EXHIBIT 4.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
BY AND BETWEEN
XXXXXX INTERNATIONAL INC.
AND
RBC XXXX XXXXXXXX INC.
DATED AS OF OCTOBER 10, 2003
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of October 10, 2003, between Xxxxxx International Inc., a
Washington business trust (together with any successor entity, herein referred
to as the "Company"), and RBC Xxxx Xxxxxxxx Inc. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement dated
October 10, 2003, between the Company and the Initial Purchaser (the "Purchase
Agreement"). The Initial Purchaser has agreed to purchase from the Company
$82,500,000 in aggregate principal amount of the Company's 8.5% Convertible
Senior Subordinated Notes due 2010 (the "Notes"). The Notes will be convertible
into fully paid, nonassessable Shares of beneficial interest of the Company, par
value $1.00 per share (the "Shares of Beneficial Interest"), at the conversion
price set forth in the Offering Memorandum, dated October 6, 2003 (the "Offering
Memorandum"). The Notes will be issued pursuant to an Indenture (as defined
herein). To induce the Initial Purchaser to purchase the Notes, 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 closing under the
Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following meanings:
"Action" has the meaning in Section 6(c) hereof.
"Additional Interest" has the meaning in Section 3(a) hereof.
"Affiliate" has the meaning as such term is defined in Rule 405 under
the Securities Act.
"Blue Sky Application" has the meaning in Section 6(a) hereof.
"Broker-Dealer" means any broker or dealer registered under the
Exchange Act.
"Business Day" means a day other than a Saturday or Sunday or any
federal holiday in the United States or any holiday in the Province of British
Columbia, Canada.
"Closing Date" has the meaning set forth in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble hereto.
"Effectiveness Period" has the meaning in Section 2(a) hereof.
"Effectiveness Deadline" has the meaning in Section 2(b) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Filing Deadline" has the meaning in Section 2(a) hereof.
"Holder" means a Person who owns, beneficially or of record, Transfer
Restricted Securities.
"Indemnified Holder" has the meaning in Section 6(a) hereof.
"Indenture" means the Indenture dated as of October 10, 2003, among
the Company and Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "Trustee"),
pursuant to which the Notes are to be issued, as such Indenture is amended,
modified or supplemented from time to time in accordance with the terms thereof.
"Initial Purchaser" has the meaning in the preamble hereto.
"Interest Payment Date" has the meaning in the Indenture. For purposes
of this Agreement, "Interest Payment Date" shall mean each of April 15 and
October 15.
"Majority of Holders" means the Holders holding more than 50% in
aggregate principal amount of the Notes outstanding at the time of
determination; provided, however, that, for purposes of this definition, a
holder of Shares of Beneficial Interest that constitute Transfer Restricted
Securities that were previously issued to such holder upon conversion of Notes
shall be deemed to hold an aggregate principal amount of Notes (in addition to
the principal amount of Notes held by such holder) equal to the product of (x)
the number of such Shares of Beneficial Interest held by such holder and (y) the
conversion price, at the time such Notes were converted, as determined in
accordance with Article 4 of the Indenture.
"NASD" means National Association of Securities Dealers, Inc.
"Notes" has the meaning in the preamble hereto.
"Notice and Questionnaire" means the Selling Securityholder Notice and
Questionnaire in substantially the form attached as Exhibit A hereto.
"Paying Agent" has the meaning set forth in the Indenture.
"Person" means an individual, partnership, limited liability company,
corporation, unincorporated organization, trust, joint venture or a government
or agency or political subdivision thereof.
"Prospectus" means the prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
"Record Holder" means, with respect to any Interest Payment Date, each
Person who is a Holder on the record date with respect to such Interest Payment
Date. In the case of a Holder of Shares of Beneficial Interest issued upon
conversion of the Notes, "Record Holder" shall mean each Person who is a Holder
of Shares of Beneficial Interest that constitute Transfer
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Restricted Securities on the April 1 or October 1 immediately preceding such
Interest Payment Date.
"Registration Default" has the meaning in Section 3(a) hereof.
"Rule 144" means Rule 144 under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Securities" means the Notes and the Shares of Beneficial Interest
into which the Notes are convertible, upon original issuance thereof, and at all
times subsequent thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" has the meaning in Section 2(a) hereof.
"Suspension Period" has the meaning in Section 4(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended to date, and
as in effect on the date the Indenture is qualified under the TIA.
"Transfer Restricted Securities" means each Note and each Share of
Beneficial Interest issuable upon conversion thereof until the earliest to occur
of:
(i) the date on which such Note or such Share of Beneficial Interest
issuable upon conversion thereof has been effectively registered for resale
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement;
(ii) the date on which such Note or such Share of Beneficial Interest
issuable upon conversion thereof (A) has been transferred in compliance with
Rule 144(k) were it not held by an affiliate of the Company or (B) may be sold
or transferred pursuant to Rule 144(k) were it not held by an affiliate of the
Company (or any other similar provision then in force); and
(iii) the date on which such Note or such Share of Beneficial Interest
issuable upon conversion thereof ceases to be outstanding (whether as a result
of redemption, repurchase and cancellation, conversion or otherwise).
"Underwritten Registration or Underwritten Offering" means a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Shelf Registration.
(a) The Company shall prepare and not later than 90 days after the
Closing Date (the "Filing Deadline"), file with the Commission a registration
statement pursuant to Rule 415 under the Securities Act (the "Shelf Registration
Statement"), which shall provide for resales of all Transfer Restricted
Securities held by the Holders that have provided the information required
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pursuant to the terms of Section 2(d) hereof. The Shelf Registration Statement
shall be on Form S-3 under the Securities Act or another appropriate form
permitting registration of such Transfer Restricted Securities for resale by the
Holders in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Company shall use its
commercially reasonable efforts to cause the Shelf Registration Statement to be
declared effective by the Commission as soon as practicable after it is filed
and, in any event, within 180 days after the Closing Date (the "Effectiveness
Deadline").
(b) The Company shall use its commercially reasonable efforts to keep
the Shelf Registration Statement continuously effective, supplemented ad amended
as required by Section 4(b) hereof to the extent necessary to ensure that: (A)
it is available for resales by Holders of Transfer Restricted Securities
entitled to the benefit of this Agreement; (B) conforms with the requirements of
this Agreement and the Securities Act and the rules and regulations of the
Commission promulgated thereunder for a period (the "Effectiveness Period") of
two years from the date of this Agreement or such shorter period that will
terminate when (i) all the Transfer Restricted Securities have been sold
pursuant to the Shelf Registration Statement or (ii) none of the Notes or the
Shares of Beneficial Interest issuable upon conversion of the Notes are Transfer
Restricted Securities.
Notwithstanding any other provision hereof, the Company shall not be obligated
to file a Prospectus with the securities commission or similar regulatory
authority in any of the provinces or territories of Canada.
(c) The Company shall, at least 12 Business Days prior to the date on
which the Shelf Registration Statement becomes effective, provide written notice
to each Record Holder (which notice shall be accompanied by a copy of a Notice
and Questionnaire to be completed by such Record Holder) that the Company has
filed the Shelf Registration Statement pursuant to this Agreement and that the
Holder must complete and return the enclosed Notice and Questionnaire in
accordance with this Section 2(c) in order to be named as a selling
securityholder in the Shelf Registration Statement and Prospectus. Each Holder
agrees that if such Holder wishes to sell Transfer Restricted Securities
pursuant to the Shelf Registration Statement and Prospectus, it will deliver a
Notice and Questionnaire as promptly as practicable upon receipt of such notice
from the Company but in no event later than the 7 Business Days after receiving
the Notice and Questionnaire or 5 Business Days before effectiveness, whichever
is later. Any Holder that does not complete a Notice and Questionnaire and
deliver it to the Company as required above shall not be named as a selling
securityholder in the Shelf Registration Statement or the Prospectus; provided,
however, that if a Record Holder does not receive written notice directly from
the Company as required by this Section 2(c) within the time period required by
this Section 2(c), then, if any such Record Holder furnishes a Notice and
Questionnaire to the Company at least five (5) Business Days prior to any
intended distribution of Transfer Restricted Securities under the Shelf
Registration Statement, such Holder shall be named in the Shelf Registration
Statement and the related Prospectus as a selling securityholder by way of a
post-effective amendment to the Shelf Registration Statement and a supplement to
the Prospectus to be filed in accordance with the provisions of this Section
2(c). The Company shall include in the Shelf Registration Statement at the time
it is first declared effective, the name of each Holder that provided a Notice
and Questionnaire to the Company in accordance with this Section 2(c), and from
and after the date the Shelf Registration Statement is initially declared
effective, the Company shall use
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commercially reasonable efforts to file with the Commission, as promptly as
practicable after the date a Notice and Questionnaire is delivered to the
Company, if required by this Section 2(c) or by applicable law, a post-effective
amendment to the Shelf Registration Statement or prepare and, if required by
this Section 2(c) or by applicable law, file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other document required under the Securities Act so that
the Holder delivering such Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and the Prospectus in such a
manner as to permit such Holder to deliver such Prospectus to purchasers of the
Transfer Restricted Securities in accordance with applicable law. If the Company
files a post-effective amendment to the Shelf Registration Statement, the
Company shall use commercially reasonable efforts to cause such post-effective
amendment to be declared effective under the Securities Act as promptly as is
practicable. Any Holder who, subsequent to the date the Shelf Registration
Statement is declared effective, provides a Notice and Questionnaire required by
this Section 2(c) pursuant to the provisions of this Section (whether or not
such Holder has supplied the Notice and Questionnaire at the time the Shelf
Registration Statement was declared effective) shall be named as a selling
securityholder in the Shelf Registration Statement and Prospectus in accordance
with the requirements of this Section 2(c); provided, however, that the Company
shall not be obligated to file more than one post-effective amendment or
supplement in any 25 day-period following the date the Shelf Registration
Statement is declared effective for the purpose of naming Holders as selling
securityholders who are not named in such Shelf Registration Statement at the
time of effectiveness. Each Holder as to which the Shelf Registration Statement
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make information previously furnished to
the Company by such Holder not materially misleading.
3. Additional Interest Under Certain Circumstances.
(a) Additional Interest ("Additional Interest") with respect to the
Transfer Restricted Securities shall be assessed as follows if any of the
following events occur (each such event referred to in clauses (i) through (iii)
below, a "Registration Default"):
(i) the Shelf Registration Statement has not been filed with the
Commission prior to or on the Filing Deadline;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the Effectiveness Deadline;
or
(iii) subject to Section 4(b) hereof, the Shelf Registration
Statement is declared effective by the Commission but (A) during the
Effectiveness Period thereafter ceases to be effective or (B) the
Shelf Registration Statement or the Prospectus ceases to be usable in
connection with resales of Securities during the periods specified
herein and (1) the Company does not cause the Shelf Registration
Statement to become effective within five Business Days after it has
ceased to be effective by a post-effective amendment or a report filed
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act; or (2) after the 60th consecutive day in any 90-day
period or the 95th day in any
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365-day period, as the case may be, of any Suspension Period, the
suspension referred to in Section 4(b)(i) hereof has not been
terminated.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company or pursuant to operation of law or as a result of any
action or inaction by the Commission.
Additional Interest shall accrue to each Record Holder on the Transfer
Restricted Securities from and including the day on which the Registration
Default occurs up to but excluding the day on which the Registration Default has
been cured, at a rate of 0.5% per annum on the amount of Transfer Restricted
Securities (such amount determined as described below); provided, however,
Additional Interest on the Transfer Restricted Securities may not accrue under
more than one of the foregoing clauses (i), (ii) or (iii) at any one time;
provided, further, however, that (1) upon the filing of the Shelf Registration
as required hereunder (in the case of clause (a)(i) of this Section 3), (2) upon
the effectiveness of the Shelf Registration as required hereunder (in the case
of clause (a)(ii) of this Section 3) or (3) upon the effectiveness of a Shelf
Registration which had ceased to remain effective (in the case of clause
(a)(iii) of this Section 3), Additional Interest on the Transfer Restricted
Securities as a result of such clause (or the relevant subclause thereof), as
the case may be, shall cease to accrue. It is understood and agreed that,
notwithstanding any provision to the contrary: (x) so long as any Transfer
Restricted Security is then covered by an effective Shelf Registration
Statement, no Additional Interest shall accrue on such Transfer Restricted
Security; and (y) Additional Interest shall cease to accrue on any Transfer
Restricted Security at the time the said security ceases to be a Transfer
Restricted Security.
(b) Notwithstanding anything to the contrary herein, a Holder will not
be entitled to Additional Interest under clause 2(a)(ii) above if such Holder
has not provided all registration information to us as required in Section 2(d)
at least five Business Days prior to the effective date of the Shelf
Registration Statement or any subsequent amendment thereto (with respect to any
period subsequent to such amendment and prior to the next amendment in respect
of which such information is provided to us). No Additional Interest will be
payable to Holders of Securities purchased in transactions covered by the Shelf
Registration Statement or previously sold in transactions exempt from the
registration requirements of the Securities Act in accordance with Rule 144.
(c) The amount of Transfer Restricted Securities shall be determined
as follows (x) with respect to the Notes, the aggregate principal amount of all
such Notes outstanding, (y) with respect to the Shares of Beneficial Interest
into which the Notes have been converted, the aggregate number of such Shares of
Beneficial Interest outstanding multiplied by the Conversion Price (as defined
in the Indenture) at the time such Notes were converted, or, if no Notes are
then outstanding, the last Conversion Price that was in effect under the
Indenture when the Notes were last outstanding, and (z) with respect to
combinations thereof, the sum of (x) and (y) for the relevant Transfer
Restricted Securities. The amount of Additional Interest will be determined on
the basis of a 360-day year comprised of twelve 30-day months and the actual
number of days on which Additional Interest accrued during such period.
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(d) Any accrued Additional Interest shall be paid in cash in arrears
to Record Holders by the Company on each Interest Payment Date by way of a
deposit of immediately available funds, sufficient to pay such accrued
Additional Interest, with the Paying Agent.
The Additional Interest set forth above shall be the exclusive
monetary remedy available to the Holders of Transfer Restricted Securities for
Registration Defaults.
4. Registration Procedures.
In connection with the Shelf Registration Statement contemplated by
Section 2 hereof, the Company shall:
(a) use commercially reasonable 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 thereof, and pursuant
thereto and in accordance with Section 2(a) hereof, shall prepare and file with
the Commission a Shelf Registration Statement relating to the registration on
any appropriate form under the Securities Act;
(b) upon the occurrence of any event or discovery of any facts of the
kind described in clauses (ii) through (iv) of Section 4(d) during the
Effectiveness Period, as promptly as practicable after the occurrence of such an
event, use commercially reasonable efforts to ensure that the use of the
Prospectus may be resumed, including, without limitation, preparing and filing a
post-effective amendment to the Shelf Registration Statement or an amendment or
supplement to the Prospectus or any document incorporated therein by reference
and any other required document so that, as thereafter delivered to the Holders
or purchasers of Securities, neither the Registration Statement nor the
Prospectus will contain an 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 case of the Prospectus, in light of the circumstances
under which they were made) not misleading. Notwithstanding the foregoing, the
Company may suspend the availability of the Shelf Registration Statement,
without being required to pay any Additional Interest, upon written notice to
the Holders (which notice shall be accompanied by an instruction to suspend the
use of the Prospectus), for one or more periods not to exceed 60 consecutive
days in any 90-day period, and not to exceed, in the aggregate, 95 days in any
365-day period (each such period, a "Suspension Period") if:
(i) an event occurs and is continuing that, in the Company's good
faith judgment, would require the Company to make changes in the Shelf
Registration Statement or the Prospectus in order that the Shelf
Registration Statement or the Prospectus does 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
the case of the Prospectus, in light of the circumstances under which
they were made) not misleading; and
(ii) the Company reasonably determines that the disclosure of
such event at such time would have a material adverse effect on the
business of the Company (and its subsidiaries, if any, taken as a
whole);
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(c) 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 effective during the
Effectiveness Period (which may, to the extent applicable in compliance with the
Securities Act, be effected by filings under the Exchange Act as contemplated by
Item 12(b) of Form S-3 under the Securities Act); cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the Securities Act in a
timely manner; and comply with the provisions of the Securities Act with respect
to the disposition of all securities covered by the Shelf Registration Statement
during the applicable period in accordance with the intended method or methods
of distribution by the selling securityholders set forth in the Shelf
Registration Statement or supplement to the Prospectus;
(d) notify the underwriter(s), if any, and the Holders promptly (but
in any event within five Business Days) and, if requested by such Persons,
confirm such advice in writing:
(i) when the Shelf Registration Statement, the Prospectus or any
amendment, supplement or post-effective amendment thereto has been
filed, 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 for post-effective
amendments or supplements to the Shelf Registration Statement or
Prospectus or for additional information relating thereto after a
Registration Statement has become effective;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement under
the Securities Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted Securities
for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes; or
(iv) of the existence of any fact or the happening of any event,
during the Effectiveness Period, 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 Shelf Registration Statement or
the Prospectus in order to make the statements therein (in the case of
the Prospectus, in light of the circumstances under which they were
made) not misleading;
(e) 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, use commercially
reasonable efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
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(f) furnish to the Initial Purchaser prior to the filing with the
Commission, a copy of the Shelf Registration Statement and copies of any
Prospectus included therein, and in the event that the Initial Purchaser (with
respect to any portion of an unsold allotment from the original offering) is
participating in the Shelf Registration Statement, shall use its commercially
reasonable efforts to reflect in each such document, when so filed with the
Commission, such comments that the Initial Purchaser reasonably may propose
within three (3) Business days of receipt thereof. The Company shall also
furnish to the Initial Purchaser before filing with the Commission, if
reasonably practicable, or otherwise promptly after filing with the Commission,
copies of any amendments to the Shelf Registration Statement or supplements to
the Prospectus, and shall make the Company's representatives reasonably
available for discussion of such amendments or supplements and make such changes
in such amendments or supplements prior to the filing thereof, if reasonably
practicable, or prepare and file further amendments or supplements, as the
Initial Purchaser, may reasonably request (it being understood that a request to
correct a material misstatement or omission is an example of one such reasonable
request);
(g) make available at reasonable times for inspection by one or more
representatives of the selling Holders (designated in writing by a Majority of
Holders whose Transfer Restricted Securities are included in the Shelf
Registration Statement), any underwriter participating in any distribution
pursuant to the Shelf Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the underwriter(s), all financial and
other records, pertinent corporate documents and properties of the Company as
shall be reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the Company's officers, directors,
managers and employees to supply all information reasonably requested by any
such representative or representatives of the selling Holders, underwriter,
attorney or accountant in connection with the Shelf Registration Statement after
the filing thereof and before its effectiveness; provided, however, that (A)
each such representative of the selling Holders, ( on its behalf and on behalf
of its underwriter(s), attorneys and accountants) will be required to agree in
writing that records and 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 unless and
until such is made generally available to the public through no fault of such
representative of the selling Holders or their underwriter(s), attorneys or
accountants of a selling Holder, and (B) each selling Holder of such Transfer
Restricted Securities will be required further to agree in writing that it will,
upon learning that the disclosure of such records or information is sought in a
court of competent jurisdiction, or in connection with any action, suit or
proceeding, give notice to the Company and allow the Company at its expense to
undertake appropriate action to prevent disclosure of the records and
information deemed confidential;
(h) if reasonably requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in the Shelf Registration Statement
or Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holders and underwriter(s), if any,
may request to have included therein, including, without limitation: (A)
information relating to the "Plan of Distribution" of the Transfer Restricted
Securities, (B) information with respect to the principal amount of Notes or
number of Shares of Beneficial Interest being sold to such underwriter(s), (C)
the purchase price being paid therefor and (D) any other terms of the offering
of the Transfer Restricted Securities to be sold in such offering; provided,
however, that with respect to any information requested for inclusion by a
selling
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Holder, this clause (h) shall apply only to such information that relates to the
Transfer Restricted Securities to be sold by such selling Holder; and make all
required filings of such Prospectus supplement or post-effective amendment as
soon as reasonably practicable after the Company is notified of the matters to
be incorporated in such Prospectus supplement or post-effective amendment;
(i) furnish to each selling Holder and each of the underwriter(s), if
any, upon request, without charge, at least one conformed copy of the Shelf
Registration Statement, as first filed with the Commission, and of each
amendment thereto (without any documents incorporated by reference therein or
exhibits thereto (or exhibits incorporated in such exhibits by reference) unless
requested);
(j) deliver to each selling Holder and each of the underwriter(s), if
any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such Persons
may reasonably request; subject to any notice by the Company in accordance with
this Section of the existence of any fact or event of the kind described in
clauses (ii) through (iv) of Section 4(d), the Company hereby consents to the
use of the Prospectus and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in connection with the
offering and the sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto;
(k) if an underwriting agreement is entered into and the registration
is an Underwritten Registration, the Company shall:
(i) upon request, furnish to each underwriter and, in the case of
clause (1) below, to each selling Holder, in such substance and scope
as they may reasonably request and as are customarily made by issuers
to underwriters in primary underwritten offerings, upon the date of
closing of any sale of Transfer Restricted Securities in an
Underwritten Registration:
(ii) a certificate, dated the date of such closing, signed by the
Chief Financial Officer of the Company confirming, as of the date
thereof, the matters set forth in Section 6(e) of the Purchase
Agreement and such other matters as such parties may reasonably
request;
(iii) opinions, each dated the date of such closing, of counsel
to the Company covering such of the matters as are customarily covered
in legal opinions to underwriters in connection with primary
underwritten offerings of securities;
(iv) customary comfort letters, dated the date of such closing,
from the Company's independent accountants (and from any other
accountants whose report is contained or incorporated by reference in
the Shelf Registration Statement), in the customary form and covering
matters of the type customarily covered in comfort letters to
underwriters in connection with primary underwritten offerings of
securities;
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(v) set forth in full in the underwriting agreement, if any,
indemnification provisions and procedures which provide rights no less
protective than those set forth in Section 6 hereof with respect to
all parties to be indemnified by the Company; and
(vi) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (i) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the selling
Holders pursuant to this clause (k);
(l) 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 or qualification of the
Transfer Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s), if any, may reasonably
request and do any and all other acts or things necessary or customary to enable
the disposition in such jurisdictions of the Transfer Restricted Securities
covered by the Shelf Registration Statement, including the matters set forth in
Section 1(l) of the Purchase Agreement; provided, however, that the Company
shall not be required (A) to register or qualify as a foreign corporation or a
dealer of securities where it is not now so qualified or to take any action that
would subject it to the service of process in any jurisdiction where it is not
now so subject or (B) to subject themselves to taxation in any such jurisdiction
if they are not now so subject;
(m) 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
legends (unless required by applicable securities laws) 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 before any sale of Transfer Restricted Securities made by such Holders or
underwriter(s);
(n) provide CUSIP numbers for all Transfer Restricted Securities not
later than the effective date of the Shelf Registration Statement and provide
the Trustee with certificates for the Notes and any Beneficial Interest issued
upon conversion thereof that are in a form eligible for deposit with The
Depository Trust Company;
(o) 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 that is required to be retained in accordance with the rules and
regulations of the NASD;
(p) otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the Commission and all reporting
requirements under the rules and regulations of the Exchange Act and the
securities commission or similar regulatory authority in any province or
territory of Canada in which the Company is a reporting issuer or the equivalent
and the securities laws applicable to those jurisdictions;
(q) cause the Indenture to be qualified under the TIA not later than
the effective date of the Shelf Registration Statement, and, in connection
therewith, cooperate with the Trustee and the holders of Notes to effect such
changes to the Indenture as may be required for such
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Indenture to be so qualified in accordance with the terms of the TIA, and
execute and use commercially reasonable efforts to cause the Trustee thereunder
to execute all documents that 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;
(r) cause all Transfer Restricted Securities (other than the Notes
that have been designated for trading in the PORTAL(SM) Market on or before the
date of this Agreement) covered by the Shelf Registration Statement to be listed
or quoted, as the case may be, on each securities exchange or automated
quotation system on which similar securities issued by the Company are then
listed or quoted;
(s) enter into such customary agreements and take all such other
actions, if any, as Holders of at least 25% in aggregate principal amount of the
Transfer Restricted Securities may reasonably request in order to facilitate the
disposition of the Transfer Restricted Securities pursuant to the Shelf
Registration Statement.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in clauses (ii) through (iv) of Section 4(b) hereof and
during any Suspension Period, such Holder will, and will use commercially
reasonable efforts to cause any underwriter(s) in an Underwritten Offering to,
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the Shelf Registration Statement until:
(A) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 4(b) hereof; or
(B) such Holder is advised in writing by the Company that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in 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 that was current at the time of receipt of such notice of suspension.
5. Registration Expenses. All expenses incident to the Company's
performance of and compliance with this Agreement shall be borne by the Company
regardless of whether a Registration Statement becomes effective, including,
without limitation:
(i) all registration and filing fees and expenses (including
filings made by the Initial Purchaser, Holders or underwriter(s), if
any, with the NASD);
(ii) all fees and expenses of compliance with U.S. federal
securities and Blue Sky laws;
(iii) all expenses of printing (including printing of
Prospectuses and certificates for the Shares of Beneficial Interest to
be issued upon conversion of the Notes), messenger and delivery
services and telephone;
12
(iv) all fees and disbursements of counsel to the Company;
(v) all application and filing fees in connection with listing
(or authorizing for quotation) the Shares of Beneficial Interest on
any securities exchange or automated quotation system pursuant to the
requirements hereof;
(vi) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special
audit and comfort letters required by or incident to such
performance); and
(vii) all fees and expenses of the Initial Purchaser (including
reasonable fees and disbursements of counsel to the Initial Purchaser)
in connection with any amendment, modification or supplement to this
Agreement.
The Company shall bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal, accounting or other duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company. In connection with the Shelf Registration Statement required by this
Agreement, the Company will reimburse the Holders of Securities covered by the
Shelf Registration Statement, for the reasonable fees and disbursements of not
more than one counsel (not to exceed $20,000), designated by the Holders of a
majority in principal amount of the Securities covered by the Shelf Registration
Statement (provided that the principal amount represented by Holders of Shares
of Beneficial Interest issued upon the conversion of the Notes shall be
calculated in the manner contemplated by Section 3(b)) to act as counsel for the
Holders in connection therewith.
6. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Holder, such
Holder's officers and employees and each person, if any, who controls such
Holder within the meaning of the Securities Act (each Holder and each of its
respective officers, employees and any such control person being an "Indemnified
Holder"), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to resales of the Transfer
Restricted Securities), to which such Indemnified Holder may become subject,
insofar as any such loss, claim, damage, liability or action arises out of, or
is based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Registration Statement or
Prospectus or any amendment or supplement thereto or (B) any blue sky
application or other document or any amendment or supplement thereto
prepared or executed by the Company (or based upon written information
furnished by or on behalf of the Company expressly for use in such
blue sky application or other document or amendment on supplement)
filed in any jurisdiction specifically for the purpose of qualifying
any or all of the Transfer Restricted Securities under the securities
law of any state or other jurisdiction (such application or document
being hereinafter called a "Blue Sky Application"); or
13
(ii) the omission or alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, (in the case of the Prospectus, in the light of
the circumstances under which they were made), not misleading,
and shall reimburse each Indemnified Holder promptly upon demand for any legal
or other expenses reasonably incurred by such Indemnified Holder in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement or Prospectus or amendment
or supplement thereto or Blue Sky Application in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any Holder
(or its related Indemnified Holder) specifically for use therein or out of the
failure by the Indemnified Holder to furnish to any purchaser of its Restricted
Transfer Security of the Prospectus and any supplement or amendment thereto in
the form provided to such Indemnified Holder by the Company. The foregoing
indemnity agreement is in addition to any liability that the Company may
otherwise have to any Indemnified Holder.
(b) Each Holder, severally and not jointly, shall indemnify and hold
harmless the Company, their respective officers and employees, their respective
directors and each person, if any, who controls the Company within the meaning
of the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company, or any
such director, officer, employee or controlling person may become subject,
insofar as any such loss, claim, damage or liability or action arises out of, or
is based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or Prospectus or
any amendment or supplement thereto or any Blue Sky Application; or
(ii) the omission or the alleged omission to state therein 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,
but in each case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Holder (or its related Indemnified Holder) specifically for use therein
which shall, except as otherwise specifically agreed by any Holder, be the
information provided by such Holder in response to the Notice and Questionnaire
or otherwise provided in respect of Item 501 of Regulation S-K by such Holder,
and shall reimburse the Company, and any such director, officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by the Company, or any such director, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability that any Holder may
14
otherwise have to the Company, or any of their respective directors, officers,
employees or controlling persons and any such director, officer, employee or
controlling person.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of any claims or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the claim or the commencement
thereof (but the failure so to notify an indemnifying party shall not relieve it
from any liability which it may have under this Section 6). In case any such
claim or action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent it may elect by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties, other than reasonable costs of
investigation, unless (i) the employment of such counsel shall have been
authorized in writing by one of the indemnifying parties in connection with the
defense of such action, (ii) the indemnifying parties shall not have employed
counsel to have charge of the defense of such action within a reasonable time
after notice of commencement of the action or (iii) such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them that are different from or additional to those available to one or
all of the indemnifying parties (in which case the indemnifying parties shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events the fees and expenses of
one counsel selected by all the indemnified parties to represent them all shall
be borne by the indemnifying parties. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement or
compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or reasonably
could have been a party and indemnity or contribution may be or could have been
sought hereunder by the indemnified party (an "Action"), unless such settlement,
compromise or judgment (x) includes an unconditional release of the indemnified
party from all liability on claims that are the subject matter of such action
and (y) does not include a statement as to or an admission of fault, culpability
or a failure to act, by or on behalf of the indemnified party. No indemnified
party shall, without the prior written consent of the indemnifying party, effect
any settlement or compromise of, or consent to the entry of judgment with
respect to, any Action, unless such settlement, compromise or consent includes
an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Action.
(d) If the indemnification provided for in this Section 6 shall for
any reason be unavailable or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b) in respect of any loss, claim, damage or liability
(or action in respect thereof) referred to therein, each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability (or action in respect thereof):
15
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Company from the initial issuance and sale of
the Transfer Restricted Securities on the one hand and a Holder with
respect to the sale by such Holder of the Transfer Restricted
Securities on the other; or
(ii) if the allocation provided by clause (6)(d)(i) is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 6(d)(i)
but also the relative fault of the Company on the one hand and the
Holder on the other in connection with the statements or omissions or
alleged statements or alleged omissions that resulted in such loss,
claim, damage or liability (or action in respect thereof), as well as
any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and a Holder on
the other with respect to such offering and such sale shall be deemed to be in
the same proportion as the total net proceeds from the offering of the Notes
(before deducting expenses) received by the Company, on the one hand, bear to
the total proceeds received by such Holder with respect to its sale of Transfer
Restricted Securities on the other. The relative fault of the parties shall be
determined by reference to 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 on the one hand or the Holders on
the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, and each Holder agree that it would not be just and equitable if
the amount of contribution pursuant to this Section 6(d) were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the first sentence of this
Section 6(d). The amount paid or payable by an indemnified party as a result of
the loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 6 shall be deemed to include, for purposes of this Section
6, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 6, no Holder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Transfer Restricted Securities purchased by it were
resold exceeds the amount of any damages which such Holder has otherwise been
required to pay by reason of any 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. The Holders' obligations to contribute as provided in this
Section 6(d) are several and not joint.
7. Rule 144 and 144A. The Company shall use commercially reasonable
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act 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, make
publicly available other information so long as necessary to permit sales of
their securities pursuant to Rules 144 and 144A. The Company covenants that it
will take such further action as any Holder may reasonably request, all to the
extent required from time to time to enable such Holder to sell Transfer
Restricted Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A
16
(including the requirements of Rule 144A(d)(4)). The Holders understand and
agree that, for so long as the Shares of Beneficial Interest are quoted on
NASDAQ, such shares are not eligible for resale pursuant to Rule 144A. Upon the
written request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it has complied with such requirements. The
Company will provide a copy of this Agreement to prospective purchasers of Notes
identified to the Company by the Initial Purchaser upon written request.
8. Participation in Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder unless such Holder:
(i) 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; and
(ii) completes and executes all reasonable questionnaires, powers
of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting
arrangements.
9. 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 investment banker or investment bankers and
manager or managers that will administer the offering will be selected by a
Majority of Holders whose Transfer Restricted Securities are included in such
offering; provided, however, that such investment bankers and managers must be
reasonably satisfactory to the Company.
10. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Section 2 hereof may result in
material irreparable injury to the Initial Purchaser or the Holders for which
there is no adequate remedy at law, that it will not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Section 2 hereof. The
Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) Adjustments Affecting Transfer Restricted Securities. The Company
shall not, directly or indirectly, take any action with respect to the Transfer
Restricted Securities as a class that would adversely affect the ability of the
Holders of Transfer Restricted Securities to include such Transfer Restricted
Securities in a registration undertaken pursuant to this Agreement.
(c) No Inconsistent Agreements. The Company shall not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that interferes with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. In addition, the Company shall
not grant to any of its security holders (other than the holders of Transfer
Restricted Securities in such capacity) the right to include any of its
securities in the
17
Shelf Registration Statement provided for in this Agreement other than the
Transfer Restricted Securities.
(d) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of a Majority of Holders; provided that the Company and the Initial
Purchaser may amend, modify or supplement this Agreement in any manner that does
not adversely affect the Holders.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing (except if the context expressly
permits otherwise) by hand-delivery, first-class mail (registered or certified,
return receipt requested), telecopier, or air courier guaranteeing overnight
delivery:
(i) if to a Holder, at the address set forth on the records of
the registrar under the Indenture or the transfer agent of the
Beneficial Interest, as the case may be; and
(ii) if sent to the Initial Purchaser, shall be mailed, delivered
or faxed and confirmed in writing, to:
RBC Capital Markets
Xxxxx Xxxx Xxxxx, 0xx Xxxxx, Xxxxx Xxxxx
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Ph: (416) 842-7593
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxxx, Managing Director
with copies to:
Xxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
(iii) if to the Company:
Xxxxxx International Inc.
00000 Xxxxxxxxxx Xxx. Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx, XXX 98168
Attn: Xxxxx Xxxxxxxx, Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
18
With a copy to:
Sangra Moller
0000 Xxxxxxxxx Xxxxx
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X00 0X0
Xxxxxx
Attn: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All such notices and communications shall be deemed to have been duly
given at: the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
(f) 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
(i) this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign acquired Transfer Restricted Securities from such Holder and (ii) nothing
contained herein shall be deemed to permit any assignment, transfer or other
disposition of Transfer Restricted Securities in violation of the terms of the
Purchase Agreement or the Indenture.
(g) Counterparts. This Agreement may be executed in any number of
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.
(h) Securities Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held by the
Company or its Affiliates shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
(i) Headings. The headings in this Agreement are for convenience of
reference only and are not to be considered a part of this Agreement and shall
in no way modify or restrict any of the terms or provisions hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY
APPLICABILITY PRINCIPLES OF CONFLICTS OF LAW.
(k) Severability. If 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.
19
(l) Entire Agreement. This 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 Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
(signature pages follow)
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXX INTERNATIONAL INC.
By: /s/ Xxxxx X.X. Xxx
------------------------------------
Name: Xxxxx X.X. Xxx
Title:
By:
------------------------------------
Name:
Title:
(additional signature page follows)
signature page to registration rights agreement
RBC XXXX XXXXXXXX INC.
By: /s/ Xxxxx xxXxx
-------------------------------
Name: Xxxxx xxXxx
Title:
signature page to registration rights agreement
Exhibit A
Form of Selling Securityholder Notice and Questionnaire
[To be provided.]
A-2
