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EXHIBIT 10.4
(FORM OF)
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
________, 1999, between ▇▇▇▇▇▇ CORPORATION, a Delaware corporation ("▇▇▇▇▇▇"),
and ▇▇▇.▇▇▇ CORPORATION, a Nevada corporation (the "Company").
R E C I T A L S:
▇. ▇▇▇▇▇▇ is the owner of 10,000 shares of the Company's Series A
preferred stock and 36,038,000 shares of common stock, ("Common Stock"), of the
Company.
B. The Company has requested and ▇▇▇▇▇▇ has agreed to assist it in
conducting a Rights Offering to ▇▇▇▇▇▇'▇ stockholders.
C. In partial consideration for the consent of ▇▇▇▇▇▇ to the Rights
Offering by the Company, the Company has, among other things, agreed to grant to
▇▇▇▇▇▇ certain registration rights applicable to Registrable Securities (as
defined below) held by ▇▇▇▇▇▇.
D. The parties hereto desire to enter into this Agreement to set forth
the terms of such registration rights.
NOW, THEREFORE, upon the premises and based on the mutual promises
herein contained, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
initially capitalized terms shall have the following meanings:
(a) "Affiliate" means, with respect to any person, any other
person who, directly or indirectly, is in control of, is controlled by or is
under common control with the former person; and "control" (including the terms
"controlling," "controlled by," and "under common control with") means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a person, whether through the ownership of voting
securities, by contract or otherwise.
(b) "Company Securities" has the meaning set forth in Section
3 hereof.
(c) "Exchangeable Securities" has the meaning set forth in
Section 6 of this Agreement.
(d) "Fair Market Value" means, with respect to any security,
(i) if the security is listed on a national securities exchange or authorized
for quotation on a national market quotation system, the closing price, regular
way, of the security on such exchange or quotation system, as the case may be,
or if no such reported sale of the security shall have occurred on such date, on
the next preceding date on which there was such a reported sale, or (ii) if the
security is not listed for trading on a national securities exchange or
authorized for quotation on a national market quotation system, the average of
the closing bid and asked prices as reported by the National Association of
Securities Dealers Automated Quotation System or such other reputable entity or
system engaged in the regular reporting of securities prices and on which such
prices for such security are reported or, if no such prices shall have been
reported for such date, on the next preceding date for which such prices were so
reported, or (iii) if the security is not publicly traded, the fair market value
of such security as determined by a nationally recognized investment banking or
appraisal firm mutually acceptable to the Company and the Holders, the fair
market value of whose Registrable Securities is to be determined.
(e) "Holder" means ▇▇▇▇▇▇ or any Permitted Transferee.
(f) "Initiating Holders" has the meaning set forth in Section
3 of this Agreement.
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(g) "Other Holders" has the meaning set forth in Section 3
hereof.
(h) "Other Securities" has the meaning set forth in Section 3
hereof.
(i) "Other Voting Securities" means any options, rights,
warrants or other securities convertible into or exchangeable for Voting Stock
of the Company.
(j) "Permitted Transferee" has the meaning set forth in
Section 11 hereof.
(k) "Person" means any individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, or other entity of whatever nature.
(l) "Registrable After-Acquired Securities" means any
securities of the Company acquired by ▇▇▇▇▇▇ (or any Permitted Transferee).
(m) "Registrable Securities" means (i) all shares of Common
Stock (as presently constituted) owned on the date hereof by ▇▇▇▇▇▇, (ii) all
Registrable After-Acquired Securities, (iii) any stock or other securities into
which or for which such Common Stock or Registrable After-Acquired Securities
may hereafter be changed, converted or exchanged, and (iv) any other securities
issued to holders of such Common Stock or Registrable After-Acquired Securities
(or such stock or other securities into which or for which such Common Stock or
Registrable After-Acquired Securities are so changed, converted or exchanged)
upon any reclassification, share combination, share subdivision, share dividend,
merger, consolidation or similar transaction or event, provided that any such
securities shall cease to be Registrable Securities when such securities are
sold in any manner to a person who is not a Permitted Transferee.
(n) "Registration Expenses" means all out-of-pocket expenses
incurred in connection with any registration of Registrable Securities pursuant
to this Agreement including, without limitation, the following; (i) SEC filing
fees; (ii) the fees, disbursements and expenses of the Company's counsel(s) and
accountants in connection with the registration of the Registrable Securities to
be disposed of; (iii) all expenses in connection with the preparation, printing
and filing of the registration statement, any preliminary prospectus or final
prospectus and amendments and supplements thereto and the mailing and delivering
of copies thereof to any Holders, underwriters and dealers and all expenses
incidental to delivery of the Registrable Securities; (iv) the cost of printing
or producing any underwriting agreement, agreement among underwriters, agreement
between syndicates, selling agreement, blue sky or legal investment memorandum
or other document in connection with the offering, sale or delivery of the
Registrable Securities to be disposed of; (v) all expenses in connection with
the qualification of the Registrable Securities to be disposed of for offering
and sale under state securities laws, including the fees and disbursements of
counsel for the underwriters in connection with such qualification and the
preparation of any blue sky and legal investments surveys; (vi) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Registrable Securities
to be disposed of; (vii) transfer agents', depositaries' and registrars' fees
and the fees of any other agent appointed in connection with such offering;
(viii) all security engraving and security printing expenses, (ix) all fees and
expenses payable in connection with the listing of the Registrable Securities on
any securities exchange or inter-dealer quotation system; and (x) any one-time
payment for directors and officers insurance directly related to such offering,
provided the insurer provides a separate statement for such payment.
(o) "Rule 144" means Rule 144 promulgated under the Securities
Act, or any successor rule to similar effect.
(p) "SEC" means the United States Securities and Exchange
Commission.
(q) "Securities Act" means the Securities Act of 1933, as
amended, or any successor statute.
(r) "Selling Expenses" means all underwriting discounts and
commissions, selling concessions and stock transfer taxes applicable to the sale
by the Holders of Registrable Securities pursuant to this Agreement and all fees
and disbursements of any legal counsel, investment banker, accountant or other
professional advisor retained by a Holder.
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(s) "Selling Holder" has the meaning set forth in Section 5
hereof.
(t) "Transactional Deferral" has the meaning set forth in
Section 2 of this Agreement.
(u) "Voting Stock" means shares of the Company's capital stock
having the power under ordinary circumstances (and not merely upon the happening
of a contingency) to vote in the election of directors of the Company.
2. Demand Registration.
(a) At any time prior to such time as the rights under this
Section 2 terminate with respect to a Holder as provided in Section 2(e) hereof,
upon written notice from such Holder in the manner set forth herein requesting
that the Company effect the registration under the Securities Act of any or all
of the Registrable Securities held by such Holder, which notice shall specify
the intended method or methods of disposition of such Registrable Securities,
the Company shall use its best efforts to effect, in the manner set forth in
Section 5, the registration under the Securities Act of such Registrable
Securities for disposition in accordance with the intended method or methods of
disposition stated in such request (including in an offering on a delayed or
continuous basis under Rule 415 (or any successor rule to similar effect)
promulgated under the Securities Act, if (x) the Company is then eligible to
register such Registrable Securities on Form S-3 (or a successor form) for such
offering and (y) the Company consents to such an offering (except that no
consent of the Company will be required if the contemplated offering on a
delayed or continuous basis under Rule 415 is the offering of Registrable
Securities upon the exercise, exchange or conversion of Exchangeable Securities
as contemplated by Section 6 hereof)), provided that:
(i) if, within 5 business days of receipt of a
registration request pursuant to this Section 2(a), the Holder
or Holders making such request are advised in writing that the
Company has in good faith commenced the preparation of a
registration statement for an underwritten public offering
prior to receipt of the notice requesting registration
pursuant to this Section 2(a) and the managing underwriter of
the proposed offering has determined that in such firm's good
faith opinion, a registration at the time and on the terms
requested would materially and adversely affect the offering
that is contemplated by the Company, the Company shall not be
required to effect a registration pursuant to this Section
2(a) (a "Transactional Deferral") until the earliest of (A)
the abandonment of such offering by the Company, (B) 60 days
after receipt by the Holder or Holders requesting registration
of the managing underwriter's written opinion referred to
above in this clause (i), unless the registration statement
for such offering has become effective and such offering has
commenced on or prior to such 60th day, and (C) if the
registration statement for such offering has become effective
and such offering has commenced on or prior to such 60th day,
the day on which the restrictions on the Holders contained in
Section 10 hereof lapse, provided, however, that the Company
shall not be permitted to delay a requested registration in
reliance on this clause (i) more than once in any 12-month
period;
(ii) if, while a registration request is pending
pursuant to this Section 2(a), the Company determines,
following consultation with and receiving advice from its
legal counsel, that the filing of a registration statement
would require the disclosure of material information that the
Company has a bona fide business purpose for preserving as
confidential and the disclosure of which the Company
determines reasonably and in good faith would have a material
adverse effect on the Company, the Company shall not be
required to effect a registration pursuant to this Section
2(a) until the earlier of (A) the date upon which such
material information is otherwise disclosed to the public or
ceases to be material and (B) 90 days after the Company makes
such determination;
(iii) the Company shall not be obligated to file a
registration statement relating to a registration request
pursuant to this Section 2: (A) prior to the first anniversary
of the closing of the Public Offering, (B) within a period of
365 calendar days after the effective date of any other
registration statement of the Company demanded pursuant to
this Section 2(a), or (C) if such registration request is for
a number of Registrable Securities having a Fair Market Value
on the
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business day immediately preceding the date of such
registration request of less than $50,000,000.00; and
(iv) the Company shall not be obligated to file a
registration statement relating to a registration request
pursuant to this Section 2: (A) in the case of a registration
request by ▇▇▇▇▇▇ or any Permitted Transferee that has
acquired, in the transaction in which it became a Permitted
Transferee, at least a majority of the then issued and
outstanding Voting Stock, on more than three occasions after
such time as ▇▇▇▇▇▇ or such Permitted Transferee, as the case
may be, owns less than a majority of the voting power of the
outstanding capital stock of the Company (it being
acknowledged that so long as ▇▇▇▇▇▇ or such Permitted
Transferee owns a majority of the voting power of the
outstanding capital stock of the Company, there shall be no
limit to the number of occasions on which ▇▇▇▇▇▇ or such
Permitted Transferee may exercise such rights other than as
expressly set forth herein), or (B) in the case of a Holder
other than ▇▇▇▇▇▇ or a Permitted Transferee described in
clause (A) above, on more than the number of occasions
permitted such Holder in accordance with Section 11 hereof.
(b) Notwithstanding any other provision of this Agreement to
the contrary:
(i) a registration requested by a Holder pursuant to
this Section 2 shall not be deemed to have been effected (and,
therefore, not requested for purposes of Section 2(a)), (A)
unless the registration statement filed in connection
therewith has become effective, (B) if after such registration
statement has become effective, it becomes subject to any stop
order, or there is issued an injunction or other order or
decree of the SEC or other governmental agency or court for
any reason other than a misrepresentation or an omission by
such Holder, which injunction, order or decree prohibits or
otherwise materially and adversely affects the offer and sale
of the Registrable Securities so registered prior to the
completion of the distribution thereof in accordance with the
plan of distribution set forth in the registration statement
or (C) 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 some
act, misrepresentation or omission by the Company and are not
waived by the purchasers or underwriters; and
(ii) nothing herein shall modify a Holder's
obligation to pay Registration Expenses, in accordance with
Section 4 hereof, that are incurred in connection with any
withdrawn registration requested by such Holder.
(c) In the event that any registration pursuant to this
Section 2 shall involve, in whole or in part, an underwritten offering, Holders
owning at least 50.1% of the Fair Market Value of the Registrable Securities to
be registered in connection with such offering shall have the right to designate
an underwriter reasonably satisfactory to the Company as the lead managing
underwriter of such underwritten offering, and the Company shall have the right
to designate one underwriter reasonably satisfactory to such Holders as a
co-manager of such underwritten offering.
(d) The Company shall have the right to cause the registration
of additional securities for sale for the account of any person (including the
Company) in any registration of Registrable Securities requested by any Holder
pursuant to Section 2(a) only to the extent the managing underwriter or other
independent marketing agent for such offering (if any) determines that, in its
opinion, the additional securities proposed to be sold will not materially and
adversely affect the offering and sale of the Registrable Securities to be
registered in accordance with the intended method or methods of disposition then
contemplated by such Holder. The rights of a Holder to cause the registration of
additional Registrable Securities held by such Holder in any registration of
Registrable Securities requested by another Holder pursuant to Section 2(a)
shall be governed by the agreement of the Holders with respect thereto as
provided in Section 11(a).
(e) The Company shall not be obligated to file a registration
statement relating to a registration request by a Holder pursuant to this
Section 2 from and after such time as such Holder first owns Registrable
Securities representing (assuming for this purpose the conversion, exchange or
exercise of all Registrable Securities then owned by
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such Holder that are convertible into or exercisable or exchangeable for Voting
Stock of the Company) less than 10% of the then issued and outstanding Voting
Stock of the Company.
3. Piggyback Registration. If the Company at any time proposes to
register any of its Common Stock or any other of its securities (collectively,
"Other Securities") under the Securities Act, whether or not for sale for its
own account, in a manner which would permit registration of Registrable
Securities for sale for cash to the public under the Securities Act, it will at
such time give prompt written notice to each Holder of its intention to do so at
least 10 business days prior to the anticipated filing date of the registration
statement relating to such registration. Such notice shall offer each such
Holder the opportunity to include in such registration statement such number of
Registrable Securities as each such Holder may request. Upon the written request
of any such Holder made within 5 business days after the receipt of the
Company's notice (which request shall specify the number of Registrable
Securities intended to be disposed of and the intended method of disposition
thereof), the Company shall effect, in the manner set forth in Section 5, in
connection with the registration of the Other Securities, the registration under
the Securities Act of all Registrable Securities which the Company has been so
requested to register, to the extent required to permit the disposition (in
accordance with such intended methods thereof) of the Registrable Securities so
requested to be registered, provided that:
(a) if at any time after giving written notice of its
intention to register any securities and prior to the effective date of such
registration, the Company shall determine for any reason not to register or to
delay registration of such securities, the Company may, at its election, give
written notice of such determination to the Holders and, thereupon, (A) in the
case of a determination not to register, the Company shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration and (B) in the case of a determination to delay such registration,
the Company shall be permitted to delay registration of any Registrable
Securities requested to be included in such registration for the same period as
the delay in registering such other securities, but, in either such case,
without prejudice to the rights of the Holders under Section 2;
(b) (i) if the registration referred to in the first sentence
of this Section 3 is to be a registration in connection with an underwritten
offering on behalf of either the Company or holders of securities (other than
Registrable Securities) of the Company ("Other Holders"), and the managing
underwriter for such offering advises the Company in writing that, in such
firm's opinion, such offering would be materially and adversely affected by the
inclusion therein of Registrable Securities requested to be included therein
because such Registrable Securities are not of the same type, class or series as
the securities to be offered and sold in such offering on behalf of the Company
and/or the Other Holders, the Company may exclude all such Registrable
Securities from such offering provided that the Holder is permitted to
substitute for the Registrable Securities so excluded an equal number of
Registrable Securities of the same type, class or series as those being
registered by the Company or the Other Holders, if and to the extent such Holder
owns Registrable Securities of such type, class or series or can acquire
Registrable Securities of such type, class or series upon exercise or conversion
of other Registrable Securities; and
(ii) if the registration referred to in the first sentence of this
Section 3 is to be a registration in connection with an underwritten primary
offering on behalf of the Company, and the managing underwriter for such
offering advises the Company in writing that, in such firm's opinion, such
offering would be materially and adversely affected by the inclusion therein of
the Registrable Securities requested to be included therein because the number
or principal amount of such Registrable Securities, considered together with the
number or principal amount of securities proposed to be offered by the Company,
exceeds the aggregate number or principal amount of securities which, in such
firm's opinion, can be sold in such offering without materially and adversely
affecting the offering, the Company shall include in such registration: (1)
first, all securities the Company proposes to sell for its own account ("Company
Securities") and (2) second, the number or principal amount of Registrable
Securities and securities, if any, requested to be included therein by Other
Holders in excess of the number or principal amount of Company Securities which,
in the opinion of such underwriter, can be so sold without materially and
adversely affecting such offering (allocated pro rata among the Holders and the
Other Holders on the basis of the number of securities (including Registrable
Securities) requested to be included therein by each Holder and each such Other
Holder); and
(iii) if the registration referred to in the first sentence of this
Section 3 is to be a registration in connection with an underwritten secondary
offering on behalf of Other Holders made pursuant to demand registration rights
granted by the Company to such Other Holders (the "Initiating Holders"), and the
managing underwriter for such offering advises the Company in writing that, in
such firm's opinion, such offering would be materially and adversely affected by
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the inclusion therein of the Registrable Securities requested to be included
therein because the number or principal amount of such Registrable Securities,
considered together with the number or principal amount of securities proposed
to be offered by the Initiating Holders, exceeds the aggregate number or
principal amount of securities which, in such firm's opinion, can be sold in
such offering without materially and adversely affecting the offering, the
Company shall include in such registration; (1) first, to the extent the
registration rights granted to an Initiating Holder permit it to exclude other
securities from its registration on substantially the same basis as that set
forth in the first sentence of Section 2(d) hereof, all securities any such
Initiating Holder proposes to sell for its own account, and (2) second, the
number or principal amount of additional securities (including Registrable
Securities) that such managing underwriter advises can be sold without
materially and adversely affecting such offering, allocated pro rata among any
Other Holders to which clause (1) does not apply and the Holders on the basis of
the number of securities (including Registrable Securities) requested to be
included therein by each Holder and each such Other Holder,
(c) the Company shall not be required to effect any
registration of Registrable Securities under this Section 3 incidental to the
registration of any of its securities in connection with stock option or other
executive or employee benefit or compensation plans of the Company;
(d) no registration of Registrable Securities effected under
this Section 3 shall relieve the Company of its obligation to effect any
registration of Registrable Securities required of the Company pursuant to
Section 2 hereof, except as expressly provided in Section 2; and
(e) the Company shall not be required to effect any
registration of Registrable Securities under this Section for any Holder from
and after such time as such Holder is able to dispose of all of its Registrable
Securities within a three-month period pursuant to Rule 144.
4. Expenses. The Holders, on the one hand, by accepting Registrable
Securities, and the Company, on the other hand, each agree to pay one-half of
all Registration Expenses with respect to a registration pursuant to Section 2
hereof, provided that to the extent a registration pursuant to Section 2
includes the registration of shares for the Company or another person in
connection therewith, the Company or such other person shall pay all incremental
expenses of including such additional shares in the registration. The Holders'
portion of any Registration Expenses shall be allocated among them pro rata
based on each Holder's number or principal amount of Registrable Securities
included in such offering. The Company agrees to pay all Registration Expenses
with respect to a registration pursuant to Section 3 hereof. All Registration
Expenses to be paid by the Holder shall be paid within 3010 days of the delivery
of a statement from the Company, such statements to be delivered not more
frequently than once every 6030 days. All internal expenses of the Company or a
Holder in connection with any offering pursuant to this Agreement, including,
without limitation, the salaries and expenses of officers and employees,
including in-house attorneys, shall be borne by the party incurring them. All
Selling Expenses of the Holders participating in any registration pursuant to
this Agreement shall be borne by such Holders pro rata based on each Holder's
number of Registrable Securities included in such registration.
5. Registration and Qualification. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Section 2 or 3 hereof, the
Company, subject to Section 4 hereof, shall:
(a) prepare and file a registration statement under the
Securities Act relating to the Registrable Securities to be offered as soon as
practicable, but in no event later than 45 days (60 days if the applicable
registration form is other than Form S-3) after the date notice is given, and
use its best efforts to cause the same to become effective within 90 days after
the date notice is given (120 days if the applicable registration form is other
than Form S-3);
(b) prepare and file with the SEC 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 with
respect to the disposition of all Registrable Securities until the earlier of
(i) such time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition set forth in such
registration statement and (ii) the expiration of nine months after such
registration statement becomes effective; provided, that such nine-month period
shall be extended for such number of days that equals the number of days
elapsing from (A) the date the written notice contemplated by paragraph (f)
below is given by the Company to (B) the date on which the Company delivers to
the Holders of Registrable Securities the supplement or amendment contemplated
by
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paragraph (f) below; and provided further, that in the case of a registration
to permit the exercise or exchange of Exchangeable Securities for, or the
conversion of Exchangeable Securities into, Registrable Securities, the time
limitation contained in clause (ii) above shall be disregarded to the extent
that, in the written opinion of ▇▇▇▇▇▇'▇ counsel delivered to the Company, such
Registrable Securities are required to be covered by an effective registration
statement under the Securities Act at the time such Registrable Securities are
issued upon exercise, exchange or conversion of Registrable Securities in order
for such Registrable Securities to be freely tradeable by any person who is not
an Affiliate of the Company or ▇▇▇▇▇▇;
(c) furnish to the Holders and to any underwriter of such
Registrable Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included in
such registration statement (including each preliminary prospectus and any
summary prospectus), in conformity with the requirements of the Securities Act,
and such other documents, as the Holders or such underwriter may reasonably
request in order to facilitate the public sale of the Registrable Securities,
and a copy of any and all transmittal letters or other correspondence to, or
received from, the SEC or any other governmental agency or self-regulatory body
or other body having jurisdiction (including any domestic or foreign securities
exchange) relating to such offering;
(d) use its best efforts to register or qualify all
Registrable Securities covered by such registration statement under the
securities or blue sky laws of such jurisdictions (domestic or foreign) as the
Holders or any underwriter of such Registrable Securities shall request, and use
its best efforts to obtain all appropriate registrations, permits and consents
required in connection therewith, and do any and all other acts and things which
may be necessary or advisable to enable the Holders or any such underwriter to
consummate the disposition in such jurisdictions of its Registrable Securities
covered by such registration statement; provided that the Company shall not for
any such purpose be required to register or qualify generally to do business as
a foreign corporation in any jurisdiction wherein it is not so qualified, or to
subject itself to taxation in any such jurisdiction, or to consent to general
service of process in any such jurisdiction;
(e) (i) use its best efforts to furnish an opinion of counsel
for the Company addressed to the underwriters and dated the date of the closing
under the underwriting agreement (if any) (or if such offering is not
underwritten, dated the effective date of the registration statement), and (ii)
use its best efforts to furnish a "cold comfort" letter addressed to the
underwriters, if permissible under applicable accounting practices, and signed
by the independent public accountants who have audited the Company's financial
statements included in such registration statement, in each such case covering
substantially the same matters with respect to such registration statement (and
the prospectus included therein) as are customarily covered in opinions of
issuer's counsel and in accountants' letters delivered to underwriters in
underwritten public offerings of securities and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements;
(f) immediately notify each Holder of Registrable Securities
included in such registration (each a "Selling Holder") in writing (i) at any
time when a prospectus relating to a registration pursuant to Section 2 or 3
hereof is required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and (ii) if any request by the SEC or any other regulatory
body or other body having jurisdiction for any amendment of or supplement to any
registration statement or other document relating to such offering, and in
either such case (i) or (ii) at the request of the Selling Holders, subject to
Section 4 hereof, prepare and furnish to the Selling Holders 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, in light of the circumstances under which they
are made, not misleading;
(g) use its best efforts to list all such Registrable
Securities covered by such registration on each securities exchange and
inter-dealer quotation system on which the Common Stock is then listed, with
expenses in connection therewith (not including any future periodic assessments
or fees for such additional listing, which shall be paid by the Company) to be
paid in accordance with Section 4 hereof;
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(h) use its best efforts to list all Registrable Securities
covered by such registration statement on any securities exchange or
inter-dealer quotation system (in each case, domestic or foreign) not described
in paragraph (g) above as the Selling Holders or any underwriter of such
Registrable Securities shall request, and use its best efforts to obtain all
appropriate registrations, permits and consents required in connection
therewith, and to do any and all other acts and things which may be necessary or
advisable to effect such listing; provided, however, that, (i) notwithstanding
Section 4, the Holders of the Registrable Securities to be so listed shall pay
all costs and expenses incurred by the Company in connection with such listing
and (ii) the Company shall have no obligation to use its best efforts to so list
Registrable Securities if in the good faith opinion of counsel for the Company
such listing shall impose on the Company an ongoing material compliance
obligation;
(i) to the extent reasonably requested by the lead or managing
underwriters in connection with any underwritten offering, send appropriate
officers of the Company to attend any "road shows" scheduled in connection with
any such registration; and
(j) furnish for delivery in connection with the closing of any
offering of Registrable Securities unlegended certificates representing
ownership of the Registrable Securities being sold in such denominations as
shall be requested by the Selling Holders or the underwriters.
6. Exchangeable Securities. ▇▇▇▇▇▇ shall be entitled, if it intends to
offer any options, rights, warrants or other securities issued or to be issued
by it or any other person that are exercisable or exchangeable for or
convertible into any Registrable Securities ("Exchangeable Securities"), to
register the Registrable Securities underlying such options, rights, warrants or
other securities pursuant to (and subject to the limitations contained in)
Section 2 of this Agreement.
7. Underwriting; Due Diligence.
(a) If requested by the underwriters for any underwritten
offering of Registrable Securities pursuant to a registration requested under
this Agreement, the Company shall enter into an underwriting agreement, with
such underwriters for such offering, such agreement to contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, indemnities and
contribution substantially to the effect and to the extent provided in Section 8
hereof and the provision of opinions of counsel and accountants' letters to the
effect and to the extent provided in Section 5(e) hereof. The Selling Holders on
whose behalf the Registrable Securities are to be distributed by such
underwriters shall be parties to any such underwriting agreement. Such
underwriting agreement shall also contain such representations and warranties by
the Selling Holders on whose behalf the Registrable Securities are to be
distributed as are customarily contained in underwriting agreements with respect
to secondary distributions. The Selling Holders may require that any additional
securities included in an offering proposed by a Holder be included on the same
terms and conditions as the Registrable Securities that are included therein.
(b) In the event that any registration pursuant to Section 3
shall involve, in whole or in part, an underwritten offering, the Company may
require the Registrable Securities requested to be registered pursuant to
Section 3 to be included in such underwritten offering on the same terms and
conditions as shall be applicable to the other securities being sold through
underwriters under such registration. If requested by the underwriters for such
underwritten offering, the Selling Holders on whose behalf the Registrable
Securities are to be distributed shall enter into an underwriting agreement with
such underwriters, such agreement to contain such representations and warranties
by the Selling Holders and such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary distributions,
including, without limitation, indemnities and contribution substantially to the
effect and to the extent provided in Section 8 hereof. Such underwriting
agreement shall also contain such representations and warranties by the Company
and such other person or entity for whose account securities are being sold in
such offering as are customarily contained in underwriting agreements with
respect to secondary distributions.
(c) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the Securities
Act, the Company shall give the Holders of such Registrable Securities and the
Underwriters, if any, and their respective counsel and accountants, such
reasonable and customary access to its banks and records and such opportunities
to discuss the business of the Company with its officers and the independent
public
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accountants who have certified the Company's financial statements as shall be
necessary, in the opinion of such Holders and such underwriters or their
respective counsel, to conduct a reasonable investigation within the meaning of
the Securities Act.
8. Indemnification and Contribution.
(a) In the case of each offering of Registrable Securities
made pursuant to this Agreement, the Company agrees to indemnify and hold
harmless each Holder, its officers and directors, each underwriter of
Registrable Securities so offered and each person, if any, who controls any of
the foregoing persons within the meaning of the Securities Act, from and against
any and all claims, liabilities, losses, damages, expenses and judgments, joint
or several, to which they or any of them may become subject, under the
Securities Act or otherwise, including any amount paid in settlement of any
litigation commenced or threatened which is approved by the indemnifying party
as provided below, and shall promptly reimburse them, as and when incurred, for
any reasonable legal or other expenses incurred by them in connection with
investigating any claims and defending any actions, insofar as such losses,
claims, damages, liabilities or actions shall arise out of, or shall be based
upon, any untrue statement or alleged untrue statement of a material fact
contained in the registration statement (or in any preliminary or final
prospectus included therein) or any amendment thereof or supplement thereto, or
in any document incorporated by reference therein, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
the Company shall not be liable to a particular Holder in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement, or any
omission, if such statement or omission shall have been made in reliance upon
and in conformity with information relating to such Holder furnished to the
Company in writing by or on behalf of such Holder specifically for use in the
preparation of the registration statement (or in any preliminary or final
prospectus included therein) or any amendment thereof or supplement thereto.
Such indemnity shall remain in full force and affect regardless of any
investigation made by or on behalf of a Holder and shall survive the transfer of
such securities. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to each Holder, any of such
Holder's directors or officers, underwriters of the Registrable Securities or
any controlling person of the foregoing; provided, further, that this indemnity
does not apply in favor of any underwriter or person controlling an underwriter
(or if a Selling Holder offers Registrable Securities directly without an
underwriter, the Selling Holder) with respect to any loss, liability, claim,
damage or expense arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission in any preliminary prospectus
if a copy of a final prospectus was not sent or given by or on behalf of an
underwriter (or the Selling Holder, if the Selling Holder offered the
Registrable Securities directly without an underwriter) to the person asserting
such loss, claim, damage, liability or action at or prior to the written
confirmation of the sale of the Registrable Securities as required by the
Securities Act and such untrue statement or omission had been corrected in such
final prospectus.
(b) In the case of each offering made pursuant to this
Agreement, each Holder of Registrable Securities included in such offering, by
exercising its registration rights hereunder, agrees to indemnify and hold
harmless the Company, its officers and directors and each person, if any, who
controls any of the foregoing within the meaning of the Securities Act (and if
requested by the underwriters, each underwriter who participates in the offering
and each person, if any, who controls any such underwriter within the meaning of
the Securities Act), from and against any and all claims, liabilities, losses,
damages, expenses and judgments, joint or several, to which they or any of them
may become subject, under the Securities Act or otherwise, including any amount
paid in settlement of any litigation commenced or threatened which is approved
by the indemnifying party as provided below, and shall promptly reimburse them,
as and when incurred, for any legal or other expenses incurred by them in
connection with investigating any claim and defending any actions, insofar as
any such losses, claims, damages, liabilities or actions shall arise out of, or
shall be based upon, any untrue statement or alleged untrue statement of a
material fact contained in the registration statement (or in any preliminary or
final prospectus included therein) or any amendment thereof or supplement
thereto, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that such untrue statement of a
material fact is contained in, or such material fact is omitted from,
information relating to such Holder furnished in writing to the Company by or on
behalf of such Holder specifically for use in the preparation of such
registration statement (or in any preliminary or final prospectus included
therein). The foregoing indemnity is in addition to any liability which such
Holder may otherwise have to the Company, any of its directors or officers,
underwriters of the Registrable Securities or any controlling person of the
foregoing; provided, however, that this indemnity does not apply in favor of any
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underwriter or person controlling an underwriter (or if the Company offers
Registrable Securities directly without an underwriter, the Company) with
respect to any loss, liability, claim, damage or expense arising out of or based
upon any untrue statement or alleged untrue statement or omission or alleged
omission in any preliminary prospectus if a copy of a final prospectus was not
sent or given by or on behalf of an underwriter (or the Company, if the Company
offered the Registrable Securities directly without an underwriter) to the
person asserting such loss, claim, damage, liability or action at or prior to
the written confirmation of the sale of the Registrable Securities as required
by the Securities Act and such untrue statement or omission had been corrected
in such final prospectus.
(c) Each party indemnified under Paragraph (a) or (b) of this
Section 8 shall, promptly after receipt of notice of any claim or the
commencement of any action against such indemnified party in respect of which
indemnity may be sought, notify the indemnifying party in writing of the claim
or the commencement thereof; provided that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party on account of the indemnity agreement contained in
paragraph (a) or (b) of this Section 8, except to the extent the indemnifying
party was prejudiced by such failure, and in no event shall relieve the
indemnifying party from any other liability which it may have to such
indemnified party. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein, and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof; provided that each
indemnified party, its officers and directors, if any, and each person, if any,
who controls such indemnified party within the meaning of the Securities Act,
shall have the right to employ separate counsel reasonably approved by the
indemnifying party to represent them if the named parties to any action
(including any impleaded parties) include both such indemnified party and an
indemnifying party or an Affiliate of an indemnifying party, and such
indemnified party shall have been advised by counsel either (i) that there may
be one or more legal defenses available to such indemnifying party that are
different from or additional to those available to such indemnified party or
such Affiliate or (ii) a conflict may exist between such indemnified party and
such indemnifying party or such Affiliate, and in that event the fees and
expenses of one such separate counsel for all such indemnified parties shall be
paid by the indemnifying party. An indemnified party will not settle any claim
or action for which he or it is being indemnified hereunder unless it is first
approved in writing by the indemnifying party, such approval not to be
unreasonably withheld. The indemnifying party may not agree to any settlement of
any such claim or action which provides for any remedy or relief other than
monetary damages for which the indemnifying party shall be responsible
hereunder, without the prior written consent of the indemnified party, which
consent shall not be unreasonably withheld. In any action hereunder as to which
the indemnifying party has assumed the defense thereof with counsel reasonably
satisfactory to the indemnified party, the indemnified party shall continue to
be entitled to participate in the defense thereof, with counsel of its own
choice, but, except as set forth above, the indemnifying party shall not be
obligated hereunder to reimburse the indemnified party for the costs thereof. In
all instances, the indemnified party shall cooperate fully with the indemnifying
party or its counsel in the defense of such claim or action.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to herein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, in such proportion as shall
be appropriate to reflect the relative fault of the indemnifying party on the
one hand and the indemnified party on the other with respect to the statements
or omissions which resulted in such loss, claim, damage or liability, or action
in respect thereof, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party on the
one hand or the indemnified party on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission, but not by reference to any indemnified
party's stock ownership in the Company. In no event, however, shall a Holder be
required to contribute in excess of the amount of the net proceeds received by
such Holder in connection with the sale of Registrable Securities in the
offering which is the subject of such loss, claim, damage or liability. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
paragraph shall be deemed to
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include, for purposes of this paragraph, any legal or other expenses reasonably
incurred by such indemnifying party in connection with investigating or
defending any such action or claim. 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.
9. Rule 144. The Company shall take such measures and file such
information, documents and reports as shall be required by the SEC as a
condition to the availability of Rule 144 (or any successor provision). The
Company shall use its best efforts to cause all conditions to the availability
of Form S-3 (or any successor form thereto) under the Securities Act for the
filing of registration statements under this Agreement to be met as soon as
possible after the completion of the Public Offering.
10. Holdback.
(a) Each Holder agrees by the acquisition of Registrable
Securities, if so required by the managing underwriter of any offering of equity
securities by the Company, not to sell, make any short sale of, loan, grant any
option for the purchase of, effect any public sale or distribution of or
otherwise dispose of any Registrable Securities owned by such Holder, during the
30 days prior to and the 90 days after the registration statement relating to
such offering has become effective (or such shorter period as may be required by
the underwriter), except as part of such underwritten offering. Notwithstanding
the foregoing sentence, each Holder subject to the foregoing sentence shall be
entitled to sell during the foregoing period any securities of the Company owned
by it in a private sale. The Company may legend and may impose stop transfer
instructions on any certificate evidencing Registrable Securities relating to
the restrictions provided for in this Section 10.
(b) The Company agrees, if so required by the managing
underwriter of any offering of Registrable Securities, not to sell, make any
short sale of, loan, grant any option for the purchase of (other than pursuant
to employee benefit plans), effect any public sale or distribution of or
otherwise dispose of any of its equity securities during the 30 days prior to
and the 90 days after any underwritten registration pursuant to Section 2 or 3
hereof has become effective, except as part of such underwritten registration
and except pursuant to registrations on Form ▇-▇, ▇-▇ or any successor or
similar forms thereto.
11. Transfer of Registration Rights.
(a) A Holder may transfer all or any portion of its rights
under this Agreement to any transferee of Registrable Securities that represent
(assuming the conversion, exchange or exercise of all Registrable Securities so
transferred that are convertible into or exercisable or exchangeable for the
Company's Voting Stock) at least 20% of the then issued and outstanding Voting
Stock of the Company (each, a "Permitted Transferee"); provided, however, that
(i) with respect to any transferee of less than a majority but more than 30% of
the then issued and outstanding Voting Stock, the Company shall not be obligated
to file a registration statement pursuant to a registration request made by such
transferee pursuant to Section 2 hereof on more than two occasions, and (ii)
with respect to any transferee of 30% or less of the then issued and outstanding
Voting Stock, the Company shall not be obligated to file a registration
statement pursuant to a registration request made by such transferee pursuant to
Section 2 hereof on more than one occasion. No transfer of registration rights
pursuant to this Section shall be effective unless the Company has received
written notice from the Holder of an intention to transfer at least 20 days
prior to the Holder's entering into a binding agreement to transfer Registrable
Securities (10 days in the event of an unsolicited offer). Such notice need not
contain proposed terms or name a proposed Permitted Transferee. On or before the
time of the transfer, the Company shall receive a written notice stating the
name and address of any Permitted Transferee and identifying the number and/or
aggregate principal amount of Registrable Securities with respect to which the
rights under this Agreement are being transferred and the scope of the rights so
transferred. In connection with any such transfer, the term ▇▇▇▇▇▇ as used in
this Agreement (other than in Section 2(a)(iv)) shall, where appropriate to
assign the rights and obligations hereunder to such Permitted Transferee, be
deemed to refer to the Permitted Transferee of such Registrable Securities.
▇▇▇▇▇▇ and any Permitted Transferees may exercise the registration rights
hereunder in such priority, as among themselves, as they shall agree among
themselves, and the Company shall observe any such agreements of which it shall
have notice as provided above.
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(b) After any such transfer, the transferring Holder shall
retain its rights under this Agreement with respect to all other Registrable
Securities owned by such transferring Holder.
(c) Upon the request of the transferring Holder, the Company
shall execute an agreement with a Permitted Transferee substantially similar to
this Agreement.
12. Miscellaneous.
(a) Injunctions. Each party acknowledges and agrees that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. Therefore, each party shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof in any court having
jurisdiction, such remedy being in addition to any other remedy to which such
party may be entitled at law or in equity.
(b) Severability. If any term or provision of this Agreement
is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms and provisions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated, and each of the parties shall use its best efforts to find and
employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term or provision.
(c) Further Assurances. Subject to the specific terms of this
Agreement, each of the parties hereto shall make, execute, acknowledge and
deliver such other instruments and documents, and take all such other actions,
as may be reasonably required in order to effectuate the purposes of this
Agreement and to consummate the transactions contemplated hereby.
(d) Waivers, etc. Except as otherwise expressly set forth in
this Agreement, no failure or delay on the part of either party in exercising
any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. Except as
otherwise expressly set forth in this Agreement, no modification or waiver of
any provision of this Agreement nor consent to any departure therefrom shall in
any event be effective unless the same shall be in writing and signed by an
authorized officer of each of the parties, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which given.
(e) Entire Agreement. This Agreement contains the final and
complete understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the
parties, whether written or oral, with respect to the subject matter hereof. The
paragraph headings contained in this Agreement are for reference purposes only,
and shall not affect in any manner the meaning or interpretation of this
Agreement
(f) Counterparts. For the convenience of the parties, this
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original but all of which together shall be one and the same
instrument.
(g) Amendment. This Agreement may be amended only by a written
instrument duly executed by an authorized officer of each of the parties.
(h) Notices. Unless expressly provided herein, all notices,
claims, certificates, requests, demands and other communications hereunder shall
be in writing and shall be deemed to be duly given (i) when personally delivered
or (ii) if mailed registered or certified mail, postage prepaid, return receipt
requested, on the date the return receipt is executed or the letter refused by
the addressee or its agent or (iii) if sent by overnight courier which delivers
only upon the signed receipt of the addressee, on the date the receipt
acknowledgment is executed or refused by the addressee or its agent or (iv)
if sent by facsimile or other generally accepted means of electronic
transmission, on the date confirmation of transmission is received (provided
that a copy of any notice delivered pursuant to this clause (iv)
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shall also be sent pursuant to clause (ii) or (iii)), addressed as follows or
sent by facsimile to the following number (or to such other address or facsimile
number for a party as it shall have specified by like notice):
(i) if to ▇▇▇▇▇▇, to:
▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer
(ii) if to the Company, to:
▇▇▇.▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President--Finance,
Chief Financial Officer
(iii) if to a Holder of Registrable Securities, to the name and
address as the same appear in the security transfer books of
the Company,
or to such other address as either party (or other Holders of Registrable
Securities) may, from time to time, designate in a written notice in a like
manner.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
(j) Assignment. Except as specifically provided herein, the
parties may not assign their rights under this Agreement. The Company may not
delegate its obligations under this Agreement.
(k) Conflicting Agreements. The Company shall not hereafter
grant any rights to any person to register securities of the Company, the
exercise of which would conflict with the rights granted to the Holders of the
Registrable Securities under this Agreement. The Company shall not hereafter
grant to any person demand registration rights permitting it to exclude the
Holders from including Registrable Securities in a registration on behalf of
such person on a basis more favorable than that set forth in Section 2(d) hereof
with respect to the Holders.
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IN WITNESS WHEREOF, ▇▇▇▇▇▇ and the Company have caused this
Agreement to be duly executed by their authorized representative as of the date
first above written.
▇▇▇▇▇▇ CORPORATION
By: _______________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President and Chief Executive Officer
▇▇▇.▇▇▇ CORPORATION
By: _______________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President - Finance and Chief
Financial Officer
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