secretary
XXXXX XXXXXX INC.
PAINEWEBBER INCORPORATED
X. X. XXXXXXXX & CO.
THE XXXXXXXX-XXXXXXXX COMPANY, INC.
NATIONSBANC CAPITAL MARKETS, INC.
BY: XXXXX XXXXXX INC.
By: /s/ properly authorized person on behalf of Xxxxx Xxxxxx Inc.
------------------------------------
Name:
Title:
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