1
EXHIBIT 10.2
--------------------------------------------------------------------------------
MSX INTERNATIONAL, INC.
REGISTRATION RIGHTS AGREEMENT
JANUARY 3, 1997
--------------------------------------------------------------------------------
2
Registration Rights Agreement
TABLE OF CONTENTS
PAGE
RECITALS ......................................................................1
ARTICLE I
DEFINITIONS...........................................................1
1.1 Defined Terms in Stockholders' Agreement.....................1
1.2 Definitions..................................................2
1.3 Cross-References.............................................3
ARTICLE II
DEMAND REGISTRATIONS..................................................4
2.1 Requests for Registration....................................4
2.2 Long-Form Registrations......................................5
2.3 Short-Form Registrations.....................................5
2.4 Effective Registration Statement.............................5
2.5 Priority on Demand Registrations.............................6
2.6 Selection of Underwriters....................................7
2.7 Black-Out Rights and Postponement............................7
ARTICLE III
PIGGYBACK REGISTRATIONS...............................................8
3.1 Right to Piggyback...........................................8
3.2 Piggyback Expenses...........................................8
3.3 Priority on Primary Registrations............................8
3.4 Priority on Secondary Registrations..........................9
ARTICLE IV
HOLDBACK AGREEMENTS...................................................9
4.1 Holdback.....................................................9
4.2 Company Holdback.............................................9
ARTICLE V
REGISTRATION PROCEDURES..............................................10
ARTICLE VI
REGISTRATION EXPENSES................................................14
6.1 Fees Generally..............................................14
6.2 Counsel Fees................................................14
- i -
3
Registration Rights Agreement
PAGE
ARTICLE VII
UNDERWRITTEN OFFERINGS..............................................14
7.1 Demand Underwritten Offerings..............................14
7.2 Incidental Underwritten Offerings..........................15
ARTICLE VIII
INDEMNIFICATION.....................................................15
8.1 Indemnification by the Company.............................15
8.2 Indemnification by a Selling Stockholder...................16
8.3 Indemnification Procedure..................................17
8.4 Underwriting Agreement.....................................18
8.5 Contribution...............................................18
8.6 Periodic Payments..........................................19
ARTICLE IX
RULE 144............................................................19
ARTICLE X
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.........................20
ARTICLE XI
MISCELLANEOUS.......................................................20
11.1 No Inconsistent Agreements.................................20
11.2 Adjustments Affecting Registrable Securities...............20
11.3 Specific Performance.......................................20
11.4 Actions Taken; Amendments and Waivers......................21
11.5 Successors and Assigns.....................................21
11.6 Notices....................................................22
11.7 Headings...................................................23
11.8 Gender.....................................................23
11.9 Invalid Provisions.........................................23
11.10 Governing Law..............................................23
11.11 Consent to Jurisdiction and Service of Process.............24
11.12 Waiver of Jury Trial.......................................24
11.13 Counterparts...............................................25
- ii -
4
Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of January
__, 1997 by and among MSX International, Inc., a Delaware corporation (the
"Company"), MascoTech, Inc. a Delaware corporation ("MascoTech"), Citicorp
Venture Capital, Ltd., a New York corporation ("CVC"), and each of the
individuals whose name appears on the signature pages hereto (individually, a
"Management Group Member" and collectively, the "Management Group"). Capitalized
terms are used as defined in Article I hereto.
RECITALS
WHEREAS, the Company and MascoTech have entered into that certain
Purchase Agreement dated as of November 12, 1996, (as may be amended,
supplemented or modified from time to time, the "Purchase Agreement"), pursuant
to which, among other things, the Company, directly or indirectly through one or
more of its Subsidiaries, is acquiring the Business and the APX Continuing
Business (each as defined in the Purchase Agreement) and all the issued and
outstanding shares of capital stock of MasoTech Limited, a wholly-owned
subsidiary of MascoTech organized under the laws of England;
WHEREAS, the Purchase Agreement provides for the execution and
delivery of a stockholders agreement and a registration rights agreement at the
closing thereunder; and
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the parties hereto are executing and delivering a Stockholders'
Agreement among the parties hereto and dated the date hereof (as amended,
modified or supplemented from time to time, the "Stockholders' Agreement"), and
in connection therewith, the Company has agreed to provide the other parties
hereto with the registration rights set forth in this Agreement;
NOW THEREFORE, in connection with the Purchase Agreement, the
Stockholders' Agreement and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINED TERMS IN STOCKHOLDERS' AGREEMENT.
Unless otherwise defined herein, defined terms used in this Agreement
shall have the meanings set forth in the Stockholders' Agreement.
1.2 DEFINITIONS.
The following capitalized terms, when used in this Agreement, have the
respective meanings set forth below (such definitions to be equally applicable
to both singular and plural forms of the terms defined):
-1-
5
Registration Rights Agreement
"Additional Management Stockholder" means an Additional Stockholder
who is an officer, director or employee of the Company or any of its
Subsidiaries.
"Additional Stockholder" means any person who has executed a Joinder
Agreement as an Additional Stockholder pursuant to Section 6.2 of the
Stockholders' Agreement, and its direct and indirect Permitted Transferees, so
long as any such Person shall hold Registrable Securities, and only to the
extent that (i) the Company has granted such person registration rights as a
Stockholder hereunder and (ii) such Person has executed a Registration Rights
Joinder Agreement.
"Initial Public Offering" means the first time a registration
statement filed under the Securities Act with the Commission respecting an
offering, whether primary or secondary, of Common Stock of the Company (or
securities convertible, exercisable or exchangeable for or into Common Stock of
the Company or rights to acquire Common Stock of the Company or such
securities), which is underwritten on a firmly committed basis, is declared
effective and the securities so registered are issued and sold.
"Institutional Stockholders" means CVC and its direct and indirect
Permitted Transferees, so long as any such Person shall hold Registrable
Securities.
"MascoTech Stockholders" means MascoTech and its direct and indirect
Permitted Transferees, so long as any such Person shall hold Registrable
Securities.
"Qualifying Offering" has the meaning provided in the Stockholders'
Agreement.
"Registrable Securities" means, at any time, the shares of Class A
Common (including all series thereof) and shares of Class B Common (including
all series thereof) then issued and outstanding or which are issuable upon the
conversion, exercise or exchange of Equity Equivalents and any securities into
which such Class A Common or Class B Common shall have been changed or any
securities resulting from any reclassification or recapitalization of such Class
A Common or Class B Common; provided, that "Registrable Securities" shall not
include any shares of Class A Common or Class B Common obtained or transferred
pursuant to an effective registration statement under the Securities Act or in a
Rule 144 Transaction, and provided, further, that "Registrable Securities" shall
not include any shares of Class A Common or Class B Common or other securities
which are held by a Person who is not a Stockholder.
"Registration Rights Joinder Agreement" means a Registration Rights
Joinder Agreement in the form attached hereto as Exhibit A.
-2-
6
Registration Rights Agreement
"Required Institutional Stockholders" means, as of the date of any
determination thereof, Institutional Stockholders which hold Registrable
Securities representing at such time at least a majority (by number of shares)
of the Registrable Securities, on a Fully Diluted Basis, held by all
Institutional Stockholders.
"Required MascoTech Stockholders" means, as of the date of any
determination thereof, MascoTech Stockholders which hold Registrable Securities
representing at such time at least a majority (by number of shares) of the
Registrable Securities, on a Fully Diluted Basis, held by all MascoTech
Stockholders.
"Stockholders" means the Institutional Stockholders, the MascoTech
Stockholders, the Management Stockholders, the Additional Stockholders and any
transferee of any of the foregoing persons who has acquired Registrable
Securities in accordance with the Stockholders' Agreement and who has executed a
Registration Rights Joinder Agreement.
1.3 CROSS-REFERENCES.
The following defined terms, when used in this Agreement, shall have
the meaning ascribed to them in the corresponding Sections of this Agreement
listed below:
"Black-Out Notice" -- Section 2.7
"Company" -- Preamble
"Demand Registrations" -- Section 2.1
"Long-Form Registrations" -- Section 2.1
"Piggyback Holders" -- Section 3.1
"Piggyback Registration" -- Section 3.1
"Purchase Agreement" -- Recitals
"Registration Expenses" -- Section 6.1
"Requesting Investors" -- Section 2.1
"Short-Form Registrations" -- Section 2.1
"Stockholders' Agreement" -- Recitals
-3-
7
Registration Rights Agreement
ARTICLE II
DEMAND REGISTRATIONS
2.1 REQUESTS FOR REGISTRATION.
(a) At any time after the date hereof, either the Required
Institutional Stockholders or the Required MascoTech Stockholders (the
"Requesting Investors") may request that the Company effect a Qualifying
Offering, and the Company shall use all reasonable efforts to effect Qualifying
Offering within 90 days after its receipt of such request; provided that, prior
to the date that falls eighteen months after the date hereof, no Requesting
Investor may request a Qualifying Offering, unless that Requesting Investor
intends that such offering would satisfy the criteria set forth in item (i) of
the definition of "Qualifying Offering". Within 10 days after its receipt of
such request, the Company will give written notice of such request to all other
holders of Registrable Securities. The Company will use all reasonable efforts
to include in the Qualifying Offering (i) all Registrable Securities which the
Requesting Investors have requested to be included therein and (ii) all other
Registrable Securities with respect to which the Company has received written
requests for inclusion therein by the Stockholders within thirty (30) days after
the receipt of the Company's notice, subject in each case to the provisions of
Section 2.5. The Company will pay all Registration Expenses in connection with a
Qualifying Offering requested in accordance with Section 2.1(a). All
registrations requested pursuant to this Section 2.1 are referred to herein as
"Demand Registrations."
(b) Subject to Sections 2.2, 2.3 and 2.7, at any time from and after
the date which is 91 days after the closing of an Initial Public Offering, each
of the Required Institutional Stockholders, on the one hand, and the Required
MascoTech Stockholders, on the other hand, may request registration under the
Securities Act of all or part of their Registrable Securities (i) on Form S-1 or
S-2 or any similar long-form registration statement (any such registration, a
"Long-Form Registration"), and (ii) on Form S-3 or any similar short-form
registration statement (any such registration, a "Short-Form Registration"), if
the Company qualifies to use such short form. Within 10 days after its receipt
of any such request, the Company will give written notice of such request to all
other holders of Registrable Securities. Thereafter, the Company will use all
reasonable efforts to effect the registration under the Securities Act on the
form requested by the Requesting Investors, and to include in such registration,
(i) all Registrable Securities which the Requesting Investors have so requested
to be included therein and (ii) all other Registrable Securities with respect to
which the Company has received written requests for inclusion therein by the
Stockholders within thirty (30) days after their receipt of the Company's
notice, subject in each case to the provisions of Section 2.5.
(c) Any Requesting Investor which requests a Demand Registration
under this Article II may, at any time prior to the effective date of the
registration statement relating to such registration, revoke such request by
providing written notice to the Company; provided,
-4-
8
Registration Rights Agreement
however, that notwithstanding such revocation, such Demand Registration shall be
deemed a request for purposes of Section 2.2 unless, after consultation with the
Company and any proposed underwriter, the Requesting Investor in good faith
determines that the Registrable Securities which it has requested to be
registered would not be sold pursuant to such Demand Registration within a
reasonable amount of time or at a price acceptable to such Requesting Investor.
(d) Any request for a Demand Registration pursuant to this Article II
shall specify the number of shares of Registrable Securities proposed to be sold
by the Requesting Investor and the intended method of disposition thereof.
2.2 LONG-FORM REGISTRATIONS.
The Required Institutional Stockholders will be entitled to request
pursuant to this Article II up to three Long-Form Registrations and the Required
MascoTech Stockholders will be entitled to request pursuant to this Article II
up to three Long-Form Registrations. The Company will pay all Registration
Expenses in connection with any such Long-Form Registrations. All Long-Form
Registrations (unless otherwise requested by the relevant Requesting Investor)
shall be underwritten registrations.
2.3 SHORT-FORM REGISTRATIONS.
In addition to the Long-Form Registrations provided pursuant to
Section 2.2, the Required Institutional Stockholders and Required MascoTech
Stockholders will each be entitled to request an unlimited number of Short-Form
Registrations in which the Company will pay all Registration Expenses. Demand
Registrations will be Short-Form Registrations whenever the Company is qualified
to use any applicable short form. Once the Company has become subject to the
reporting requirements of the Exchange Act, the Company will use its reasonable
best efforts to make Short-Form Registrations available for the sale of
Registrable Securities.
2.4 EFFECTIVE REGISTRATION STATEMENT.
No Demand Registration shall be deemed to have been effected for
purposes of Section 2.2:
(i) unless a registration statement with respect thereto has become
effective;
(ii) if, after it has become effective, any stop order, injunction or
other order or requirement of the Commission or other governmental
agency or court for any reason, affecting any of the securities
covered by such registration statement, is issued or
-5-
9
Registration Rights Agreement
threatened by the Commission or other governmental agency or court;
(iii) if the Company delivers a Black-Out Notice with respect to such
requested registration;
(iv) if the conditions to closing specified in the purchase agreement
or underwriting agreement entered into in connection with such
registration are not satisfied by reason of a failure by or inability
of the Company to satisfy any of such conditions, or the occurrence of
an event outside the reasonable control of the relevant Requesting
Investor;
(v) the revocation notice described in the proviso to Section 2.1(c)
has been delivered by the Requesting Investor; or
(vi) if the Requesting Investor is not able to register and sell at
least ninety percent (90%) of the amount of Registrable Securities
which were requested to be included in such registration;
provided that the Company will pay all Registration Expenses in connection with
any registration if pursuant to this Section 2.4 the registration is deemed not
to have been effected.
2.5 PRIORITY ON DEMAND REGISTRATIONS.
(a) The Company will not include in any Demand Registration any
securities which are not Registrable Securities without the written consent of
the Required Institutional Stockholders (if the Required Institutional
Stockholders have requested such Demand Registration) or the Required MascoTech
Stockholders (if the Required MascoTech Stockholders have requested such Demand
Registration).
(b) If the Requesting Investors and other holders of Registrable
Securities request Registrable Securities to be included in a Demand
Registration which is an underwritten offering and the managing underwriters
advise the Company in writing that in their opinion the number of Registrable
Securities requested to be included exceeds the number of Registrable Securities
which can be sold in such offering within a price range acceptable to the
Required Institutional Stockholders (if the Required Institutional Stockholders
have requested the Demand Registration) or the Required MascoTech Stockholders
(if the Required MascoTech Stockholders have requested the Demand Registration),
the Company will include any securities to be sold in
-6-
10
Registration Rights Agreement
such Demand Registration in the following order: (i) first, the Registrable
Securities owned by the Requesting Investors; (ii) second, the Registrable
Securities requested to be included in such registration by other Stockholders,
provided, that if the managing underwriters determine in good faith that a lower
number of Registrable Securities requested to be included by other Stockholders
should be included, then only that lower number of Registrable Securities
requested to be included by other Stockholders shall be included in such
registration, and such other Stockholders shall participate in the registration
pro rata based upon their total ownership, on a Fully Diluted Basis, of
Registrable Securities, provided, further, that if the managing underwriters
determine in good faith that a lower number of Registrable Securities held by
Management Stockholders and/or Additional Management Stockholders than such pro
rata portion should be included, then such lower number shall be included and,
as a result thereof, a greater number of Registrable Securities owned by the
other Stockholders may be sold; (iii) third, the securities the Company proposes
to sell and (iv) fourth, any securities other than Registrable Securities to be
sold by persons other than the Company included pursuant to Section 2.5(a)
hereof. Any Person other than Stockholders including any securities in such
registration pursuant to Article II hereof must pay its share of the
Registration Expenses as provided in Article VI hereof.
2.6 SELECTION OF UNDERWRITERS.
The Requesting Investors will have the right to select the
underwriters and the managing underwriter to administer any Demand Registration
(which underwriters and managing underwriter shall be reasonably acceptable to
the Company).
2.7 BLACK-OUT RIGHTS AND POSTPONEMENT.
(a) The Company shall not be required to provide a Demand
Registration if the Company, within the 90-day period preceding the date of a
request for a Demand Registration, has effected a registration of securities in
which the Requesting Investors were entitled to participate to the fullest
extent pursuant to Demand Registration rights under Article II hereof or
Piggyback Registration rights under Article III hereof.
(b) The Company may, upon written notice (a "Black-Out Notice") to
the Requesting Investor requesting a Demand Registration, require such
Requesting Investor to withdraw such Demand Registration upon the good faith
determination by the Company that such postponement is necessary (i) to avoid
disclosure of material non-public information or (ii) as a result of a pending
material financing or acquisition transaction, and in each case, each of the
Required Institutional Stockholders and the Required MascoTech Stockholders may
not request another Demand Registration for a period of up to sixty (60) days,
as specified by the Company
-7-
11
Registration Rights Agreement
in such Black-Out Notice. The Company may only give a Black-Out Notice where the
giving of such notice has been specifically approved by the Company's Board of
Directors which for so long as the Institutional Stockholders or the MascoTech
Stockholders shall have the right to designate directors pursuant to Section 5.1
of the Stockholders' Agreement and they are exercising such right to designate,
shall require an Institutional Affirmative Board Vote and the MascoTech
Affirmative Board Vote, as the case may be. Upon receipt of a Black-Out Notice,
the Demand Registration shall be deemed to be rescinded and retracted and shall
not be counted as a Demand Registration for any purpose. The Company may not
deliver more than one Black-Out Notice in any twelve-month period.
ARTICLE III
PIGGYBACK REGISTRATIONS
3.1 RIGHT TO PIGGYBACK.
Whenever the Company proposes (other than pursuant to a Demand
Registration or an Initial Public Offering (unless otherwise agreed by the
Company)) to register any of its equity securities under the Securities Act
(whether for the Company's own account (other than on Forms S-4 or S-8 or any
successor forms), or for the account of any other Person)(a "Piggyback
Registration"), the Company will give prompt written notice to all Institutional
Stockholders, MascoTech Stockholders, Management Stockholders and Additional
Stockholders (the "Piggyback Holders") of its intention to effect such a
registration, and such notice shall offer the Piggyback Holders the opportunity
to register on the same terms and conditions such number of shares of
Registrable Securities as such Piggyback Holder may request. The Company will
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 30 days
after the receipt by such Piggyback Holder of the Company's notice, subject to
the provisions of Sections 3.3 and 3.4.
3.2 PIGGYBACK EXPENSES.
The Registration Expenses of the holders of Registrable Securities
will be paid by the Company in all Piggyback Registrations.
3.3 PRIORITY ON PRIMARY REGISTRATIONS.
If a Piggyback Registration is an underwritten primary registration on
behalf of the Company, and the managing underwriters advise the Company in
writing that in their opinion the number of securities requested to be included
in such registration are such that the success of the offering would be
materially and adversely affected, the Company will include any securities to be
sold in such registration in the following order: (i) first, the securities the
-8-
12
Registration Rights Agreement
Company proposes to sell, (ii) second, the Registrable Securities requested to
be included in such registration by the Piggyback Holders, provided that, if the
managing underwriters in good faith determine that a lower number of Registrable
Securities should be included, then the Company shall be required to include in
such registration only that lower number of Registrable Securities, and the
Piggyback Holders shall participate in the registration pro rata based upon
their total ownership, on a Fully Diluted Basis, of Registrable Securities,
provided, further, that if the managing underwriters determine in good faith
that a lower number of Registrable Securities held by Management Stockholders
and/or Additional Management Stockholders than such pro rata portion should be
included, then such lower number shall be included and, as a result thereof, a
greater number of Registrable Securities owned by the other Stockholders shall
be included and (iii) third, other securities requested to be included in such
registration.
3.4 PRIORITY ON SECONDARY REGISTRATIONS.
If a Piggyback Registration is an underwritten secondary registration
on behalf of holders of the Company's securities and the managing underwriters
advise the Company in writing that in their opinion the number of securities
requested to be included in such registration are such that the success of the
offering would be materially and adversely affected, the Company will include
any securities to be sold in such registration in the following order: (i)
first, the securities of such holders, (ii) second, the Registrable Securities
requested to be included in such registration by the Piggyback Holders pursuant
to Section 3.1 hereof, provided that, if the managing underwriters in good faith
determine that a lower number of Registrable Securities should be included, then
the Company shall be required to include in such registration only that lower
number of Registrable Securities, and the Piggyback Holders shall participate in
the registration pro rata based upon their total ownership, on a Fully Diluted
Basis, of Registrable Securities, provided, further, that if the managing
underwriters determine in good faith that a lower number of Registrable
Securities held by Management Stockholders and/or Additional Management
Stockholders than such pro rata portion should be included, then such lower
number shall be included and, as a result thereof, a greater number of
Registrable Securities owned by the other Stockholders may be sold and (iii)
third, other securities requested to be included in such registration.
ARTICLE IV
HOLDBACK AGREEMENTS
4.1 HOLDBACK.
Each holder of Registrable Securities agrees not to effect any public
sale or distribution of Registrable Securities, or any securities convertible,
exchangeable or exercisable for or into such securities, during the seven days
prior to, and the 90-day period beginning on,
-9-
13
Registration Rights Agreement
the effective date of an Initial Public Offering or any underwritten Demand
Registration or any underwritten Piggyback Registration in which such holder had
an opportunity to participate without cutback under Article III hereof (in each
case except as part of such underwritten registration), unless the managing
underwriters of the registered public offering otherwise agree.
4.2 COMPANY HOLDBACK.
The Company agrees (i) not to effect any public sale or distribution
of its equity securities, or any securities convertible, exchangeable or
exercisable for or into such securities, during the fourteen (14) days prior to,
and during the 90-day period beginning on, the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration in
which holders of Registrable Securities are selling stockholders (except as part
of such underwritten registration or pursuant to registrations on Forms S-4 or
S-8 or any successor form), unless the managing underwriters of such
underwritten Demand Registration or underwritten Piggyback Registration
otherwise agree, and (ii) to use all reasonable efforts to cause each holder of
at least five percent (5%) (on a fully-diluted basis) of its equity securities
or any securities convertible, exchangeable or exercisable for or into such
securities, to agree not to effect any public sale or distribution of any such
securities during such period (except as part of such underwritten registration,
if otherwise permitted), unless the managing underwriters of such underwritten
Demand Registration or underwritten Piggyback Registration otherwise agree.
ARTICLE V
REGISTRATION PROCEDURES
Whenever the Stockholders have requested that any Registrable
Securities be registered pursuant to this Agreement, the Company will use all
reasonable efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition thereof, and
pursuant thereto the Company will as expeditiously as possible (or, in the case
of clause (p) below, will not):
(a) prepare and file with the Commission a registration statement
with respect to such Registrable Securities (such registration statement to
include all information which the holders of the Registrable Securities to be
registered thereby shall reasonably request) and use all reasonable efforts to
cause such registration statement to become effective, provided that as promptly
as practicable before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company will (i) furnish to counsel
selected by the holders of a majority (by number of shares) of the Registrable
Securities covered by such registration statement (and, if the Required
MascoTech Stockholder has requested inclusion of any Registrable Securities
pursuant to Article II or Article III, to counsel for the Required MascoTech
Stockholder) copies of all such documents proposed to be filed, and the Company
shall not file
-10-
14
Registration Rights Agreement
any such documents to which such counsel shall have reasonably objected on the
grounds that such document does not comply in all material respects with the
requirements of the Securities Act, and (ii) notify each holder of Registrable
Securities covered by such registration statement of (x) any request by the
Commission to amend such registration statement or amend or supplement any
prospectus, or (y) any stop order issued or threatened by the Commission, and
take all reasonable actions required to prevent the entry of such stop order or
to remove it if entered;
(b) (i) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective
until all Registrable Securities covered by such Registration Statement are sold
in accordance with the intended plan of distribution set forth in such
Registration Statement and (ii) comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities covered by such
registration statement, without change, such number of conformed copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus
and, in each case, including all exhibits thereto and documents incorporated by
reference therein) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller thereof shall reasonably request, to keep such registration or
qualification in effect for so long as such registration statement remains in
effect and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such seller, provided,
however, that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this clause (d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction;
(e) furnish to each seller of Registrable Securities a signed copy,
addressed to such seller (and the underwriters, if any) of an opinion of counsel
for the Company or special counsel to the selling stockholders, dated the
effective date of such registration statement (and, if such registration
statement includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), reasonably satisfactory in form and
substance to such seller, covering substantially the same matters with respect
to such registration statement (and the
-11-
15
Registration Rights Agreement
prospectus included therein) as are customarily covered in opinions of issuer's
counsel delivered to the underwriters in underwritten public offerings, and such
other legal matters as the seller (or the underwriters, if any) may reasonably
request;
(f) notify each seller of Registrable Securities, at a time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the occurrence of any event known to the Company as a result of which
the prospectus included in such registration statement, as then in effect,
contains an untrue statement of a material fact or omits to state any fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made, and, at the
request of any such seller, the Company will prepare and furnish such seller a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary 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 not misleading in
the light of the circumstances under which they were made and in the event the
Company shall give such notice, the Company shall extend the period during which
such registration statement shall be maintained effective by the number of days
during the period from and including the date of the giving of such notice to
such seller to the date when the Company made available to such seller an
appropriately amended or supplemented prospectus;
(g) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and to enter into such customary agreements as may be required in
furtherance thereof, including without limitation listing applications and
indemnification agreements in customary form;
(h) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(i) enter into such customary arrangements and take all such other
actions as the holders of a majority (by number of shares) of the Registrable
Securities being sold or the underwriters, if any, reasonably request in order
to expedite or facilitate the disposition of such Registrable Securities
(including without limitation use its best efforts to effect a stock split or a
combination of shares);
(j) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information
-12-
16
Registration Rights Agreement
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(k) subject to other provisions hereof, use all reasonable efforts to
cause such Registrable Securities covered by such registration statement to be
registered with or approved by such other governmental agencies or authorities
or self-regulatory organizations as may be necessary to enable the sellers
thereof to consummate the disposition of such Registrable Securities;
(l) use all reasonable efforts to obtain a "comfort" letter, dated
the effective date of such registration statement (and, if such registration
includes an underwritten offering, dated the date of the closing under the
underwriting agreement), signed by the independent public accountants who have
certified the Company's financial statements, addressed to each seller, and to
the underwriters, if any, covering substantially the same matters with respect
to such registration statement (and the prospectus included therein) and with
respect to events subsequent to the date of such financial statements, as are
customarily covered in accountants' letters delivered to the underwriters in
underwritten public offerings of securities and such other financial matters as
such seller (or the underwriters, if any) may reasonably request;
(m) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the Commission and make available to its
security holders, in each case as soon as practicable, an earnings statement
covering a period of at least twelve months, beginning with the first month
after the effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act;
(n) permit any holder of Registrable Securities, which holder, in the
sole judgment, exercised in good faith, of such holder might be deemed to be a
controlling person of the Company (within the meaning of the Securities Act or
the Exchange Act) to participate in the preparation of any registration
statement covering such holder's Registrable Securities and to include therein
material, furnished to the Company in writing, which in the reasonable judgment
of such holder should be included and which is reasonably acceptable to the
Company;
(o) use all reasonable efforts to obtain the lifting at the earliest
possible time of any stop order suspending the effectiveness of any registration
statement or of any order preventing or suspending the use of any preliminary
prospectus;
(p) at any time file or make any amendment to a registration
statement, or any amendment of or supplement to a prospectus (including
amendments of the documents incorporated by reference into the prospectus), of
which each seller of Registrable Securities or the managing underwriters shall
not have previously been advised and furnished a copy or to
-13-
17
Registration Rights Agreement
which the sellers of Registrable Securities, the managing underwriters, or
counsel for such sellers or for the underwriters shall reasonably object;
(q) make such representations and warranties (subject to appropriate
disclosure schedule exceptions) to sellers of Registrable Securities and the
underwriters, if any, in form, substance and scope as are customarily made by
issuers to underwriters and selling holders, as the case may be, in underwritten
public offerings of substantially the same type; and
(r) if any proposed registration statement refers to any seller by
name or otherwise as the holder of any securities of the Company then (whether
or not such seller is or might be deemed to be a controlling person of the
Company), (i) the Company shall be required at the request of such seller to
insert therein language, in form and substance reasonably satisfactory to such
seller, the Company and the managing underwriters, to the effect that the
holding by such seller of such securities is not to be construed as a
recommendation by such seller of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such seller
will assist in meeting any future financial requirements of the Company, or (ii)
in the event that such reference to such seller by name or otherwise is not
required by the Securities Act, any similar Federal or state statute, or any
rule or regulation of any other regulatory body having jurisdiction over the
offering, then in force, the Company shall be required at the request of such
seller to delete the reference to such seller.
ARTICLE VI
REGISTRATION EXPENSES
6.1 FEES GENERALLY.
All expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation internal expenses (including
without limitation all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance, the expenses and fees
for listing the securities to be registered on each securities exchange on which
similar securities issued by the Company are then listed, all registration and
filing fees, fees and expenses of compliance with securities or blue sky laws
(including without limitation reasonable fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities), printing
expenses, messenger and delivery expenses, and fees and disbursements of counsel
for the Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by the Company
(all such expenses being herein called "Registration Expenses") shall be borne
by the Company, except that each Stockholder shall pay any underwriting fees,
discounts or commissions attributable to the sale of its Registrable Securities.
-14-
18
Registration Rights Agreement
6.2 COUNSEL FEES.
In connection with each Demand Registration, the Company will
reimburse the Requesting Investor for such Demand Registration for the
reasonable fees and disbursements of one counsel chosen by the relevant
Requesting Investor.
ARTICLE VII
UNDERWRITTEN OFFERINGS
7.1 DEMAND UNDERWRITTEN OFFERINGS.
If requested by the underwriters for any underwritten offerings of
Registrable Securities pursuant to a Demand Registration, the Company will enter
into an underwriting agreement with such underwriters for such offering, such
agreement to be satisfactory in substance and form to the Requesting Investor
requesting such Demand Registration and the underwriters, and to contain such
representations and warranties by the Company and such other terms as are
generally included in agreements of this type, including without limitation
indemnities customarily included in such agreements. The holders of the
Registrable Securities will cooperate in good faith with the Company in the
negotiation of the underwriting agreement. The holders of Registrable Securities
to be distributed by such underwriters may 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. The Company shall cooperate with any such
holder of Registrable Securities in order to limit any representations or
warranties to, or agreements with, the Company or the underwriters to be made by
such holder only to those representations, warranties or agreements regarding
such holder, such holder's Registrable Securities and such holder's intended
method of distribution and any other representation required by applicable law.
7.2 INCIDENTAL UNDERWRITTEN OFFERINGS.
If the Company at any time proposes to register any of its securities
under the Securities Act as contemplated by Article III of this Agreement and
such securities are to be distributed by or through one or more underwriters,
the Company will, if requested by any holder of Registrable Securities as
provided in Article III of this Agreement, arrange for such underwriters to
include all the Registrable Securities to be offered and sold by such holder,
subject to the limitations set forth in Article III hereof, among the securities
to be distributed by such underwriters. The holders of Registrable Securities to
be distributed by such underwriters shall
-15-
19
Registration Rights Agreement
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. The Company shall cooperate with any such
holder of Registrable Securities in order to limit any representations or
warranties to, or agreements with, the Company or the underwriters to be made by
such holder only to those representations, warranties or agreements regarding
such holder, such holder's Registrable Securities and such holder's intended
method of distribution and any other representation required by applicable law.
ARTICLE VIII
INDEMNIFICATION
8.1 INDEMNIFICATION BY THE COMPANY.
The Company agrees to indemnify and hold harmless, to the fullest
extent permitted by law, each of the holders of any Registrable Securities
covered by such registration statement, each other Person, if any, who controls
such holder within the meaning of the Securities Act or the Exchange Act, and
each of their respective directors, general partners and officers, as follows:
(i) against any and all loss, liability, claim, damage or expense
arising out of or based upon an untrue statement or alleged untrue
statement of a material fact contained in any registration statement
(or any amendment or supplement thereto), including all documents
incorporated therein by reference, or in any preliminary prospectus or
prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of 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) against any and all loss, liability, claim, damage and expense to
the extent of the aggregate amount paid in settlement of any
litigation, investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission or any such
-16-
20
Registration Rights Agreement
alleged untrue statement or omission, if such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense incurred by them in connection with
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under clause
(i) or (ii) above;
provided, that this indemnity does not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such holder expressly for use in the preparation of any registration statement
(or any amendment or supplement thereto), including all documents incorporated
therein by reference, or in any preliminary prospectus or prospectus (or any
amendment or supplement thereto); and provided, further, that the Company will
not be liable to any holder under the indemnity agreement in this Section 8.1,
with respect to any preliminary prospectus or the final prospectus or the final
prospectus as amended or supplemented, as the case may be, to the extent that
any such loss, liability, claim, damage or expense of such controlling Person or
holder results from the fact that such holder sold Registrable Securities to a
Person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the final prospectus or of the final
prospectus as then amended or supplemented, whichever is most recent, if the
Company has previously and timely furnished copies thereof to such holder. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of such holder or any such director, officer, general
partner, or other controlling person and shall survive the transfer of such
securities by such seller.
8.2 INDEMNIFICATION BY A SELLING STOCKHOLDER.
In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder agrees to indemnify
and hold harmless (in the same manner and to the same extent as set forth in
Section 8.1 of this Agreement), to the extent permitted by law, the Company and
its directors, officers and controlling Persons, and their respective directors,
officers and general partners, with respect to any statement or alleged
statement in or omission or alleged omission 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 that relates only to such holder or the plan of distribution that is
expressly furnished to the Company by or on behalf of such holder for use in the
-17-
21
Registration Rights Agreement
preparation of such registration statement, preliminary, final or summary
prospectus or amendment or supplement. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of the Company,
or such holder, as the case may be, or any of their respective directors,
officers, controlling Persons or general partners and shall survive the transfer
of such securities by such holder. With respect to each claim pursuant to this
Section 8.2, each holder's maximum liability under this Section shall be limited
to an amount equal to the net proceeds actually received by such holder (after
deducting any underwriting discount and expenses) from the sale of Registrable
Securities being sold pursuant to such registration statement or prospectus by
such holder.
8.3 INDEMNIFICATION PROCEDURE.
Promptly after receipt by an indemnified party hereunder of written
notice of the commencement of any action or proceeding involving a claim
referred to in Section 8.1 or Section 8.2 of this Agreement, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party, give written notice to the latter of the commencement of such action;
provided that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under Section
8.1 or Section 8.2 of this Agreement except to the extent that the indemnifying
party is actually prejudiced by such failure to give notice. In case any such
action is brought against an indemnified party, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified, to the extent that it may wish,
with counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal fees and expenses subsequently incurred by the
latter in connection with the defense thereof, unless in such indemnified
party's reasonable judgment an actual or potential conflict of interest between
such indemnified and indemnifying parties may exist in respect of such claim, in
which case the indemnifying party shall not be liable for the fees and expenses
of (i) more than one counsel (in addition to any local counsel) for all holders
of Registrable Securities, selected by a majority (by number of shares) of the
holders of Registrable Securities, or (ii) more than one counsel (in addition to
any local counsel) for the Company in connection with any one action or separate
but similar or related actions. An indemnifying party who is not entitled to
(pursuant to an immediately preceding sentence), 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 (in addition to any local counsel) for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party an actual or potential conflict of interest
may exist between such indemnified party and any other of such indemnified
parties with respect to such claim, in which event the indemnifying party shall
be obligated to pay the fees and expenses of such additional counsel or
counsels. The indemnifying party will not, without the prior written consent of
each indemnified party, settle or compromise or consent to the entry of any
judgment in any pending
-18-
22
Registration Rights Agreement
or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not such indemnified party
or any Person who controls such indemnified party is a party to such claim,
action, suit or proceeding), unless such settlement, compromise or consent
includes an unconditional release of such indemnified party from all liability
arising out of such claim, action, suit or proceeding. Notwithstanding anything
to the contrary set forth herein, and without limiting any of the rights set
forth above, in any event any party will have the right to retain, at its own
expense, counsel with respect to the defense of a claim.
8.4 UNDERWRITING AGREEMENT.
The Company and each holder of Registrable Securities requesting
registration shall provide for the foregoing indemnity (with appropriate
modifications) in any underwriting agreement with respect to any required
registration or other qualification of securities under any Federal or state law
or regulation of any governmental authority.
8.5 CONTRIBUTION.
If the indemnification provided for in Sections 8.1 and 8.2 of this
Agreement is unavailable to hold harmless an indemnified party under such
Sections, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in Section 8.1 or Section 8.2 of this Agreement in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand, and the indemnified party on the other, in connection
with statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations,
including without limitation the relative benefits received by each party from
the offering of the securities covered by such registration statement, the
parties' relative knowledge and access to information concerning the matter with
respect to which the claim was asserted and the opportunity to correct and
prevent any statement or omission. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or the indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statements or omission. The
parties hereto agree that it would not be just and equitable if contributions
pursuant to this Section 8.5 were to be determined by pro rata or per capita
allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the first and second sentences of this
Section 8.5. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this Section
8.5 shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
action or claim (which shall be limited as provided in Section 8.3 of this
Agreement if the indemnifying party has assumed the
-19-
23
Registration Rights Agreement
defense of any such action in accordance with the provisions thereof) which is
the subject of this Section 8.5. Promptly after receipt by an indemnified party
under this Section 8.5 of notice of the commencement of any action against such
party in respect of which a claim for contribution may be made against an
indemnifying party under this Section 8.5, such indemnified party shall notify
the indemnifying party in writing of the commencement thereof if the notice
specified in Section 8.3 of this Agreement has not been given with respect to
such action; provided that the omission to so notify the indemnifying party
shall not relieve the indemnifying party from any liability which it may
otherwise have to any indemnified party under this Section 8.5, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. The Company and each holder of Registrable Securities agrees with
each other and the underwriters of the Registrable Securities, if requested by
such underwriters, that (i) the underwriters' portion of such contribution shall
not exceed the underwriting discount and (ii) that the amount of such
contribution shall not exceed an amount equal to the net proceeds actually
received by such indemnifying party from the sale of Registrable Securities in
the offering to which the losses, liabilities, claims, damages or expenses of
the indemnified parties relate. 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.
8.6 PERIODIC PAYMENTS.
The indemnification required by this Article VIII shall be made by
periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or expense, loss, damage or liability
is incurred.
ARTICLE IX
RULE 144
If the Company shall have filed a registration statement pursuant to
the requirements of Section 12 of the Exchange Act or a registration statement
pursuant to the requirements of the Securities Act, the Company covenants that
it will file the reports required to be filed by it under the Securities Act and
the Exchange Act (or, if the Company is not required to file such reports, it
will, upon the request of any holder of Registrable Securities, make publicly
available other information), 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 shares of Registrable Securities
without registration under the Securities Act in compliance with (i) Rule 144
under the Securities Act, as such Rule 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.
-20-
24
Registration Rights Agreement
ARTICLE X
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 Person or Persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements,
escrow agreements and other documents reasonably required under the terms of
such underwriting arrangements and consistent with the provisions of this
Agreement.
ARTICLE XI
MISCELLANEOUS
11.1 NO INCONSISTENT AGREEMENTS.
The Company will not hereafter enter into any agreement which is
inconsistent with, or would otherwise restrict the performance by the Company
of, its obligations hereunder.
11.2 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES.
The Company will not take any action, or fail to take any action which
it may properly take, with respect to its securities which would adversely
affect the ability of the holders of Registrable Securities to include
Registrable Securities in a registration undertaken pursuant to this Agreement
or which, to the extent within its control, would adversely affect the
marketability of such Registrable Securities in any such registration (including
without limitation effecting a stock split or a combination of shares).
11.3 SPECIFIC PERFORMANCE.
The parties hereto agree that irreparable damage would occur in the
event any provision of this Agreement was not performed in accordance with the
terms hereof and that the parties shall be entitled to specific performance of
the terms hereof, in addition to any other remedy at law or equity; provided,
however, that each of the parties agrees to provide other parties with written
notice at least two business days prior to filing any motion or other pleading
seeking a temporary restraining order, a temporary or permanent injunction,
specific performance, or any other equitable remedy and to give other parties
and their counsel a reasonable opportunity to attend and participate in any
judicial or administrative hearing or other proceeding held to adjudicate or
rule upon any such motion or pleading.
-21-
25
Registration Rights Agreement
11.4 ACTIONS TAKEN; AMENDMENTS AND WAIVERS.
(a) Whenever any action is required under this Agreement to be taken
by, or any vote or consent is required of,
(i) the Management Stockholders (and Additional Management
Stockholders) (as a group as opposed to the exercise by a Management
Stockholder or Additional Management Stockholder, as the case may be,
of his individual rights hereunder), unless otherwise agreed by the
Company and the Management Stockholders and/or the Additional
Management Stockholders, such action, vote or consent shall be taken
or in accordance with the affirmative vote of the holders of a
majority (by number of shares) of the Registrable Securities held by
Management Stockholders and Additional Management Stockholders; or
(ii) the Additional Stockholders (as a group as opposed to the
exercise by an Additional Stockholder of his individual rights
hereunder), unless otherwise agreed by the Company and the Additional
Stockholders, such action, vote or consent shall be taken by or in
accordance with the affirmative vote of the holders of a majority (by
number of shares) of the Registrable Securities held by the Additional
Stockholders.
(b) Except as otherwise provided herein, no modification, amendment
or waiver of any provision of this Agreement will be effective against the
Company or any holder of Registrable Securities, unless such modification,
amendment or waiver is approved in writing by the Company, the Required
Institutional Stockholders, the Required MascoTech Stockholders and, in the
event that the rights and obligations of the Management Stockholders and/or the
Additional Stockholders are adversely affected thereby, the approval of the
Management Stockholders and/or the Additional Stockholders, as the case may be.
The failure of any party to enforce any of the provisions of this Agreement will
in no way be construed as a waiver of such provisions and will not affect the
right of such party thereafter to enforce each and every provision of this
Agreement in accordance with its terms.
11.5 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Agreement by or on behalf of any
of the parties hereto will bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not; in
addition, whether or not any express assignment has been made, the provisions of
this Agreement which are for the benefit of purchasers or holders of Registrable
Securities are also for the benefit of, and enforceable by, any subsequent
holder of Registrable Securities, except to the extent reserved to or by the
transferor in connection with any such transfer; provided, that the benefits of
this Agreement shall inure to
-22-
26
Registration Rights Agreement
and be enforceable by any transferee of Registrable Securities so long as such
transferee shall have acquired such securities in accordance with the terms of
the Stockholders' Agreement and shall have executed a Registration Rights
Joinder Agreement.
11.6 NOTICES.
(a) All notices, requests and other communications hereunder must be
in writing and will be deemed to have been duly given only if delivered
personally against written receipt or by facsimile transmission or mailed (by
registered or certified mail, return receipt requested) or by reputable
overnight courier, fee prepaid to the parties at the following addresses or
facsimile numbers:
(i) If to any Institutional Stockholder, to:
Citicorp Venture Capital, Ltd.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(ii) If to any MascoTech Stockholder, to:
MascoTech, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attn: President
-23-
27
Registration Rights Agreement
with a copy to:
MascoTech, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attn: General Counsel
(iii) If to any Management Stockholder, Additional
Management Stockholder or Additional Stockholder, to
the address of such Person set forth in the stock
records of the Company.
(b) All such notices, requests and other communications will be
deemed delivered upon receipt. Any party from time to time may change its
address, facsimile number or other information for the purpose of notices to
that party by giving notice specifying such change to the other parties hereto.
11.7 HEADINGS.
The headings used in this Agreement have been inserted for convenience
of reference only and do not affect the provisions hereof.
11.8 GENDER.
Whenever the pronouns "he" or "his" are used herein they shall also be
deemed to mean "she" or "hers" or "it" or "its" whenever applicable. Words in
the singular shall be read and construed as though in the plural and words in
the plural shall be construed as though in the singular in all cases where they
would so apply.
11.9 INVALID PROVISIONS.
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under any present or future law, and if the rights or obligations
of any party hereto under this Agreement will not be materially and adversely
affected thereby, (i) such provision will be fully severable, (ii) this
Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, (iii) the remaining
provisions of this Agreement will remain in full force and effect and will not
be affected by the illegal, invalid or unenforceable provision or by its
severance herefrom and (iv) in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible.
-24-
28
Registration Rights Agreement
11.10 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE DOMESTIC LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE
OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF NEW YORK.
11.11 SERVICE OF PROCESS.
EACH OF THE PARTIES HERETO IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS IN ANY ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE PARTY AT THE ADDRESS
SPECIFIED IN THIS AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE FIFTEEN (15) DAYS
AFTER SUCH MAILING. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE
ABILITY OF ANY PARTY HERETO TO SERVE ANY SUCH LEGAL PROCESS, SUMMONS, NOTICES
AND DOCUMENTS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW OR TO OBTAIN
JURISDICTION OVER OR TO BRING ACTIONS, SUITS OR PROCEEDINGS AGAINST ANY OF THE
OTHER PARTIES HERETO IN SUCH OTHER JURISDICTIONS, AND IN SUCH MANNER, AS MAY BE
PERMITTED BY ANY APPLICABLE LAW.
11.12 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT. EACH OF THE PARTIES HERETO ALSO WAIVES ANY BOND OR SURETY OR SECURITY
UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF SUCH PARTY. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF THE PARTIES
HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS
LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT. IN THE EVENT OF LITIGATION,
-25-
29
Registration Rights Agreement
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
11.13 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-26-
30
Registration Rights Agreement
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
MSX INTERNATIONAL, INC.
By:
---------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
MASCOTECH, INC.
By:
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
CITICORP VENTURE CAPITAL, LTD.
By:
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
MANAGEMENT GROUP
---------------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
▇. ▇. ▇▇▇▇▇▇
[Signature Page to Registration Rights Agreement]
31
Registration Rights Agreement
Exhibit A
Form of Registration Rights Joinder Agreement
MSX INTERNATIONAL, INC.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
Ladies & Gentlemen:
In consideration of the [TRANSFER][ISSUANCE] to the undersigned of
[DESCRIBE SECURITY BEING TRANSFERRED/ISSUED] of MSX INTERNATIONAL, INC., a
Delaware corporation (the "Company"), the undersigned [REPRESENTS THAT IT IS A
PERMITTED TRANSFEREE OF [INSERT NAME OF TRANSFEROR] AND]* agrees that, as of the
date written below, [HE][SHE][IT] shall become a party to[, AND A PERMITTED
TRANSFEREE AS DEFINED IN,]* that certain Registration Rights Agreement dated as
of January __, 1997, as such agreement may have been amended from time to time
(the "Agreement"), among the Company and the persons named therein, and [AS A
PERMITTED TRANSFEREE SHALL BE FULLY BOUND BY, AND SUBJECT TO, ALL OF THE
COVENANTS, TERMS AND CONDITIONS OF THE AGREEMENT THAT WERE APPLICABLE TO THE
UNDERSIGNED'S TRANSFEROR,]* [SHALL BE FULLY BOUND BY, AND SUBJECT TO, THE
COVENANTS, TERMS AND CONDITIONS OF THE AGREEMENT AS PROVIDED UNDER SECTION 11.5
OF THE AGREEMENT]** [SHALL BE FULLY BOUND BY, AND SUBJECT TO, ALL OF THE
COVENANTS, TERMS AND CONDITIONS OF THE AGREEMENT,]*** as though an original
party thereto and shall be deemed a [MANAGEMENT STOCKHOLDER] [MASCOTECH
STOCKHOLDER] [ADDITIONAL STOCKHOLDER] [INSTITUTIONAL STOCKHOLDER]**** for [ALL]*
[SOLELY FOR]**[ALL]*** purposes thereof.
Executed as of the day of , .
SIGNATORY:
-----------------
Address:
-----------------
-----------------
ACKNOWLEDGED AND ACCEPTED:
MSX INTERNATIONAL, INC.
By:
------------------------------------------
Name:
Title:
32
Registration Rights Agreement
* Include if signatory is a Permitted Transferee
** Include if signatory is a Third Party
*** Include if signatory is an Additional Stockholder
**** Include if signatory is receiving securities from a Management
Stockholder, a MascoTech Stockholder, an Additional Stockholder or an
Institutional Stockholder; if signatory is an Additional Stockholder
receiving securities issued by the Company insert [Additional
Stockholder]