EXHIBIT 10.9
▇▇▇▇▇▇▇ HOLDINGS CORPORATION
REGISTRATION AGREEMENT
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THIS REGISTRATION AGREEMENT is made as of June 14, 1996, by and among
▇▇▇▇▇▇▇ Holdings Corporation, a Delaware corporation (the "Company"), Liberty
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Partners Holdings 11, L.L.C. ("LPH"), Riverside ▇▇▇▇▇▇▇, L.L.C. ("Riverside"),
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▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇▇"), and ▇▇▇▇
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▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"). LPH, Riverside, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ are
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collectively referred to herein as the "Investors" and individually as an
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"Investor." Unless otherwise provided in this Agreement, capitalized terms used
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herein are defined in Section 8.
The Company and LPH and Riverside are parties to a Stock and Warrant
Purchase Agreement of even date herewith (the "Purchase Agreement"), the Company
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and ▇▇▇▇▇▇▇▇▇▇ are parties to a Management Agreement of even date herewith (the
"Management Agreement"), and the Company and each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ are
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parties to an Investor Purchase Agreement of even date herewith (an "Investor
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Purchase Agreement"). In consideration of the purchase and sale of securities
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of the Company as provided in such agreements, the Company has agreed to provide
the registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the Closing under the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Demand Registrations.
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(a) Requests for Registration. At any time after the date hereof and
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prior to June 15, 2006, the holders of a majority of the Liberty Registrable
Securities may, request registration under the Securities Act of 1933, as
amended (the "Securities Act") of all or any portion of their Registrable
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Securities on Form ▇-▇, ▇-▇ or any similar long-form registration ("Long-Form
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Registrations"), and the holders of a majority of the Liberty Registrable
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Securities or the holders of a majority of Riverside Registrable Securities may
request registration under the Securities Act of all or any portion of their
Registrable Securities on Form S-3 or any similar short-form registration
("Short-Form Registrations"), if available. All registrations requested
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pursuant to this Section 1(a) are referred to herein as "Demand Registrations."
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Each request for a Demand Registration shall specify the approximate number of
Registrable Securities requested to be registered and the anticipated per share
price range for such offering. Within ten days after receipt of any such
request, the Company shall give written notice of such requested registration to
all other holders of Registrable Securities and, subject to the provisions of
this Section 1, shall include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein within 15 days after the receipt of the Company's notice.
(b) Long-Form Registrations. The holders of Liberty Registrable
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Securities shall be entitled to request two Long-Form Registrations in which the
Company shall pay all Registration Expenses. A registration shall not count as
one of the permitted Long-Form Registrations until it has become effective. No
Long-Form Registration shall count as one of the permitted Long-Form
Registrations unless the holders of the Liberty Registrable Securities
requesting such registration are able
to register and sell at least 75% of the Registrable Securities they have
requested to be included in such registration; provided that in any event the
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Company shall pay all Registration Expenses in connection with any registration
initiated as a Long-Form Registration whether or not it has become effective and
whether or not such Long-Form Registration is counted as one of the Long-Form
Registrations to which the holders of Registrable Securities are entitled.
(c) Short-Form Registrations. In addition to the Long-Form
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Registrations provided pursuant to Section 1(b), the holders of a majority of
the Liberty Registrable Securities or the holders of a majority of the Riverside
Registrable Securities shall be entitled to request two Short-Form Registrations
in which the Company shall pay all Registration Expenses; provided that the
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aggregate offering value of the Registrable Securities requested to be
registered in any Short-Form Registration must equal at least $3,000,000.
Demand Registrations shall be Short-Form Registrations whenever the Company is
permitted to use any applicable short form. After the Company has become
subject to the reporting requirements of the Securities Exchange Act of 1934, as
amended, the Company shall use its reasonable best efforts to make Short-Form
Registrations available for the sale of Registrable Securities; provided that in
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any event the Company shall pay all Registration Expenses in connection with any
registration initiated as a Short-Form Registration whether or not it has become
effective and whether or not such Short-Form Registration is counted as one of
the Short-Form Registrations to which the holders of Registrable Securities are
entitled.
(d) Priority on Demand Registrations. The Company shall not include
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in any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of a majority of the Liberty
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise the Company in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold therein without adversely affecting the marketability of the
offering, the Company shall include in such registration (i) first, the
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Registrable Securities requested to be included pro rata among the respective
holders thereof on the basis of the amount of Registrable Securities owned by
each such holder and (ii) second, other securities requested to be included in
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such registration to the extent permitted by the managing underwriters.
(e) Restrictions on Demand Registrations. The Company shall not be
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obligated to effect any Demand Registration initiated by the holders of Investor
Registrable Securities within 180 days after the effective date of a previous
Demand Registration or a registration in which the holders of Investor
Registrable Securities were given piggyback rights pursuant to Section 2. On no
more than one occasion during any twelve-month period after the Company has
consummated an initial public offering of its stock for its own account or for
the account of any holders of the Common Stock under the Securities Act, the
Company may postpone for up to 90 days the filing or the effectiveness of a
registration statement for a Demand Registration if the Company's board of
directors determines in good faith that such Demand Registration would
reasonably be expected to have an adverse effect on any proposal or plan by the
Company or any of its Subsidiaries to engage in any transaction; provided that
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in such event, the holders of Investor Registrable Securities initially
requesting such Demand Registration shall be entitled to withdraw such request
and, if such request is withdrawn, such Demand Registration shall not count as
one of the permitted Demand Registrations hereunder and the Company shall pay
all Registration Expenses in connection with such registration.
(f) Selection of Underwriters. The Company's board of directors shall
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have the right to select the investment banker(s) and manager(s) to administer
the offering, subject to the approval of
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the holders of a majority of Liberty Registrable Securities included in any
Demand Registration, which shall not be unreasonably withheld or delayed.
(g) Other Registration Rights. Except as provided in this Agreement,
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the Company shall not grant to any Persons the right to request the Company to
register any capital stock or other equity securities of the Company, or any
securities convertible or exchangeable into or exercisable for such securities,
without the prior written consent of the holders of a majority of the Liberty
Registrable Securities; provided that the Company may grant rights to other
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Persons to participate in Piggyback Registrations so long as such rights are
subordinate to the rights of the holders of Investor Registrable Securities with
respect to such Piggyback Registrations, as provided in paragraphs 2(c) and 2(d)
below.
2. Piggyback Registrations.
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(a) Right to Piggybacks. Whenever the Company proposes to register
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any of its securities under the Securities Act (other than on Form S-4 or S-8)
and the registration form to be used may be used for the registration of
Registrable Securities (a "Piggyback Registration"), the Company shall give
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prompt written notice to all holders of Registrable Securities of its intention
to effect such a registration and, subject to the provisions of this Section 2,
shall include in such registration all Registrable Securities with respect to
which the Company has received written requests for inclusion therein within 20
days after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
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Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is
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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 exceeds the number
which can be sold in such offering without adversely affecting the marketability
of the offering, the Company shall include in such registration (i) first, the
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securities the Company proposes to sell, (ii) second, Registrable Securities
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requested to be included, pro rata among the respective holders thereof on the
basis of the total number of Registrable Securities requested to be included
therein, and (iii) third, other securities requested to be included in such
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registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration
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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 exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, the Company shall include
in such registration (i) first, the securities requested to be included therein
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by the holders requesting such registration and the Registrable Securities
requested to be included in such registration, pro rata among the holders of
such securities on the basis of the total number of securities so requested to
be included therein, and (ii) second, other securities requested to be included
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in such registration.
(e) Selection of Underwriters. If any Piggyback Registration is an
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underwritten offering, the selection of investment banker(s) and manager(s) for
the offering must be approved by the Company's board of directors, and the
separate approval of the holders of Investor Registrable Securities of the
investment banker(s) and manager(s) selected shall not be required.
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(f) Other Registrations. If the Company has previously filed a
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registration statement with respect to Registrable Securities pursuant to
Section 1 or pursuant to this Section 2, and if such previous registration has
not been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-8 or any successor form), whether on its
own behalf or at the request of any holder or holders of such securities, until
a period of at least 180 days has elapsed from the effective date of such
previous registration.
3. Holdback Agreements.
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(a) Each holder of Registrable Securities shall not effect any public
sale or distribution (including sales pursuant to Rule 144) of equity securities
of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and the 180-day
period beginning on the effective date of any underwritten Demand Registration
or any underwritten Piggyback Registration in which Registrable Securities are
included (except as part of such underwritten registration), unless the
underwriters managing the registered public offering otherwise agree.
(b) The Company (c) shall not effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
180-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-8 or any
successor form), unless the underwriters managing the registered public offering
otherwise agree, and (d) shall cause each holder of at least 5% (on a fully-
diluted basis) of its Common Stock, or any securities convertible into or
exchangeable or exercisable for Common Stock, purchased from the Company at any
time after the date of this Agreement (other than in a registered public
offering) to agree not to effect any public sale or distribution (including
sales pursuant to Rule 144) of any such securities during such period (except as
part of such underwritten registration, if otherwise permitted), unless the
underwriters managing the registered public offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable
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Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its best 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 shall
as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use its
best efforts to cause such registration statement to become effective; provided
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that before filing a registration statement or prospectus or any amendments or
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supplements thereto, the Company shall furnish to one or more counsel selected
by the holders of Registrable Securities covered by such registration statement
copies of all such documents proposed to be filed, which documents shall be
subject to the review and comment of such counsel;
(b) notify each holder of Registrable Securities of the effectiveness
of each registration statement filed hereunder and prepare and file with the
Securities and Exchange 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 for a period of not less
than 90 days and comply with the provisions of the Securities Act with respect
to the disposition of all
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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 such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) 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 reasonably requests 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 that the Company shall not be required to (a) qualify generally
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to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subsection, (b) subject itself to taxation in any such
jurisdiction or (c) consent to general service of process in any such
jurisdiction;
(e) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto 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 contains an untrue statement
of a material fact or omits any material fact necessary to make the statements
therein not misleading, and, at the request of any such seller, the Company
shall prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its reasonable
efforts to secure designation of all such Registrable Securities covered by such
registration statement as a NASDAQ "national market system security" within the
meaning of Rule 11Aa2-1 of the Securities and Exchange Commission or, failing
that, to secure NASDAQ authorization for such Registrable Securities and,
without limiting the generality of the foregoing, to arrange for at least two
market makers to register as such with respect to such Registrable Securities
with the NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority 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 effecting a stock split or a combination of
shares);
(i) 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 reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement;
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(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the Securities and Exchange Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering the period of at least twelve months beginning with the first day of
the Company's first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder; and
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order.
If any such registration or comparable statement refers to any holder by name or
otherwise as the holder of any securities of the Company and if in its sole and
exclusive judgment, such holder is or might be deemed to be a controlling person
of the Company, such holder shall have the right to require (i) the insertion
therein of language, in form and substance satisfactory to such holder and
presented to the Company in writing, to the effect that the holding by such
holder of such securities is not to be construed as a recommendation by such
holder of the investment quality of the Company's securities covered thereby and
that such holding does not imply that such holder shall assist in meeting any
future financial requirements of the Company, or (ii) in the event that such
reference to such holder by name or otherwise is not required by the Securities
Act or any similar Federal statute then in force (or any rules and regulations
promulgated thereunder), the deletion of the reference to such holder; provided
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that with respect to this clause (ii) such holder shall furnish to the Company
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an opinion of counsel to such effect, which opinion and counsel shall be
reasonably satisfactory to the Company.
5. Registration Expenses.
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(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, 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 as provided in this
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Agreement, except that the Company shall, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance and
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 or on the NASD automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel who shall represent all holders including shares in such registration
(other than with respect to the rendering of legal opinions to the underwriters)
and who shall be chosen by the holders of a majority of the Registrable
Securities included in such registration and for the reasonable fees and
disbursements of each additional counsel retained by any holder of Registrable
Securities for the purpose of rendering a legal opinion to the underwriters on
behalf of such holder in connection with the underwriting of any Demand
Registration or Piggyback Registration.
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(c) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
6. Indemnification.
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(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company shall indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in or based on any information or
affidavit so furnished in writing by such holder; provided that the obligation
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to indemnify shall be individual to each holder and shall be limited to the net
amount of proceeds received by such holder from the sale of Registrable
Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification; provided that the failure to give prompt notice
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shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or
elects not to, assume the defense of a claim shall not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
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(d) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and shall survive the transfer of securities. The Company and
each holder of Registrable Securities also agree to make such provisions, as are
reasonably requested by any indemnified party, for contribution to such party in
the event the Company's or such holders' indemnification is unavailable for any
reason.
7. Participation in Underwritten Registrations. No Person may
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participate in any registration hereunder which is underwritten unless such
Person (a) 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, (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements and (iii) agrees to
such other undertakings reasonably requested by the Company or the underwriters
to comply with the applicable provisions of the Securities Act and the
Securities Exchange Act; provided that no holder of Investor Registrable
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Securities included in any underwritten registration shall be required to make
any representations or warranties to the Company or the underwriters other than
representations and warranties regarding such holder and such holder's intended
method of distribution.
8. Definitions.
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"Common Stock" means the Class A Common Stock and Class B Common Stock
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of the Company.
"Investor Registrable Securities" means Registrable Securities issued
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or issuable to the Investors and their transferees.
"Liberty Registrable Securities" means Investor Registrable Securities
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issued or issuable to LPH and its transferees.
"NASD" means the National Association of Securities Dealers.
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"Option" means the option to purchase shares of Common Stock issued by
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the Company to ▇▇▇▇▇▇▇▇▇▇ pursuant to the Company's 1996 Stock Option Plan.
"Person" means an individual, a partnership, a corporation, a limited
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liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Purchase Agreement" shall have the meaning set forth in the preamble
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hereto.
"Registrable Securities" means (a) any Common Stock issued pursuant to
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the Purchase Agreement, the Management Agreement or the Investors Purchase
Agreement on the date hereof, (b) any Common Stock issued pursuant to the
Warrant, (c) any Common Stock issued upon exercise of the Option, and (d) any
Common Stock issued or issuable with respect to the securities referred to in
clauses (a), (b) or (c) above by way of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities (x) when they have been
distributed to the public pursuant to an offering registered under the
Securities Act, or (y) when they have been sold to
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the public through a broker, dealer or market maker in compliance with Rule 144
under the Securities Act (or any similar rule then in force). For purposes of
this Agreement, a Person shall be deemed to be a holder of Registrable
Securities whenever such Person has the right to acquire directly or indirectly
such Registrable Securities (upon conversion or exercise in connection with a
transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
"Riverside Registrable Securities" means Investor Registrable
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Securities issued or issuable to Riverside and its transferees.
"Warrant" means the Common Stock Purchase Warrant issued by the
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Company to LPH pursuant to the Purchase Agreement.
9. Miscellaneous.
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(a) No Inconsistent Agreements. The Company shall not hereafter
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enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the holders of Registrable Securities in
this Agreement.
(b) Adjustments Affecting Registrable Securities. The Company
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shall not take any action, or permit any change to occur, with respect to its
securities which would materially and adversely affect the ability of the
holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement or which would materially and
adversely affect the marketability of such Registrable Securities in any such
registration (including, without limitation, effecting a stock split or a
combination of shares).
(c) Remedies. Any Person having rights under any provision of
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this Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein,
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the provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company, the holders of a majority of the Liberty
Registrable Securities, and the holders of a majority of the Riverside
Registrable Securities.
(e) Successors and Assigns. All covenants and agreements in this
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Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not; provided that each such successor or assign
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acquires at least 1,000 shares of Registrable Securities (as adjusted for any
stock split, stock dividend, combinations of shares or any other
recapitalization). 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.
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(f) Severability. Whenever possible, each provision of this
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Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(g) Counterparts. This Agreement may be executed simultaneously
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in two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
(h) Descriptive Headings. The descriptive headings of this
--------------------
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
(i) Governing Law. The corporate law of the State of Delaware
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shall govern all issues and questions concerning the relative rights of the
Company and its stockholders. All other issues and questions concerning the
construction, validity, interpretation and enforcement of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of New York, without giving effect to any choice of
law or conflict of law rules or provisions (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.
(j) Notices. All notices, demands or other communications to be
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given or delivered under or by reason of this Agreement shall be in writing and
shall be either personally delivered, sent by telecopy (with hard copy to follow
via regular mail), or mailed by registered or certified mail (return receipt
requested, postage prepaid) or sent to the recipient by reputable overnight
courier service (charges prepaid). Notices shall be deemed to have been given
hereunder when delivered personally, the day sent by telecopy, three days after
deposit in the U.S. mail and one day after deposit with a reputable overnight
courier service. Such notices, demands and other communications shall be sent to
each Investor at the address indicated in the books and records of the Company
and to the Company at the address indicated below:
If to the Company:
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▇▇▇▇▇▇▇ Holdings Corporation
c/o Rudolph Technologies, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
with a copy to:
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Liberty Capital Partners, L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice to the sending party.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
▇▇▇▇▇▇▇ HOLDINGS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Its: President
---------------------------------
LIBERTY PARTNERS HOLDINGS 11, L.L.C.
By: Liberty Partners, L.P.
Its: Manager
By: Liberty Capital Partners, Inc.
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Its: Vice-President
---------------------------------
RIVERSIDE ▇▇▇▇▇▇▇, L.L.C.
By: /s/ ▇▇▇▇▇
----------------------------------
Its: Vice-President
---------------------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇