Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated as of
January 24, 1997, is by and among Xxxxx & Xxxxx Company, a Delaware corporation
(the "Company"), and Archon Group, L.P., a Delaware limited partnership (the
"Investor").
WHEREAS, the Investor and the Company have entered into the Stock
Purchase Agreement dated as of January 24, 1997 (the "Stock Purchase Agreement")
pursuant to which the Investor agreed to purchase shares of common stock of the
Company (the "Common Stock").
WHEREAS, the parties hereto desire to provide for certain rights
to register such shares of Common Stock under the Securities Act of 1933, as
amended, in the manner and upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the terms
and conditions herein contained, the parties hereto mutually agree as follows:
1. DEFINITIONS.
1.1 DEFINED TERMS. In addition to the capitalized terms defined
elsewhere in this Agreement, as used in this Agreement the following terms shall
have the following meanings (with the singular to include the plural, except
where the context otherwise requires):
(a) "Affiliate" of a Person shall mean any Person directly or
indirectly controlling, controlled by, or under common control with such Person.
(b) "Board of Directors" shall mean the Board of Directors of
the Company.
(c) "Change of Control" shall mean any Person other than
Warburg shall have the right, directly or indirectly, to elect a majority of the
Board of Directors of the Company.
(d) "Commission" shall mean the Securities and Exchange
Commission.
(e) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(f) "Existing Registration Rights Agreement" shall mean the
Registration Rights Agreement dated as of December 11, 1996 by and among the
Company, Warburg, Xxxxxxx and the Kojaian Investors.
(g) "Xxxxxxx" shall mean Xxx X. Xxxxxxx.
(h) "Investor Shares" shall mean the aggregate of 2,500,000
shares of Common Stock issued to the Investor pursuant to the Stock Purchase
Agreement.
(i) "Investor Securities" shall mean the Investor Shares and
any and all issued shares of Registrable Securities.
(j) "Kojaian Investors" shall mean collectively C. Xxxxxxx
Xxxxxxx, Xxxx Xxxxxxx and Xxxxxxx X. Xxxxxxx.
(k) "Person" shall mean any individual, corporation,
partnership, association, trust or other entity or organization, including a
government or political subdivision or agency or instrumentality thereof.
(l) "Prospectus" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all
material incorporated by reference in such prospectus.
(m) "Registration" shall mean a Demand Registration or a
Piggyback Registration.
(n) "Registration Statement" shall mean any registration
statement of the Company which covers any of the Registrable Securities pursuant
to the provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all material incorporated by reference in such Registration
Statement.
(o) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(p) "Subsidiary" shall mean any corporation, partnership, joint
venture or other entity of which the Company owns, directly or indirectly, a
majority of the capital stock or a majority of the partnership or other equity
interests, or is a general partner.
(q) "Triggering Event" shall mean either (i) a Change in
Control or (ii) the sale or other disposition of 50% or more of the Warburg
Registrable Securities (as defined in the Existing Registration Rights
Agreement) by a means other than pursuant to a registration statement under the
Existing Registration Rights Agreement.
(r) "underwritten registration" or "underwritten offering"
shall mean a sale of securities of the Company to an underwriter for reoffering
to the public.
(s) "Warburg" shall mean Warburg, Xxxxxx Investors, L.P, a
Delaware limited partnership.
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(t) "Warburg/Kojaian Registrable Securities" shall mean
collectively the Warburg Registrable Securities and the Kojaian Registrable
Securities as such terms are defined in the Existing Registration Rights
Agreement.
2. REGISTRATION RIGHTS.
2.1 DEMAND REGISTRATIONS.
(a) Subject to Section 2.1(b), at any time after the earlier of
(i) the date a Triggering Event occurs and (ii) July 24, 1998, the holder or
holders of at least 30% of the aggregate amount of Registrable Securities may
make three written requests to the Company to effect a registration under and in
accordance with the provisions of the Securities Act of all or part of the
Registrable Securities.
For purposes of this Section 2, a Person is deemed to be a holder
of Registrable Securities whenever such Person owns Registrable Securities or
has the right to acquire such Registrable Securities, whether or not such
acquisition has actually been effected and disregarding any legal restrictions
upon the exercise of such right.
"Registrable Securities" shall mean the Investor Shares and all
shares of Common Stock issued or issuable upon conversion or exercise of any
securities of the Company, which may be issued or distributed with respect to,
or in exchange for, the Investor Shares pursuant to a stock dividend, stock
split or other distribution, merger, consolidation, recapitalization or
reclassification or otherwise, and any securities of the Company which may be
issued or distributed with respect to, or in exchange for, any such Common Stock
or such other securities pursuant to a stock dividend, stock split or other
distribution, merger, consolidation, recapitalization or reclassification or
otherwise; PROVIDED, HOWEVER, that any such Registrable Securities shall cease
to be Registrable Securities when (i) a Registration Statement with respect to
the sale of such Registrable Securities has been declared effective under the
Securities Act and such Registrable Securities have been disposed of in
accordance with the plan of distribution set forth in such Registration
Statement, (ii) such Registrable Securities are distributed pursuant to Rule 144
or Rule 144A (or any similar provision then in force) under the Securities Act
or (iii) such Registrable Securities shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further transfer under
the Securities Act shall have been delivered by the Company and they may be
resold without subsequent registration under the Securities Act; PROVIDED,
FURTHER, HOWEVER, that any securities that have ceased to be Registrable
Securities cannot thereafter become Registrable Securities, and any security
that is issued or distributed in respect to securities that have ceased to be
Registrable Securities are not Registrable Securities.
Any registration requested pursuant to Section 2.1(a) shall
hereinafter be referred to as a "Demand Registration." Each request for a
Demand Registration shall specify the kind and aggregate amount of Registrable
Securities to be registered and the intended methods of disposition thereof,
which may be stated in the alternative if a shelf Registration Statement is
requested pursuant to Rule 415 under the Securities Act. The
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Company shall be deemed to have effected a Demand Registration if (i) the
Registration Statement relating to such Demand Registration is declared
effective by the Commission and remains effective for at least 30 days;
PROVIDED, HOWEVER, that no Demand Registration shall be deemed to have been
effected if (x) such registration, after it has become effective, is interfered
with by any stop order, injunction or other order or requirement of the
Commission or other governmental agency or court or (y) the conditions to
closing specified in the purchase agreement or underwriting agreement entered
into in connection with such registration are not satisfied or (ii) at any time
after the requisite holders request a Demand Registration and prior to the
effectiveness of the Registration Statement, the preparation of such
Registration Statement is discontinued or such Registration Statement is
withdrawn or abandoned at the request of the holders of a majority of the
Registrable Securities sought to be registered in such Registration Statement
pursuant to Section 2.1(a), unless either (x) the holders of such Registrable
Securities have elected to pay and have paid to the Company in full the
Registration Expenses (as hereinafter defined) in connection with such
Registration Statement, or (y) such discontinuation, withdrawal or abandonment
is requested by such holders because of the occurrence of a significant negative
change in market conditions or the Company's business condition or prospects
since the date of the initial request for a Demand Registration.
(b) DEMAND NOTICES. Promptly upon receipt of any request for a
demand registration pursuant to Section 2.1(a) of the Existing Registration
Rights Agreement (but in no event more than five business days thereafter), the
Company will serve written notice, which notice shall specify whether the
offering is to be underwritten or is to be on another basis (a "Demand Notice")
of any such Registration request to the beneficial holders of Registrable
Securities who then have the right to request a Demand Registration pursuant to
this Agreement, and the Company will include in such registration all such
Registrable Securities of any holder with respect to which the Company has
received written requests for inclusion therein, in which the holder has
specified that such inclusion is to be deemed a Demand Registration pursuant to
Section 2.1(a) hereof, within 30 days after the Demand Notice has been given to
the applicable holders of Registrable Securities. Notwithstanding anything in
Section 2.1(a) to the contrary, the Investor may make such a demand pursuant to
this Section 2.1(b) after the effective date hereof. All requests made pursuant
to this Section 2.1(b) shall specify the kind and aggregate amount of
Registrable Securities to be registered, and shall be counted as a demand for
purposes of Section 2.1(a). If such initial request for a Demand Registration
has specified that the offering pursuant thereto shall be underwritten, then
each holder making a request pursuant to this Section 2.1(b) must participate in
such underwritten offering and shall not be permitted to make any other offering
in connection with such demand registration. If such initial request for a
demand registration has specified that the offering pursuant thereto shall be on
any other basis, then each holder making a request pursuant to this Section
2.1(b) must participate in such offering on such basis and shall not be
permitted to make an underwritten offering in connection with such demand
registration.
(c) PRIORITY OF DEMAND REGISTRATIONS. If the managing
underwriter or agent of a Demand Registration (or, in the case of a Demand
Registration not being underwritten, holders of a majority of the Registrable
Securities sought to be registered
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therein pursuant to Section 2.1), advises the Company in writing that in its or
their opinion the number of securities requested to be included in such Demand
Registration exceeds the number which can be sold in such offering without a
significant adverse effect on the price, timing or distribution of the
securities offered, the Company will include in such Registration only the
number of securities that, in the opinion of such underwriter or agent (or
holders, as the case may be), can be sold without a significant adverse effect
on the price, timing or distribution of the securities offered, selected pro
rata among the holders that have requested to be included in such Demand
Registration pursuant to Sections 2.1(a) or 2.1(b) or pursuant to other demand
registration rights, based on the number of shares of Registrable Securities,
Warburg/Kojaian Registrable Securities or other securities requested to be
registered by each such holder.
The Company and other holders of securities of the Company may
include other securities in such Registration if, but only if, such underwriter
or agent (or holders of Registrable Securities, as the case may be) concludes
that such inclusion will not have a significant adverse effect on the price,
timing or distribution of all the securities requested to be included in such
Registration.
(d) THE COMPANY'S RIGHT TO DEFER REGISTRATION. If the Company
is requested to effect a Demand Registration and the Company furnishes to the
holders of Registrable Securities requesting such Registration a copy of a
resolution of the Board of Directors certified by the Secretary of the Company
stating that in the good faith judgment of the Board of Directors it would be
adverse to the Company and its securityholders for such Registration Statement
to be filed on or before the date such filing would otherwise be required
hereunder because such registration would interfere with any financing,
acquisition, corporate reorganization or other material transaction involving
the Company or any of its Subsidiaries or would require premature disclosure
thereof, or would require disclosure of material information which the Company
would be justified in not disclosing in the absence of such Registration, the
Company shall have the right to defer such filing for a reasonable period not to
exceed 90 days after receipt of the request for such Registration from such
holders of Registrable Securities. If the Company shall so postpone the filing
of a Registration Statement and if any holder of Registrable Securities
requesting such Demand Registration pursuant to Section 2.1 within 30 days after
receipt of the notice of postponement advises the Company in writing that it has
determined to withdraw its request for Registration, then such Demand
Registration shall be deemed to be withdrawn by it and such request shall be
deemed not to have been exercised for purposes of determining whether such
holder retains the right to Demand Registrations pursuant to this Section 2.1.
In addition, if any holder of Registrable Securities so notifies the Company of
its determination to withdraw its request for Registration and, within the 60
days immediately following the deferral period, any holders of Registrable
Securities make a written request to the Company for Registration of the same
class of Registrable Securities that were subject to the Registration withdrawn
pursuant to the preceding sentence, the Company shall have no right to defer
such Registration pursuant to this paragraph (c).
(e) REGISTRATION STATEMENT FORM. Registrations under this
Section 2.1 shall be on such appropriate registration form of the Commission
(i) as shall be selected by
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the Company and as shall be reasonably acceptable to the holders of a majority
of the Registrable Securities requesting a Demand Registration and (ii) as shall
permit the disposition of such Registrable Securities in accordance with the
intended method or methods of disposition specified in such holders' requests
for such Registration. If, in connection with any Registration under this
Section 2.1 which is proposed by the Company to be on Form S-3 or any successor
form to such Form, the managing underwriter, if any, shall advise the Company in
writing that in its opinion the use of another permitted form is of material
importance to the success of the offering, then such Registration shall be on
such other permitted form.
(f) SELECTION OF UNDERWRITERS. If any offering pursuant to a
Demand Registration involves an underwritten offering, the holders of a majority
of the Registrable Securities included in such Demand Registration pursuant to
Section 2.1(a) shall have the right to select the managing underwriter or
underwriters to administer the offering, subject to the consent of the Company,
which consent shall not be unreasonably withheld.
2.2 PIGGYBACK REGISTRATIONS.
(a) PARTICIPATION. Subject to Section 2.2(b) hereof, if at any
time and from time to time after the date hereof, the Company files a
Registration Statement under the Securities Act with respect to any offering of
any equity securities by the Company for its own account or for the account of
any of its equity holders (other than (i) a registration on Form S-4 or S-8 or
any successor form to such Forms or (ii) any registration of securities as it
relates to an offering and sale to management of the Company pursuant to any
employee stock plan or other employee benefit plan arrangement) then, as soon as
practicable (but in no event less than ten days prior to the proposed date of
filing such Registration Statement, unless notice has been given under Section
2.1(b)), the Company shall give written notice of such proposed filing to all
beneficial holders of Registrable Securities, which notice may be the same as
the Demand Notice given pursuant to Section 2.1(b) if applicable, and such
notice shall offer the holders of Registrable Securities the opportunity to
register such number of Registrable Securities as each such holder may request
(a "Piggyback Registration") and shall specify whether the offering is to be
underwritten or is to on another basis. Subject to Section 2.2(b), the Company
shall include in such Registration Statement all Registrable Securities
requested within 30 days after the receipt of any such notice (which request
shall specify the Registrable Securities intended to be disposed of by such
holder) to be included in the Registration for such offering pursuant to a
Piggyback Registration; PROVIDED, HOWEVER, that if, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the Registration Statement filed in connection with such
Registration, the Company shall determine for any reason not to register or to
delay registration of such securities, the Company may, at its election, give
written notice of such determination to each holder of Registrable Securities
and, thereupon, (i) in the case of a determination not to register, shall be
relieved of its obligation to register any Registrable Securities in connection
with such Registration (but not from its obligation to pay the Registration
Expenses in connection therewith), without prejudice, however, to the rights of
any holders of Registrable Securities
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entitled to do so to request that such Registration be effected as a
Registration under Section 2.1, and (ii) in the case of a determination to delay
registering, shall be permitted to delay registering any Registrable Securities,
for the same period as the delay in registering such other securities. If the
offering pursuant to such Registration Statement is to be underwritten, then
each holder making a request for a Piggyback Registration pursuant to this
Section 2.2(a) must participate in such underwritten offering and shall not be
permitted to make any other offering in connection with such Registration. If
the offering pursuant to such Registration Statement is to be on any other
basis, then each holder making a request for a Piggyback Registration pursuant
to this Section 2.2(a) must participate in such offering on such basis and shall
not be permitted to make an underwritten offering in connection with such
Registration. Each holder of Registrable Securities shall be permitted to
withdraw all or part of such holder's Registrable Securities from a Piggyback
Registration at any time prior to the effective date thereof.
(b) UNDERWRITER'S CUTBACK. The Company shall use its best
efforts to cause the managing underwriter or underwriters of a proposed
underwritten offering to permit the Registrable Securities requested to be
included in the Registration for such offering under Section 2.2(a) or pursuant
to other piggyback registration rights granted by the Company, if any
("Piggyback Securities"), to be included on the same terms and conditions as any
similar securities included therein. Notwithstanding the foregoing, if the
managing underwriter or underwriters of any such proposed underwritten offerings
informs the Company and the holders of such Registrable Securities in writing
that the total amount or kind of securities, including Piggyback Securities,
which such holders and any other persons or entities intend to include in such
offering would be reasonably likely to adversely affect the price or
distribution of the securities offered in such offering or the timing thereof,
then the securities to be included in such Registration shall be (i) first, 100%
of the securities that the Company or the holder or holders making a request for
a Demand Registration pursuant to Section 2.1 or pursuant to other demand
registration rights, as the case may be, proposes to sell, subject to the
provisions of Section 2.1(c) and (ii) second, the number of securities that, in
the opinion of such underwriter or underwriters, can be sold without an adverse
effect on the price, timing or distribution of the securities to be included,
selected pro rata among holders of Registrable Securities and holders of
Piggyback Securities to the extent any of such holders has requested pursuant to
Section 2.2(a) or pursuant to other incidental registration rights to be
included in such Piggyback Registration, based on the number of shares of
Registrable Securities or Piggyback Securities requested to be registered by
each such holder.
(c) NO EFFECT ON DEMAND REGISTRATIONS. No Registration of
Registrable Securities effected pursuant to a request under this Section 2.2
shall be deemed to have been effected pursuant to Section 2.1 hereof or shall
relieve the Company of its obligation to effect any Registration upon request
under Section 2.1 hereof.
2.3 HOLD-BACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY HOLDER OF REGISTRABLE
SECURITIES. Each holder of Registrable Securities agrees, if requested by
(i) the Company, (ii) the managing
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underwriters in an underwritten offering or (iii) the holders of a majority of
the Registrable Securities included pursuant to Section 2.1 hereof in a Demand
Registration not being underwritten, not to effect any public sale or
distribution of securities of the Company the same as or similar to those being
registered, or any securities convertible into or exchangeable or exercisable
for such securities, in any Registration Statement, including a sale pursuant to
Rule 144 under the Securities Act (except as part of such underwritten
registration), during the 14-day period prior to, and during the 90-day period
(or, with respect to a Piggyback Registration, such longer period of up to 180
days as may be required by such underwriter) beginning on, the effective date of
any Registration Statement (except as part of such registration) or the
commencement of the public distribution of securities, to the extent timely
notified in writing by the Company or the managing underwriters (or the holders,
as the case may be).
(b) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY AND OTHERS. The
Company agrees, if requested by the managing underwriter in an underwritten
offering, not to effect any public sale or distribution of any securities the
same as or similar to those being registered by the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
14-day period prior to, and during the 90-day period (or, with respect to a
Piggyback Registration, such longer period of up to 180 days as may be required
by the underwriter) beginning on, the effective date of a Registration Statement
filed under Section 2.1 or Section 2.2 hereof or the commencement of the public
distribution of securities to the extent timely notified in writing by a holder
of Registrable Securities covered by such Registration Statement or the managing
underwriters (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 or any
registration of securities for offering and sale to management of the Company
pursuant to any employee stock plan or other employee benefit plan arrangement).
The Company agrees to use reasonable efforts to obtain from each holder of
restricted securities of the Company the same as or similar to those being
registered by the Company, or any restricted securities convertible into or
exchangeable or exercisable for any of its securities, an agreement not to
effect any public sale or distribution of such securities (other than securities
purchased in a public offering) during such period, except as part of any such
registration if permitted.
(c) OTHER REGISTRATION RIGHTS AGREEMENTS. The Company is
presently a party to the Existing Registration Rights Agreement with respect to
the registration under the Securities Act of certain securities of the Company.
The Company may enter into any other such agreement; PROVIDED, HOWEVER, that the
rights and benefits of a securityholder with respect to registration of the
Company's securities as contained in any such other agreement shall be no more
favorable than the rights and benefits of holders of Registrable Securities as
contained in this Agreement.
2.4 REGISTRATION PROCEDURES. In connection with the Company's
Registration obligations pursuant to Sections 2.1 and 2.2 hereof, the Company
will use its best efforts to effect such registration to permit the sale of such
Registrable Securities in accordance with the intended method or methods of
distribution thereof, and pursuant thereto the Company will as expeditiously as
possible:
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(a) prepare and, not later than 45 days after receipt of any
request for a Demand Registration, file with the Commission a Registration
Statement or Registration Statements relating to the applicable Demand
Registration or Piggyback Registration including all exhibits and financial
statements required by the Commission to be filed therewith, and use its best
efforts to cause such Registration Statement to become effective under the
Securities Act; PROVIDED, HOWEVER, that the Company may discontinue any
Registration of its securities which are not Registrable Securities (and, under
the circumstances specified in Section 2.1(d), may delay and, under the
circumstances specified in Section 2.2(a), may delay or discontinue Registration
of its securities which are Registrable Securities) at any time prior to the
effective date of the Registration Statement relating thereto;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be requested by
the holders of a majority of the Registrable Securities or as may be necessary
to keep the Registration Statement effective for a period of not less than 270
days (or such shorter period which will terminate when all Registrable
Securities covered by such Registration Statement have been sold or withdrawn),
or, if such Registration Statement relates to an underwritten offering, such
longer period as in the opinion of counsel for the underwriters a Prospectus is
required by law to be delivered in connection with sales of Registrable
Securities by an underwriter or dealer; 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 comply with the provisions of
the Securities Act, the Exchange Act, and the rules and regulations promulgated
thereunder with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus;
(c) notify the selling holders of Registrable Securities and
the managing underwriters, if any, and (if requested) confirm such advice in
writing, as soon as practicable after notice thereof is received by the Company
(i) when the Registration Statement or any amendment thereto has been filed or
becomes effective, the Prospectus or any amendment or supplement to the
Prospectus has been filed, and, to furnish such selling holders and managing
underwriters with copies thereof, (ii) of any request by the Commission or any
other federal or state governmental authority for amendments or supplements to
the Registration Statement or the Prospectus or for additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any order preventing or
suspending the use of any preliminary Prospectus or Prospectus or the initiation
or threatening of any proceedings for such purposes, (iv) if at any time the
representations and warranties of the Company contemplated by paragraph (m)
below cease to be true and correct and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for offering or sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
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(d) promptly notify the selling holders of Registrable
Securities and the managing underwriters, if any, when the Company becomes aware
of the happening of any event as a result of which the Registration Statement or
the Prospectus included in such Registration Statement (as then in effect)
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein (in the case of the Prospectus and
any preliminary prospectus, in the light of the circumstances under which they
were made) not misleading or, if for any other reason it shall be necessary
during such time period to amend or supplement the Registration Statement or the
Prospectus in order to comply with the Securities Act and, in either case as
promptly as practicable thereafter, prepare and file with the Commission, and
furnish without charge to the selling holders and the managing underwriters, if
any, a supplement or amendment to such Registration Statement or Prospectus
which will correct such statement or omission or effect such compliance;
(e) make every reasonable effort to prevent the issuance of or
to obtain the withdrawal of any stop order or other order suspending the use of
any preliminary Prospectus or Prospectus or suspending any qualification of the
Registrable Securities;
(f) if requested by the managing underwriter or underwriters or
a holder of Registrable Securities being sold in connection with an underwritten
offering, promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters and the holders of a
majority of the Registrable Securities being sold agree should be included
therein relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to the
number of Registrable Securities being sold to such underwriters, the purchase
price being paid therefor by such underwriters and with respect to any other
terms of the underwritten (or best efforts underwritten) offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
practicable after being notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment;
(g) furnish to each selling holder of Registrable Securities
and each managing underwriter, without charge, one executed copy and as many
conformed copies as they may reasonably request, of the Registration Statement
and any amendment or post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits (including those incorporated by reference);
(h) deliver to each selling holder of Registrable Securities
and the underwriters, 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 (it being understood that the Company
consents to the use of the Prospectus or any amendment or supplement thereto by
each of the selling holders of Registrable Securities and the underwriters, if
any, in connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement
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thereto) and such other documents as such selling holder may reasonably request
in order to facilitate the disposition of the Registrable Securities by such
holder;
(i) on or prior to the date on which the Registration Statement
is declared effective, use its best efforts to register or qualify, and
cooperate with the selling holders of Registrable Securities, the managing
underwriter or agent, if any, and their respective counsel in connection with
the registration or qualification of such Registrable Securities for offer and
sale under the securities or blue sky laws of each state and other jurisdiction
of the United States as any such seller, underwriter or agent reasonably
requests in writing and do any and all other acts or things reasonably necessary
or advisable to keep such registration or qualification in effect for so long as
such Registration Statement remains in effect and so as to permit the
continuance of sales and dealings therein for as long as may be necessary to
complete the distribution of the Registrable Securities covered by the
Registration Statement; PROVIDED that the Company will not be required to
qualify generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to taxation or general
service of process in any such jurisdiction where it is not then so subject;
(j) cooperate with the selling holders of Registrable
Securities and the managing underwriter or agent, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations and registered in such names
as the managing underwriters may request at least two business days prior to any
sale of Registrable Securities to the underwriters;
(k) use its best efforts to cause the Registrable Securities
covered by the applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof or the underwriters, if any, to
consummate the disposition of such Registrable Securities;
(l) not later than the effective date of the applicable
Registration Statement, provide a CUSIP number for all Registrable Securities
and provide the applicable transfer agent with printed certificates for the
Registerable Securities which are in a form eligible for deposit with The
Depository Trust Company;
(m) make such representations and warranties to the holders of
Registrable Securities being registered, and the underwriters or agents, if any,
in form, substance and scope as are customarily made by issuers in primary
underwritten public offerings;
(n) enter into such customary agreements (including a purchase
agreement or underwriting agreement) and take all such other actions as the
holders of at least a majority of any Registrable Securities being sold or the
managing underwriter or agent, if any, reasonably request in order to expedite
or facilitate the registration and disposition of such Registrable Securities;
11
(o) obtain for delivery to the holders of Registrable
Securities being registered and to the underwriter or agent an opinion or
opinions from counsel for the Company, upon consummation of the sale of such
Registrable Securities to the underwriters (the "Closing Date") in customary
form and in form, substance and scope reasonably satisfactory to such holders,
underwriters or agents and their counsel;
(p) obtain for delivery to the Company and the underwriter or
agent, with copies to the holders of Registrable Securities, a cold comfort
letter from the Company's independent public accountants in customary form and
covering such matters of the type customarily covered by cold comfort letters as
the managing underwriter or the holders of at least a majority of the
Registrable Securities being sold reasonably request, dated the effective date
of the Registration Statement and brought down to the Closing Date;
(q) cooperate with each seller of Registrable Securities and
each underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the National Association of Securities Dealers, Inc. (the
"NASD");
(r) use its best efforts to comply with all applicable rules
and regulations of the Commission and make generally available to its security
holders, as soon as reasonably practicable (but not more than fifteen months)
after the effective date of the Registration Statement, an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and the rules
and regulations promulgated thereunder;
(s) as promptly as practicable after filing with the Commission
of any document which is incorporated by reference into the Registration
Statement or the Prospectus, provide copies of such document to counsel for the
selling holders of Registrable Securities and to the managing underwriters, if
any;
(t) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such Registration Statement
from and after a date not later than the effective date of such Registration
Statement; and
(u) use its best efforts to cause all Registrable Securities
covered by the Registration Statement to be listed on each securities exchange
on which any of the Company's securities are then listed or quoted on each
inter-dealer quotation system on which any of the Company's securities are then
quoted.
The Company may require each seller of Registrable Securities as
to which any registration is being effected to furnish to the Company such
information regarding the distribution of such securities and such other
information relating to such holder and its ownership of Registrable Securities
as the Company may from time to time reasonably request in writing. Each holder
of Registrable Securities agrees to furnish such information to the Company and
to cooperate with the Company as necessary to enable the Company to comply with
the provisions of this Agreement.
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Each holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 2.4(d) hereof, such
holder will forthwith discontinue disposition of Registrable Securities pursuant
to such Registration Statement until such holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 2.4(d) hereof, or
until it 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
which are incorporated by reference in the Prospectus, and, if so directed by
the Company, such 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 Registrable Securities current at the time of
receipt of such notice. In the event the Company shall give any such notice,
the time periods during which such Registration Statement shall be maintained
effective (including the period referred to in Section 2.4(b) hereof) shall be
extended by the number of days during the period from and including the date of
the giving of such notice to and including the date when each seller of
Registrable Securities covered by such Registration Statement either receives
the copies of the supplemented or amended Prospectus contemplated by Section
2.4(d) hereof or is advised in writing by the Company that the use of the
Prospectus may be resumed.
2.5 UNDERWRITTEN OFFERINGS.
(a) REQUESTED UNDERWRITTEN OFFERINGS. If requested by the
underwriters for any underwritten offering by holders of Registrable Securities
pursuant to a Registration requested under Section 2.1, the Company will use
reasonable efforts to enter into an underwriting agreement with such
underwriters for such offering, such agreement to be reasonably satisfactory in
substance and form to the Company, each such holder and the underwriters and to
contain such representations and warranties by the Company and such other terms
as are generally prevailing in agreements of that type, including, without
limitation, indemnities to the effect and to the extent provided in Section 2.8.
The holders of the Registrable Securities proposed to be distributed by such
underwriters will cooperate with the Company in the negotiation of the
underwriting agreement and will give consideration to the reasonable suggestion
of the Company regarding the form thereof. Such holders of Registrable
Securities to be distributed by such underwriters shall be parties to such
underwriting agreement and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of such holders of Registrable Securities and that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
holders of Registrable Securities. Any such holder of Registrable Securities
shall not be required to make any representations or warranties to or agreements
with the Company or the underwriters other than representations, warranties or
agreements regarding such holder, such holder's Registrable Securities, such
holder's intended method of distribution and any other representations required
by law.
(b) INCIDENTAL UNDERWRITTEN OFFERINGS. If the Company proposes
to register any of its securities under the Securities Act as contemplated by
Section 2.2 and
13
such securities are to be distributed by or through one or more underwriters,
the Company, will, if requested by any holder of Registrable Securities pursuant
to Section 2.2 and subject to the provisions of Section 2.2(b), use its best
efforts to arrange for such underwriters to include all the Registrable
Securities to be offered and sold by such holder among the securities of the
Company to be distributed by such underwriters. The holders of Registrable
Securities to be distributed by such underwriters shall be parties to the
underwriting agreement between the Company and such underwriters and may, at
their option, require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to and for the benefit of
such underwriters shall also be made to and for the benefit of such holders of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such holders of Registrable Securities. Any
such holder of Registrable Securities shall not be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding such
holder, such holders' Registrable Securities and such holder's intended method
of distribution or any other representations required by law.
(c) PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any underwritten registration hereunder unless such Person
(i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
2.6 PREPARATION; REASONABLE INVESTIGATION. In connection with
the preparation and filing of each Registration Statement, the Company will give
the holders of Registrable Securities registered under such Registration
Statement, their underwriters, if any, and their respective counsel and
accountants the opportunity to participate in the preparation of such
Registration Statement, each Prospectus included therein or filed with the
Commission, and, to the extent practicable, each amendment thereof or supplement
thereto, and give each of them such access to its books and records (to the
extent customarily given to underwriters of the Company's securities) and such
opportunities to discuss the business of the Company with its officers and the
independent public accountants who have certified its financial statements as
shall be necessary, in the opinion of such holders' and such underwriters'
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act; PROVIDED, HOWEVER, that any books, records, information or
documents that are designated by the Company in writing as confidential shall be
kept confidential by such Persons unless disclosure thereof is required by law.
2.7 REGISTRATION EXPENSES. All expenses incident to the
Company's performance of or compliance with this Agreement, including without
limitation (i) all registration and filing fees, and any other fees and expenses
associated with filings required to be made with the Commission or the NASD
(including, if applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel as may be required by
14
the rules and regulations of the NASD), (ii) all fees and expenses of compliance
with state securities or blue sky laws (including fees and disbursements of
counsel for the underwriters or selling holders in connection with blue sky
qualifications of the Registrable Securities and determination of their
eligibility for investment under the laws of such jurisdictions as the managing
underwriters or holders of a majority of the Registrable Securities being sold
may designate), (iii) all printing and related messenger and delivery expenses
(including expenses of printing certificates for the Registrable Securities in a
form eligible for deposit with The Depository Trust Company and of printing
prospectuses), (iv) all fees and disbursements of counsel for the Company and of
all independent certified public accountants of the Company (including the
expenses of any special audit and cold comfort letters required by or incident
to such performance), (v) reasonable premiums for Securities Act liability
insurance if the Company so desires or the underwriters so reasonably require in
accordance with then customary underwriting practice, (vi) all fees and expenses
incurred in connection with the listing of the Registrable Securities on any
securities exchange or quotation of the Registrable Securities on any inter-
dealer quotation system, (vii) all reasonable fees and disbursements of one
counsel selected by the holders of a majority of the Piggyback Securities being
registered in the case of a Piggyback Registration, or one counsel selected by
the holder or holders of at least a majority of the Registrable Securities in
the case of a Demand Registration requested by the Investor pursuant to Section
2.1, in each case to represent such holders in connection with such
registration, (viii) all fees and disbursements of underwriters customarily paid
by the issuers or sellers of securities, excluding underwriting discounts and
commissions and transfer taxes, if any, and excluding fees and disbursements of
counsel to such underwriters (other than such fees and disbursements incurred in
connection with any registration or qualification of Registrable Securities
under the securities or blue sky laws of any state), (ix) all fees and expenses
of accountants to the holders of Registrable Securities being sold and (x) fees
and expenses of other Persons retained by the Company (all such expenses being
herein called "Registration Expenses"), will be borne by the Company, regardless
of whether the Registration Statement becomes effective (except as provided in
Section 2.1 hereof). The Company will, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any audit and
the fees and expenses of any Person, including special experts, retained by the
Company.
2.8 INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, each holder of
Registrable Securities, its officers, directors, employees, partners,
shareholders and agents and each Person who controls such holder (within the
meaning of the Securities Act or the Exchange Act) from and against all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation and legal expenses) arising out of or based upon any untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or preliminary Prospectus or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information furnished in
15
writing to the Company by such holder expressly for use therein; PROVIDED,
HOWEVER, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any such preliminary Prospectus if (i) it is determined
that it was the responsibility of such holder to provide the Person asserting
such loss, claim, damage, liability or expense with a current copy of the
Prospectus and such holder failed to deliver or cause to be delivered a copy of
the Prospectus to such Person after the Company had furnished such holder with a
sufficient number of copies of the same and (ii) the Prospectus completely
corrected in a timely manner such untrue statement or omission. This indemnity
shall be in addition to any liability the Company may otherwise have, shall
remain in full force and effect regardless of any investigation made by or on
behalf of such holder or any such officer, director, employee, agent, partner,
shareholder or controlling Person and shall survive termination of this
Agreement and the transfer of Registrable Securities by such holder. The
Company will also indemnify underwriters, selling brokers, dealer managers and
similar securities industry professionals participating in the distribution,
their officers, directors, partners, shareholders and each Person who controls
such Persons (within the meaning of the Securities Act and the Exchange Act) to
the same extent as provided above (with appropriate modification) with respect
to the indemnification of the holders of Registrable Securities, if requested.
(b) INDEMNIFICATION BY THE SELLING HOLDER OF REGISTRABLE
SECURITIES. Each selling holder of Registrable Securities agrees to indemnify
and hold harmless, to the full extent permitted by law, the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act or the Exchange Act) from and against any losses,
claims, damages, liabilities and expenses resulting from any untrue statement of
a material fact or any omission of a material fact required to be stated in the
Registration Statement, Prospectus or preliminary Prospectus or necessary to
make the statements therein not misleading, to the extent, but only to the
extent, that such untrue statement or omission is caused by or contained in any
information furnished in writing by such selling holder to the Company
specifically for inclusion in such Registration Statement or Prospectus and has
not been corrected in a subsequent writing prior to or concurrently with the
sale of the Registrable Securities to the Person asserting such loss, claim,
damage, liability or expense. This indemnity shall be in addition to any
liability such selling holder may otherwise have, shall remain in full force and
effect regardless of any investigation made by or on behalf of the Company or
any such officer, director or controlling Person and shall survive termination
of this Agreement and the transfer of Registrable Securities by such selling
holder. The Company shall be entitled to receive indemnities from underwriters,
selling brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided above (with
appropriate modification) with respect to information so furnished in writing by
such Persons specifically for inclusion in any Prospectus or Registration
Statement.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person
entitled to indemnification hereunder will (i) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying
16
party to assume the defense of such claim with counsel reasonably satisfactory
to the indemnified party; PROVIDED, HOWEVER, that any delay or failure to so
notify the indemnifying party shall relieve the indemnifying party of its
obligations hereunder only to the extent, if at all, that it is prejudiced by
reason of such delay or failure; PROVIDED FURTHER, HOWEVER, that any Person
entitled to indemnification hereunder shall have the right to select and employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such Person unless
(i) the indemnifying party has agreed in writing to pay such fees or expenses,
or (ii) the indemnifying party shall have failed to assume the defense of such
claim within a reasonable time after receipt of notice of such claim from the
Person entitled to indemnification hereunder and employ counsel reasonably
satisfactory to such Person, or (iii) in the reasonable judgment of any such
Person, based upon advice of its counsel, a conflict of interest may exist
between such Person and the indemnifying party with respect to such claims (in
which case, if the Person notifies the indemnifying party in writing that such
Person elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such claim on behalf of such Person). If such defense is not assumed by the
indemnifying party, the indemnifying party will not be subject to any liability
for any settlement made without its consent (but such consent will not be
unreasonably withheld), PROVIDED that an indemnifying party shall not be
required to consent to any settlement involving the imposition of equitable
remedies or involving the imposition of any material obligations on such
indemnifying party other than financial obligations for which such indemnified
party will be indemnified hereunder. No indemnifying party shall consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation. Whenever the indemnified party or the indemnifying party receives a
firm offer to settle a claim for which indemnification is sought hereunder, it
shall promptly notify the other of such offer. If the indemnifying party
refuses to accept such offer within 20 business days after receipt of such offer
(or of notice thereof), such claim shall continue to be contested and, if such
claim is within the scope of the indemnifying party's indemnity contained
herein, the indemnified party shall be indemnified pursuant to the terms hereof.
If the indemnifying party notifies the indemnified party in writing that the
indemnifying party desires to accept such offer, but the indemnified party
refuses to accept such offer within 20 business days after receipt of such
notice, the indemnified party may continue to contest such claim and, in such
event, the total maximum liability of the indemnifying party to indemnify or
otherwise reimburse the indemnified party hereunder with respect to such claim
shall be limited to and shall not exceed the amount of such offer, plus
reasonable out-of-pocket costs and expenses (including reasonable attorneys'
fees and disbursements) to the date of notice that the indemnifying party
desires to accept such offer, PROVIDED that this sentence shall not apply to any
settlement of any claim involving the imposition of equitable remedies or to any
settlement imposing any material obligations on such indemnified party other
than financial obligations for which such indemnified party will be indemnified
hereunder. An indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim will not be obligated to pay the fees and expenses
of more than one counsel for all parties indemnified by such indemnifying party
with respect to such claim, unless in the written
17
opinion of counsel to the indemnified party reasonably satisfactory to the
indemnifying party, use of one counsel by the underwriters on the one hand, and
by the securityholders on the other, would be expected to give rise to a
conflict of interest between such underwriters, on the one hand and such
securityholders on the other with respect to such claim, in which event the
indemnifying party shall be obligated to pay the fees and expenses of one such
additional counsel.
(d) CONTRIBUTION. If for any reason the indemnification
provided for in the preceding paragraphs (a) and (b) is unavailable to an
indemnified party or insufficient to hold it harmless as contemplated by the
preceding paragraphs (a) and (b), then the indemnifying party shall contribute
to the amount paid or payable by the indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect not
only the relative benefits received by the indemnified party and the
indemnifying party, but also the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable considerations,
provided that no selling holder of Registrable Securities shall be required to
contribute in an amount greater than the dollar amount of the proceeds received
by such selling holder with respect to the sale of any such Registrable
Securities. 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.
2.9 RULES 144 AND 144A. The Company covenants that it will
file the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the Commission thereunder
(or, if the Company is not required to file such reports, it will, upon the
request of any holder of Registrable Securities after the date that is the
second anniversary of the date hereof, make publicly available other information
so long as necessary to permit sales pursuant to Rules 144 or 144A under the
Securities Act), and it will take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rules 144 or 144A under the Securities Act, as such Rules may be
amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any holder of Registrable
Securities, the Company will deliver to such holder a written statement as to
whether it has complied with such requirements.
3. TRANSFER OF SECURITIES.
3.1 NOTICE OF PROPOSED TRANSFER. At the time of any transfer or sale
or proposed transfer or sale of any Investor Securities, the Company may require
written notice describing briefly the manner of such transfer or sale and a
written opinion of counsel for the holder thereof (who may be inside counsel) to
the effect that such transfer or sale may be effected without the registration
of such Investor Securities under the Securities Act and will be made in
compliance with applicable state securities and blue sky laws. The Company
shall thereupon permit or cause its transfer agent (if any) to permit such
transfer or sale to be effected unless the Company, within five days after
receipt of such notice and
18
opinion, shall furnish to such holder and such holder's counsel (if any) an
opinion of the Company's outside counsel which (i) states that such sale or
transfer may not be effected without the registration of such Investor
Securities under the Securities Act (or will not be made in compliance with
applicable securities and blue sky laws) and (ii) specifies the reasons,
factual, legal or both, why such counsel's opinion differs from that of holder's
counsel. However, if in such written notice to the Company the transferring
holder informs the Company that the transfer or sale is to a purchaser or
transferee whom the transferring holder knows or reasonably believes to be a
"qualified institutional buyer," as that term is defined in Rule 144A
promulgated under the Securities Act, no opinion of counsel shall be required.
3.2 TERMINATION OF RESTRICTIONS. Notwithstanding the foregoing
provisions of this Section 3, the restrictions imposed by this Section 3 upon
the transferability of the Investor Securities shall terminate as to any
particular Investor Securities when (i) such Investor Securities shall have been
effectively registered under the Securities Act and sold by the holder thereof
in accordance with such registration, (ii) such Investor Securities have been
sold in accordance with Rule 144 or Rule 144A promulgated under the Securities
Act, or (iii) written opinions to the effect that such restrictions are no
longer required or necessary under any federal or state law or regulation have
been received from counsel for the holder thereof (who may be inside counsel)
and, if the Company shall so require, from counsel for the Company.
3.3 EXCHANGE, TRANSFER AND REPLACEMENT OF CERTIFICATES. Subject to
the foregoing provisions of this Section 3, upon surrender of any certificate
representing Investor Securities duly endorsed for exchange or transfer, the
Company will, at its expense, or will cause its transfer agent, at the Company's
expense, to issue in exchange therefor new certificates in such denominations as
may be requested representing in the aggregate the same number of Investor
Securities represented by the certificate so surrendered and registered as such
stockholder may request. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of any certificate
representing Investor Securities and, in the case of any such loss, theft or
destruction, upon delivery of an agreement of indemnity satisfactory to the
Company or, in the case of any such mutilation, upon surrender and cancellation
of such certificate, the Company will issue, at its expense, or will cause its
transfer agent, at the Company's expense, to issue a new certificate
representing the same aggregate number of Investor Securities represented by
such lost, stolen, destroyed or mutilated certificate; PROVIDED, HOWEVER, that
in the event of any loss, theft or destruction of any certificate representing
Investor Securities registered in the name of the Investor or any of its
Affiliates, or in the name of any other holder which is an institutional
investor or its nominee, the Company shall not require such person or Affiliate
or any other holder which is an institutional investor or its nominee to furnish
any indemnity or surety bond in connection with the issuance of a new
certificate therefor if the Company is furnished with an affidavit of the holder
(if the holder is an individual) or, otherwise, the Chairman of the Board,
President, any Vice President, Treasurer or any Assistant Treasurer of the
holder (or, in the case of a nominee, the beneficial owner for which such holder
is serving as nominee) setting forth the fact of such loss, theft or destruction
and, together with such affidavit, such holder furnishes (or, in the case of a
19
nominee, the beneficial owner for which such holder is serving as nominee
furnishes) to the Company its written agreement to indemnify the Company with
respect to such loss, theft or destruction; the Company shall, however, have the
right to require any holder of Investor Securities other than the Investor or
any of its Affiliates or any other holder which is an institutional investor or
its nominee to furnish such an indemnity or surety bond. The party delivering
any certificate representing Investor Securities pursuant to this Section 3.3
will pay the cost of such delivery (including the cost of insurance against loss
or theft in an amount satisfactory to the sender).
4. MISCELLANEOUS.
4.1. INJUNCTIVE RELIEF. Remedies for breach by the Company of
its obligations to register the Registrable Securities shall be as otherwise set
forth herein. It is hereby agreed and acknowledged that it will be impossible
to measure in money the damages that would be suffered if the parties fail to
comply with any of the obligations herein imposed on them and that in the event
of any such failure, an aggrieved Person will be irreparably damaged and will
not have an adequate remedy at law. Any such Person shall, therefore, be
entitled to injunctive relief, including specific performance, to enforce such
obligations, and if any action should be brought in equity to enforce any of the
provisions of this Agreement, none of the parties hereto shall raise the defense
that there is an adequate remedy at law.
4.2. NOTICES. All notices, other communications or documents
provided for or permitted to be given hereunder, shall be made in writing and
shall be given either personally by hand-delivery, by facsimile transmission, by
mailing the same in a sealed envelope, registered first-class mail, postage
prepaid, return receipt requested, or by air courier guaranteeing overnight
delivery:
(a) If to the Company: Xxxxx & Xxxxx Company
0000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telecopy number: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopy number: (000) 000-0000
(b) If to the Investor: Archon Group, L.P.
000 Xxx Xxxxxxx Xxxx.
Xxxxxx, Xxxxx 00000
Attention: General Counsel
Telecopy number: (000) 000-0000
20
With copies to: Xxxxxxx, Sachs & Co.
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxx
Telecopy number: (000) 000-0000
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx, Esq.
Telecopy number: (000) 000-0000
Each party hereto, by written notice given to the other parties
hereto in accordance with this Section 4.2 may change the address to which
notices, other communications or documents are to be sent to such party. All
notices, other communications or documents shall be deemed to have been duly
given: (i) at the time delivered by hand, if personally delivered; (ii) when
receipt is acknowledged by electronic confirmation, if by facsimile
transmission; (iii) four business days after being deposited in the mail,
postage prepaid, if mailed; and (iv) on the next business day, if timely
delivered to an air courier guaranteeing overnight delivery; PROVIDED, HOWEVER,
that notices of a change of address shall be effective only upon receipt.
4.3. SUCCESSORS AND ASSIGNS.
(a) This Agreement shall inure to the benefit of and be binding
upon the parties, and successors and assigns of each of the parties.
(b) All of the terms, covenants and agreements contained in
this Agreement are solely for the benefit of the parties hereto and their
respective successors and assigns as provided in Section 4.3(a), and no other
parties (including, without limitation, any other stockholder or creditor of the
Company, or any director, officer or employee of the Company) are intended to be
benefitted by, or entitled to enforce, this Agreement.
4.4. 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 principles of conflicts of laws.
4.5. HEADINGS. The headings in this Agreement are inserted
herein for convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
4.6. 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.
21
4.7. ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the
entire agreement among the parties hereto with respect to the subject matter
contained herein, supersedes all prior agreements, negotiations and
understandings, whether written or oral, with respect to the subject matter
hereof, and may not be amended, modified or supplemented, and waivers and
consents to departures from the provisions hereof may not be given, except by an
instrument in writing signed the holders of not less than a majority of the
Registrable Securities and by the Company. There are no restrictions, promises,
warranties or undertakings, other than those set forth in this Agreement.
4.8. WAIVER. No action taken pursuant to this Agreement shall
be deemed to constitute a waiver by the party taking such action of compliance
with any covenants or agreements contained herein. No failure to exercise and
no delay in exercising any right, power or privilege of a party hereunder shall
operate as a waiver nor a consent to the modification of the terms hereof unless
given by that party in writing. The waiver by any party hereto of a breach of
any provision of this Agreement shall not operate or be construed as a waiver of
any preceding or succeeding breach.
4.9. INSPECTION. So long as this Agreement shall be in effect,
this Agreement shall be made available for inspection by any stockholder of the
Company at the principal offices of the Company.
4.10. 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 together
shall constitute one and the same agreement.
22
IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be duly executed as of the date first written above.
XXXXX & XXXXX COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Its: Senior Vice President
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ARCHON GROUP, L.P.
By Archon Gen-Par, Inc.
General Partner
By: /s/ Xxxx Xxxxxxxx
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Its: Vice President
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