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EXHIBIT 10.46
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of the
____ day of October, 1997, is made and entered into by and between The O'Gara
Company, an Ohio corporation (the "Company"), and American International Group,
Inc., a Delaware corporation ("Shareholder").
W I T N E S S E T H:
WHEREAS, in accordance with that certain Plan and Agreement to Merge
dated August 8, 1997 ("Merger Agreement") among the Company, VDE, INC., ▇▇▇▇▇
Holdings, Inc. ("KHI") and ▇▇▇▇▇ ▇▇▇▇▇ ("Kroll"), shares of Common Stock, $.01
par value per share, of the Company (the "Common Stock") will be issued to the
Shareholder; and
WHEREAS, pursuant to the Merger Agreement and to induce the Shareholder
to vote its shares of the capital stock of KHI in favor of the transaction
contemplated by the Merger Agreement, the Company has agreed to provide the
registration rights hereinafter set forth;
NOW, THEREFORE, the parties hereby agree as follows:
1. Certain Definitions.
As used in this Agreement the following terms shall have the meanings
ascribed to them below:
1.1 "Commission": the United States Securities and Exchange
Commission, or any successor agency or commission.
1.2 "Exchange Act": the Securities and Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
1.3 "Holder" or "Holders": (a) the Shareholder or any
Permitted Transferee, individually, or (b) the Shareholder and all Permitted
Transferees, collectively.
1.4 "Permitted Transferee": a Person that controls, is
controlled by or is under common control with the Shareholder.
1.5 "Person": an individual, corporation, limited liability
company, joint venture, partnership, trust, unincorporated organization or other
entity, or a government or any agency or political subdivision thereof.
1.6 "Registrable Securities": any outstanding shares of Common
Stock held of record by the Holders. As to any
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particular Registrable Securities, such securities shall cease to be Registrable
Securities when (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement, (ii) such securities shall have been distributed (other than in a
privately negotiated sale) pursuant to a Rule 144 Open Market Transaction, (iii)
such securities shall cease to be outstanding, or (iv) such securities shall be
held beneficially by any person other than a Shareholder or a Permitted
Transferee (with satisfactory evidence of such beneficial ownership having been
provided to the Company).
1.7 "Rule 144 Open Market Transaction": the sale of securities
pursuant to Rule 144 (as it exists now or may hereafter be amended, or any
successor provision) under the Securities Act.
1.8 "Securities Act": the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
2. Registration Rights.
2.1 Demand Registration.
(a) Subject to Section 2.1(b) below, the Shareholder shall
have the right, on not more than one (1) occasion within three (3) years of the
Effective Time of the Merger to require the Company to file a registration
statement under the Securities Act covering all or part of any Holder's or
Holders' Registrable Securities by delivering a written request therefor to the
Company specifying the number of Registrable Securities to be included in such
registration, and the intended method of distribution thereof (the "Demand
Registration Request"). Subject to Sections 2.3, 2.4, 2.5 and 2.7, the Company
shall use its best efforts to effect the registration under the Securities Act
of the Registrable Securities which the Company has been so requested to
register in the Demand Registration Request, for disposition in accordance with
the intended method of disposition stated in the Demand Registration Request (a
"Demand Registration"). The Company shall not be obligated to effect more than
one (1) Demand Registration. A registration request pursuant to this Agreement
will not be deemed to have been effected unless the registration statement with
respect thereto shall have been declared effective and remained effective for
the period required by Section 2.4(a) of this Agreement.
(b) The demand registration rights granted the Shareholder in
Section 2.1(a) are subject to the following additional limitations: (i) the
Company shall not be obligated to file a registration statement relating to any
Demand Registration Request made more than three (3) years after the Effective
Time of the Merger; (ii) the Company shall not be
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required to file a registration statement pursuant to a Demand Registration
Request on Form S-1 at any time when registration on Form S-3 is available for
use by the Holders in connection with such registration; and (iii) if the Board
of Directors of the Company, in its good faith judgment, reasonably determines
that any registration of Registrable Securities should not be made or continued
due to a valid need not to disclose confidential information or because it would
interfere with any corporate reorganization or material financing, acquisition,
merger or other transaction involving the Company (collectively, a "Valid
Business Reason"), the Company may postpone filing a registration statement
relating to a Demand Registration Request and, in case any such registration
statement has been filed, if the Valid Business Reason has not resulted from
actions taken by the Company, the Company may cause such registration statement
to be withdrawn and its effectiveness terminated or may postpone amending or
supplementing such registration statement, in each case until such Valid
Business Reason no longer exists. The Company shall give written notice to the
Shareholder of its determination to postpone or withdraw a registration
statement for a Valid Business Reason, together with such disclosure to the
Shareholder of the nature of the Valid Business Reason as business necessity and
the requirements of applicable law will allow, and of the fact that the Valid
Business Reason for such postponement or withdrawal no longer exists, in each
case promptly after the occurrence thereof. If the Company shall give any notice
of postponement or withdrawal of any registration statement, the Company shall
not, during the period of postponement or withdrawal, register any capital stock
other than pursuant to a registration statement on Form S-4 or Form S-8. Each
Holder of Registrable Securities agrees that, upon receipt of any notice from
the Company that the Company has determined to withdraw any registration
statement pursuant to clause (iii) above, each Holder will discontinue its
disposition of Registrable Securities pursuant to such registration statement
and, if so directed by the Company, will deliver to the Company all copies,
other than permanent file copies, then in such Holder's possession of the
prospectus covering such Registrable Securities that was in effect at the time
of receipt of such notice. If the Company shall give any notice of withdrawal of
a registration statement, the Company shall, at such time as the Valid Business
Reason that caused such withdrawal no longer exists, file a new registration
statement covering the Registrable Securities that were covered by the withdrawn
registration statement. If the Company shall have withdrawn or prematurely
terminated a registration statement filed under Section 2.1(a) (whether pursuant
to clause (iii) above or as a result of any stop order, injunction or other
order or requirement of the Commission or any other governmental agency or
court), the Company shall not be considered to have effected a registration for
the purposes of this Section 2.1 and such withdraws or terminated registration
shall not constitute a Demand Registration unless and until the Company shall
have filed
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a new registration statement covering the Registrable Securities covered by the
withdrawn registration statement and such registration statement shall have been
declared effective and remained effective for the period required by Section
2.4(a) of this Agreement. If the Company shall give any notice of postponement
of a registration statement, the Company shall, at such time as the Valid
Business Reason that caused such postponement no longer exists, use its best
efforts to effect the registration under the Securities Act of Registrable
Securities in accordance with this Section 2.1.
(c) Subject to Section 2.3, the Company may elect to include
in any registration statement and offering made pursuant to this Section 2.1,
authorized but unissued shares of Common Stock or shares of Common Stock held by
the Company as treasury shares.
(d) If any Demand Registration involves an underwritten
offering, the Shareholder shall have the right to select the investment bankers
and underwriters or managing underwriters to administer the offering of such
Registrable Securities, provided such investment bankers and underwriters shall
be reasonably acceptable to the Company.
2.2 "Piggy-Back" Registrations. (a) If, at any time within three (3)
years after the Effective Time of the Merger, the Company proposes or is
required to register any shares of its Common Stock under the Securities Act
(other than pursuant to Section 2.1) on a registration statement on Form ▇-▇,
▇▇▇▇ ▇-▇ or Form S-3, whether or not for its own account, the Company, on each
such occasion, shall give prompt written notice of its intention to do so to the
Shareholder. Upon the written request of the Shareholder made within fifteen
(15) days following the receipt of any such written notice (which request shall
specify the Registrable Securities intended to be disposed of by each Holder),
the Company shall, subject to Sections 2.2(b), 2.3, 2.4, 2.5 and 2.7 hereof, use
its best efforts to cause all Registrable Securities requested by the
Shareholder to be included in such registration under the Securities Act (with
the securities which the Company at the time proposes to register) to permit the
sale or other disposition by the Holders of such Registrable Securities.
(b)(i) If, at any time after giving written notice of its
intention to register any shares of Common Stock and prior to the effective date
of the registration statement filed in connection therewith the Company shall
determine for any reason not to register such shares of Common Stock, the
Company shall give written notice to the Shareholder and, thereupon, shall be
relieved of its obligation to register any Registrable Securities in connection
with such abandoned registration.
(ii) In case of a determination by the Company to delay the
registration of shares of its Common Stock pursuant to this Section 2.2, the
Company shall be permitted to delay the registration of Registrable Securities
for the same period as the delay in registering all other equity securities to
be included in such registration.
(iii) The Company shall not be obligated to register any
Holder's Registrable Securities pursuant to this Section 2.2 unless the sale or
other disposition of such Registrable Securities is made pursuant to the same
terms, conditions and method of distribution applicable to the securities which
the Company proposes to register.
(iv) If any registration pursuant to Section 2.2 involves an
underwritten offering, the Company shall have the right to select the investment
bankers and underwriters or managing underwriters to administer the offering,
and any Registrable Securities requested by the Shareholder to be included in
any such registration shall be offered pursuant to an underwriting agreement
with the managing underwriter so selected by the Company.
(c) The Shareholder shall have the right to withdraw its
request for inclusion of all or any portion of the Registrable Securities in any
registration statement pursuant to
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this Section 2.2 by giving written notice to the Company of its request to
withdraw (a "Withdrawal Election"); provided, however, that a Withdrawal
Election shall be irrevocable and the Shareholder shall no longer have any right
to include the withdrawn Registrable Securities in such registration statement.
2.3 Allocation of Securities Included in Registration Statement. (a) If
any requested registration pursuant to Section 2.1 involves an underwritten
offering and the managing underwriter shall advise the Company that, in its
view, the number of Registrable Securities requested to be included in such
registration (including those securities requested by the Company to be included
in such registration) exceeds the largest number (the "Section 2.1 Sale Number")
that can be sold in an orderly manner in such offering within a price range
acceptable to the Shareholder, the Company shall include in such registration:
(i) all Registrable Securities requested to be included in
such registration by the Shareholder, to the extent not in excess of the Section
2.1 Sale Number; and
(ii) To the extent that the number of Registrable Securities
requested to be included by the Shareholder is less than the Section 2.1 Sale
Number, such number of securities the Company proposes to register, if any, as
may be included without causing the Section 2.1 Sale Number to be exceeded.
If, as a result of the provisions of this Section 2.3(a), the Shareholder shall
not be entitled to include all Registrable Securities in a registration that the
Shareholder has requested to be included, the Shareholder may make a Withdrawal
Election; provided, however, that the Withdrawal Election shall be irrevocable
and, after making a Withdrawal Election, the Shareholder shall no longer have
any right to include the withdrawn Registrable Securities in the registration
statement; and provided further that if as a result of such Withdrawal Election
no Registrable Securities are to be included in such registration, such
registration shall not constitute a Demand Registration for purposes of
determining whether the limitation on the number of Demand Registrations set
forth in Section 2.1(a) has been met and the Company shall not thereafter be
required to complete such registration.
(b) If any registration pursuant to Section 2.2 involves an
underwritten offering and the managing underwriter shall advise the Company
that, in its view, the number of securities requested to be included in such
registration exceeds the number (the "Section 2.2 Sale Number) that can be sold
in an orderly manner in such offering within a price range acceptable to the
Company, the Company shall include in such offering (i) all the securities the
Company proposes to register, and (ii) to the extent that the shares of Common
Stock to be included by the Company are less than the Section 2.2 Sale Number,
such number of
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Registrable Securities requested to be included by the Shareholder as will bring
the total number of securities to be so registered to the Section 2.2 Sale
Number.
2.4 Registration Procedures. If and whenever the Company is required by
the provisions of this Agreement to use its best efforts to effect or cause the
registration of any Registrable Securities, the Company shall, as expeditiously
as possible:
(a) prepare and file with the Commission a registration
statement with respect to all Registrable Securities required by this Agreement
to be covered thereby, and use its best efforts to cause such registration
statement to become and remain effective until the earliest to occur of (i) the
date on which all Registrable Securities covered by such registration statement
are sold, or (ii) the earlier of the date that is ninety (90) days after such
registration statement becomes effective; provided, however, that before filing
a registration statement or prospectus, or any amendments or supplements
thereto, the Company will furnish to counsel selected by the Shareholder copies
of all documents proposed to be filed, which documents will be subject to the
reasonable review and comments of such counsel;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus as may be
necessary to keep such registration statement effective for the period required
by Section 2.4(a) above and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all Registrable Securities
covered by such registration statement; provided, however, that before filing a
registration statement or prospectus, or any amendments or supplements thereto,
the Company will furnish to counsel selected by the Shareholder copies of all
documents proposed to be filed, which documents will be subject to the
reasonable review and comments of such counsel;
(c) furnish, without charge, to each seller of such
Registrable Securities and each underwriter, if any, of the securities covered
by such registration statement such number of copies of such registration
statement, each amendment and supplement thereto (in each case including all
exhibits), and the prospectus included in such registration statement (including
each preliminary prospectus) in conformity with the requirements of the
Securities Act, and other documents as such seller and underwriter may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities owned by such seller;
(d) use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under such other
securities or blue sky law of such jurisdictions as any sellers of Registrable
Securities or any managing
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underwriter, if any, shall reasonably request, and do any and all other acts and
things which may be reasonably necessary or advisable to enable such sellers or
underwriters to consummate the disposition of the Registrable Securities in such
jurisdictions, except that in no event shall the Company be required to (i)
qualify to do business as a foreign corporation in any jurisdiction where it
would not, but for the requirements of this paragraph (d), be required to be so
qualified, or (ii) subject itself to taxation in any such jurisdiction;
(e) promptly notify each Holder selling Registrable Securities
covered by such registration statement and each underwriter, if any: (i) when
the registration statement, any pre-effective amendment, the prospectus or any
prospectus supplement related thereto or post-effective amendment to the
registration statement has been filed, and, with respect to the registration
statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the Commission for amendments or supplements to the
registration statement or the prospectus related thereto or for additional
information; (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the initiation of
any proceedings for that purpose; (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws of any
jurisdictions or the initiation of any proceeding for such purpose; and (v) of
the existence or occurrence of any fact or event which results or would
reasonably be expected to result in the registration statement, the prospectus
related thereto or any document incorporated therein by reference containing an
untrue statement of a material fact or omitting to state a material fact
required to be stated therein or necessary to make any statement therein in
light of the circumstances under which it was made, not misleading, and in case
the notification relates to an event described in clause (v), the Company shall
promptly prepare and furnish to each such seller and each underwriter, if any, a
reasonable number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(f) comply with all applicable rules and regulations of the
Commission, and make generally available to its securities holders, as soon as
reasonably practicable after the effective date of the registration statement,
an earnings statement (which need not be audited) covering the period of at
least twelve consecutive months beginning with the first day of the Company's
first calendar quarter after the effective date of the registration statement,
which earnings statement shall satisfy
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the provisions of Section 11(a) of the Securities Act and the rules and
regulations thereunder;
(g) use its best efforts to cause all such Registrable
Securities covered by such registration statement to be listed on the principal
securities exchange on which Common Stock of the Company is then listed or, if
not so listed, on the National Association of Securities Dealers automated
quotation system; and
(h) enter into such customary agreements (including, if
applicable, an underwriting agreement in customary form containing, among other
provisions, standard provisions with respect to the indemnification of the
underwriters) and take such other actions as the Shareholder shall reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities.
2.5 Obligation to Discontinue. Each Holder of Registrable Securities
agrees that upon receipt of any notice from the Company of the happening of any
event described in clause (iii) of Section 2.4(e), such Holder will discontinue
such Holder's disposition of Registrable Securities pursuant to the registration
statement until the effectiveness of such registration statement is no longer
suspended or proceedings for that purpose are no longer pending. Each Holder of
Registrable Securities also agrees that upon receipt of any notice from the
Company of the happening of any event described in clause (iv) of Section
2.4(e), such Holder will discontinue such Holder's disposition of Registrable
Securities pursuant to the registration statement in the jurisdiction specified
in such notice until the qualification of the Registrable Securities in the
jurisdiction specified in such notice is no longer suspended or proceedings for
that purpose are no longer pending. Each Holder of Registrable Securities
further agrees that upon receipt of any notice from the Company of the happening
of an event of the kind described in clause (v) of Section 2.4(e), such Holder
will discontinue such Holder's disposition of Registrable Securities pursuant to
the registration statement until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 2.4(e) and, if so
directed by the Company, will use its best efforts to deliver to the Company, or
will agree to destroy and provide a certificate to the Company regarding such
destruction, all copies, other than permanent file copies, then in such Holder's
possession of the prospectus covering such Registrable Securities that was in
effect at the time of receipt of such notice.
2.6 Registration Expenses. The Company shall, whether or not any
registration pursuant to this Agreement becomes effective, pay all expenses
incident to the Company's performance of or compliance with this Article 2,
including, without limitation, (i) Commission or stock exchange registration and
filing fees, (ii) fees and expenses of compliance with state
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securities or blue sky laws and in connection with the preparation of a blue sky
survey, including without limitation, fees and expenses of blue sky counsel,
(iii) printing expenses, (iv) messenger and delivery expenses, (v) internal
expenses (including, without limitation, all salaries and expenses of the
Company's officers and employees performing legal and accounting duties), (vi)
fees and disbursements of counsel for the Company, (vii) fees and disbursements
of all independent public accountants (including the expenses of any audit
and/or "cold comfort" letter) and fees and expenses of other Persons, including
special experts, retained by the Company, and (viii) any fees and disbursements
of underwriters, if any, customarily paid by issuers or sellers of securities.
Notwithstanding the foregoing, the Shareholder shall pay or cause to be paid (a)
all underwriting discounts and commissions and transfer taxes, if any,
attributable to any Holder's Registrable Securities and (b) all fees and
disbursements, if any, of counsel to or other representatives of the
Shareholder.
2.7 Certain Limitations on Registration Rights. In the case of any
registration under Section 2.1 pursuant to an underwritten offer, or in the case
of a registration pursuant to Section 2.2 if the Company has determined to enter
into an underwriting agreement in connection therewith, all Registrable
Securities to be included in such registration shall be subject to an
underwriting agreement and no Person may participate in such registration unless
such Person agrees to sell such Person's securities on the basis provided
therein and completes and/or executes all questionnaires and other documents
which must be executed in connection therewith.
2.8 Limitations on Sale or Distribution of Other Securities. If
requested in writing by the Company or the managing underwriters, if any, of any
registration effected pursuant to Section 2.1 or 2.2, each Holder of Registrable
Securities agrees not to effect any public sale or distribution, including any
Rule 144 Open Market Transaction, of any Registrable Securities, or of any other
equity security of the Company or of any security convertible into or
exchangeable or exercisable for any equity security of the Company (other than
as part of such underwritten public offering) within 15 days before or 90 days
after the effective date of each underwritten offering made pursuant to such
registration statement.
2.9 Indemnification. (a) In the event of any registration of any
securities of the Company under the Securities Act pursuant to Article 2, the
Company shall, and hereby does, indemnify and hold harmless, to the fullest
extent permitted by law, the Shareholder and each other seller of any
Registrable Securities covered by such registration statement, and their
respective directors, officers, fiduciaries, employees, stockholders, members
and general and limited partners (and the directors, officers, employees,
stockholders, members and
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partners thereof), each other Person who participates as an underwriter or
qualified independent underwriter ("independent underwriter"), if any, in the
offering or sale of such securities, each officer, director, employee,
stockholder or partner of such underwriter or independent underwriter, and each
other Person, if any, who controls such seller or any such underwriter within
the meaning of the Securities Act, against any and all losses, claims, damages,
liabilities, actions or proceedings in respect thereof and expenses of
whatsoever nature (including, without limitation, costs and expenses of
investigation and defense, reasonable fees of counsel and any amounts paid in
any settlement effected with the Company's consent) (collectively, "Claims and
Damages") suffered or incurred by an indemnified party or to which any such
indemnified party may become subject under the Securities Act or otherwise,
insofar as such Claims and Damages arise out of or are based upon (i) any untrue
statement or alleged untrue statement under which such securities were
registered under the Securities Act or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, (ii) any untrue statement or alleged untrue statement of a
material fact contained in any prospectus, or any preliminary, final or summary
prospectus or any amendment or supplement thereto, together with the documents
incorporated by reference therein, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or (iii) any violation by the Company of the
Securities Act or any other federal, state or common law rule or regulation
applicable to the Company and related to any action or inaction required of the
Company in connection with any such registration; provided, that the Company
shall not be liable to any such indemnified party in any such case to the extent
such Claims or Damages arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact made in such registration statement or amendment thereof or
supplement thereto or in any such prospectus or any preliminary, final or
summary prospectus in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such indemnified party specifically
for use therein.
(b) If Registrable Securities are included in the securities
as to which any registration under Sections 2.1 or 2.2 is being effected, the
Shareholder and each seller of Registrable Securities (and, if the Company
requires as a condition to including any Registrable Securities in any
registration statement filed in accordance with Section 2.1 or 2.2, any
underwriter and independent underwriter, if any) shall, severally and not
jointly, indemnify and hold harmless, to the extent permitted by law, the
Company, its directors, officers,
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fiduciaries, employees and stockholders, members and general and limited
partners with respect to Claims and Damages arising out of or based upon any
untrue statement or alleged untrue statement of any material fact in, or
omission or alleged omission of any material fact from, such registration
statement, any preliminary, final or summary prospectus contained therein, or
any amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company or its representatives by or on
behalf of the Shareholder specifically for use in such registration statement,
preliminary, final or summary prospectus or amendment or supplement or document
incorporated by reference into any of the foregoing.
(c) Indemnification similar to that specified in Section
2.10(a) and (b) (with appropriate modifications) shall be given by the Company
and each seller of Registrable Securities with respect to any required
registration or other qualification of securities in accordance with this
Agreement under any state securities and blue sky laws.
(d) Any person entitled to indemnification under this
Agreement shall notify promptly the indemnifying party in writing of the
commencement of any action or proceeding with respect to which a claim for
indemnification may be made pursuant to this Section 2.10, but the failure of
any indemnified party to provide such notice shall not relieve the indemnifying
party of its obligations under this Section 2.10, except to the extent the
indemnifying party is damaged or prejudiced thereby. In case any action or
proceeding is brought against an indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to assume the defense thereof, to the extent that it chooses, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party that it so chooses, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof; provided, however, that if representation of both
parties by the same counsel is inappropriate under applicable standards of
professional conduct, then, in any such case, the indemnified party shall have
the right to assume or continue its own defense and the indemnifying party shall
be liable for all Claims and Damages arising thereunder and all reasonable
expenses therefor. If an indemnifying party has elected to assume the defense of
any action or proceeding or has otherwise acknowledged its obligation to
indemnify the indemnified party, such indemnifying party shall in no event be
liable for any settlement effected without its consent. No indemnifying party
shall consent to any settlement or the entry of any judgment without the prior
written consent of the indemnified party unless such settlement or judgment (i)
provides only for monetary damages, which shall be paid in full by the
indemnifying party, and (ii)
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includes as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
of the underlying claim or litigation.
(e) The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made or
omitted by or on behalf of any indemnified party and shall survive the transfer
of the Registrable Securities by any such party.
3. General.
3.1 Rule 144. The Company covenants that it will timely file
the reports required to be filed by it under the Securities Act or the Exchange
Act (including but not limited to the reports under Section 13 and 15 (d) of the
Exchange Act referred to in Rule 144(c)(1) under the Securities Act), and 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 Rule 144 under the Securities Act,
as such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any Holder of
Registrable Securities, the Company will promptly deliver to such Holder a
written statement as to whether it has complied with such requirements.
3.2 Amendments and Waivers. No amendment or waiver of any term or
provision of this Agreement shall be effective unless in writing signed by the
party to be charged. The waiver by any party of a breach of any term or
provision of this Agreement shall not be construed as a waiver of any subsequent
breach.
3.3 Notices. Except as otherwise provided in this Agreement, notices
and other communications under this Agreement shall be in writing and shall be
deemed to have been duly given on the date received by hand delivery, facsimile
transmission or registered mail, postage prepaid, addressed as follows:
to the Company:
The O'Gara Company
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Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
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with a copy to:
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▇▇▇▇, Stettinius & Hollister
1800 Star Bank Center
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Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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and to the Shareholder:
American International Group, Inc.
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Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice President
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
American International Group, Inc.
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Attn: Corporate Secretary
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The Company and the Shareholder, by written notice given in accordance with this
Section 3.3, may change the address to which such notice or other communications
are to be sent.
3.4 Legends. (a) Substantially the following legend shall be placed on
the certificates representing any shares of Common Stock issued to the
Shareholder by the Company pursuant to the Merger Agreement:
"The shares represented by this certificate are subject to the rights
and restrictions contained in a Registration Rights Agreement, dated as
of October __, 1997, copies of which are on file at the office of the
Secretary of the Company."
3.5 Company Representations. The Company represents and warrants to the
Shareholder that:
(a) The Company has all requisite power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby;
(b) The execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of the Company;
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(c) This Agreement has been duly executed and delivered by the
Company and (assuming the due authorization, execution and delivery hereof by
the Shareholder) constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms;
(d) The execution and delivery of this Agreement do not, and
the consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, result in any violation of, or default (with or
without notice or lapse of time, or both) under, (i) any provision of the
charter or organizational documents of the Company, (ii) any judgment, order,
decree, statute, law, ordinance, rule or regulation by which the Company is
bound or to which any of its properties or assets is subject, other than, in the
case of clause (ii), any such violation or default that would not reasonably be
expected to have a material adverse effect on the financial condition or
operations of the Company and its consolidated subsidiaries, taken as a whole,
and would not impair the ability of the Company to perform its obligations under
this Agreement; and
(e) No filing or registration with, or authorization, consent
or approval of, any governmental authority is required by or with respect to the
Company in connection with the execution and delivery by the Company of this
Agreement or the consummation by the Company of the transactions contemplated
hereby, except as otherwise expressly provided herein or in the Merger
Agreement.
3.6 Shareholder Representation. The Shareholder represents and warrants
to the Company that:
(a) The Shareholder has all requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby;
(b) The execution and delivery of this Agreement by the
Shareholder and the consummation by the Shareholder of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of the Shareholder;
(c) This Agreement has been duly executed and delivered by the
Shareholder and (assuming the due authorization, execution and delivery hereof
by the Company) constitutes a valid and binding obligation of the Shareholder,
enforceable against the Shareholder in accordance with its terms;
(d) The execution and delivery of this Agreement do not, and
the consummation of the transactions contemplated hereby and compliance with the
provisions hereof will not, result in any violation of, or default (with or
without notice or lapse of time, or both) under (i) any provision of the charter
or organizational documents of the Shareholder or (ii) any judgment,
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order, decree, statute, law, ordinance, rule or regulation by which the
Shareholder is bound or to which any of its properties or assets is subject
other than, in the case of clause (ii), any such violations, defaults, rights,
liens, security interests, charges or encumbrances that would not reasonably be
expected to have a material adverse effect on the financial condition or
operations of the Shareholder and its consolidated subsidiaries, taken as a
whole, and would not impair the ability of the Shareholder to perform its
obligations under this Agreement.
(e) No filing or registration with, or authorization, consent
or approval of, any governmental authority is required by or with respect to the
Shareholder in connection with the execution and delivery by the Shareholder of
this Agreement or the consummation by the Shareholder of the transactions
contemplated hereby, except as otherwise expressly provided herein.
3.7 Miscellaneous.
(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and the respective
successors and assigns of the parties hereto, whether so expressed or not. If
any Permitted Transferee shall acquire shares of Common Stock from the
Shareholder, whether by operation of law or otherwise (other than pursuant to
any offering registered under the Securities Act or any Rule 144 Open Market
Transaction), the Shareholder shall promptly notify the Company and such
Registrable Securities acquired from the Shareholder shall be held subject to
all of the terms of this Agreement, and by taking and holding such Registrable
Securities such Permitted Transferee shall be entitled to receive the benefits
of and be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Agreement. If the Company shall so request,
any such successor or assign shall agree in writing to acquire and hold the
Registrable Securities acquired from the Shareholder subject to all of the terms
hereof.
(b) This Agreement constitutes the entire understanding
between the parties with respect to the subject matter hereof and supersedes any
and all previous agreements among them relating to the subject matter hereof,
whether written, oral or implied.
(c) This Agreement shall be governed by, and interpreted in
accordance with, the laws of the State of New York, without giving effect to the
conflicts of law principles thereof.
(d) The Section and other headings contained in this Agreement
are for reference purposes only and shall not affect the meaning or
interpretation hereof.
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(e) This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which together shall be deemed to be one and the same
agreement.
(f) Should any term or condition of this Agreement be
determined by a court of competent jurisdiction to be unenforceable for any
reason, including, without limitation, violation of statute or public policy,
such provision shall, if possible, be reformed by the parties hereto or, if the
parties cannot agree, by the appropriate court of competent jurisdiction to
comply with applicable legal requirements in a matter that is as close in its
intent and effect to the original provision as possible or, if such reformation
cannot be accomplished shall be stricken without affecting the validity of any
other term or condition of this Agreement.
(g) Each party hereto shall do and perform or cause to be done
and performed all such further acts and things and shall execute and deliver all
such other agreements, certificates, instruments, and documents as any other
party hereto reasonably may request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
AMERICAN INTERNATIONAL GROUP, INC.
By: ___________________________
Name: _________________________
Title: ________________________
By: ___________________________
Name: _________________________
Title: ________________________
THE O'GARA COMPANY
By: ___________________________
Name: _________________________
Title: ________________________
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