REGISTRATION RIGHTS AGREEMENT
by and between
▇▇▇▇▇▇▇ COMPANIES, INC.
as Issuer and
U.S. TRANSPORTATION, LLC
as Investor
Dated as of March 22, 2001
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of March 22, 2001 by and between ▇▇▇▇▇▇▇ Companies, Inc., an
Oklahoma corporation (the "Company"), and U.S. Transportation, LLC, a Delaware
limited liability company ("Investor").
This Agreement is made pursuant to that certain Stock and Warrant
Purchase Agreement, dated as of February 6, 2001, by and between the Company and
Investor (the "Stock Purchase Agreement"). In order to induce the Investor to
consummate the transactions contemplated by the Stock Purchase Agreement, the
Company has agreed to provide the registration rights set forth in this
Agreement.
In consideration of the mutual covenants and agreements contained
herein, the parties hereto agree as follows:
1. Definitions
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As used in this Agreement, the following capitalized terms shall have
the following meanings:
Affiliate: With respect to any Person, any other Person directly or
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indirectly controlling, controlled by or under common control with such Person.
Board: The Board of Directors of the Company.
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Common Stock: The Common Stock, par value $2.50 per share, of the
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Company.
Demand-Notice: see Section 3(a) hereof.
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Demand Registration: A registration pursuant to Section 3(a) hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended from
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time to time.
Holder: Any party hereto (other than the Company) and any holder of
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Registrable Securities who agrees in writing to be bound by the provisions of
this Agreement.
Investor: Investor and any of its Affiliates which hold Registrable
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Securities, collectively.
NASD: National Association of Securities Dealers, Inc.
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Person: An individual, partnership, limited liability company, joint
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venture, corporation, trust or unincorporated organization, a government or any
department, agency or political subdivision thereof or other entity.
Piggyback Notice: See Section 4(a) hereof.
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Piggyback Registration: A registration pursuant to Section 4 hereof.
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Prospectus: The prospectus included in any Registration Statement, as
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amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated by
reference in such prospectus.
Registrable Securities: The Warrant and all shares of Common Stock
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issuable to the Investor pursuant to the Stock Purchase Agreement or upon
exercise of the Warrant and any securities of the Company which may be issued or
distributed with respect to, or in exchange or substitution for, or conversion
of, such Common Stock and such other securities pursuant to a stock dividend,
stock split or other distribution, merger, consolidation, recapitalization or
reclassification or otherwise; provided, however, that any Registrable
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Securities shall cease to be Registrable Securities when (i) a Registration
Statement with respect to the sale of such Registrable Securities has been
declared effective under the Securities Act and such Registrable Securities have
been disposed of in accordance with the plan of distribution set forth in such
Registration Statement, (ii) such Registrable Securities are distributed
pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act or (iii) such Registrable Securities shall have been otherwise
transferred to a Person other than an Investor and new certificates for them not
bearing a legend restricting further transfer under the Securities Act shall
have been delivered by the Company; and provided, further, that any securities
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that have ceased to be Registrable Securities cannot thereafter become
Registrable Securities and any security that is issued or distributed in respect
of securities that have ceased to be Registrable Securities is not a Registrable
Security.
Registration: A Demand Registration or a Piggyback Registration.
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Registration Expenses: See Section 7 hereof.
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Registration Statement: Any registration statement of the Company
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which covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
Registration Statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such Registration Statement.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended from time to
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time.
Underwritten Registration or Underwritten Offering: A sale of
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securities of the Company to an underwriter for reoffering to the public.
Warrant: As defined in the Stock Purchase Agreement.
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2. Securities Subject to this Agreement
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(a) Registrable Securities. The securities entitled to the benefits
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of this Agreement are the Registrable Securities.
(b) Holders of Registrable Securities. A Person is deemed to be a
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Holder of Registrable Securities whenever such Person owns Registrable
Securities or has the right to acquire such Registrable Securities, whether or
not such acquisition has actually been affected and disregarding any legal
restrictions upon the exercise of such right.
3. Demand Registration
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(a) Right to Demand; Demand Notices. Subject to the provisions of
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this Section 3 at any time and from time to time, the Investor may make a
written request to the Company for registration under and in accordance with the
provisions of the Securities Act of all or part of the Registrable Securities.
The Company shall not be obligated to effect more than three Demand
Registrations requested by the Investor pursuant to this Section 3(a), and shall
not be obligated to effect a Demand Registration if the amount of Registrable
Securities proposed to be registered does not have a fair market value of at
least $5 million. Promptly upon receipt of any such request (but in no event
more than five business days thereafter), the Company will serve written notice
(the "Demand Notice") of such registration request to all Holders, and the
Company will include in such registration all Registrable Securities of any
Holder with respect to which the Company has received written requests for
inclusion therein within 10 days after the Demand Notice has been given to the
applicable Holders. All requests made pursuant to this Section 3 will specify
the aggregate amount of Registrable Securities to be registered and will also
specify the intended methods of disposition thereof.
(b) Company's Right to Defer Registration. If the Company is
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requested to effect a Demand Registration and the Company furnishes to the
Investor requesting such registration a copy of a resolution of the Board
certified by the secretary of the Company stating that (A)(i) the Company has
commenced a financing plan involving an Underwritten Offering, and (ii) the
Company's underwriter has notified the Company that it has reasonably determined
that a registration at the time and on the terms requested would materially and
adversely affect such Underwritten Offering, or (B) such registration would
result in premature disclosure of material pending corporate developments, which
premature disclosure would reasonably be expected to have a material adverse
effect on such developments, the Company shall have the right to defer such
filing for a period of not more than 90 days after receipt of the request for
such registration from such Investor. If the Company shall so postpone the
filing of a registration statement and if the Investor within 30 days after
receipt of the notice of postponement advises the Company in writing that such
Investor has determined to withdraw such request for registration, then such
Demand Registration shall be deemed to be withdrawn and the Company shall pay
all Registration Expenses in connection with such withdrawn registration
pursuant to Section 3(d) hereof. Notwithstanding the foregoing, the Company
shall not be permitted to defer requested registration in reliance on this
Section 3(b) more than once in any 12-month period.
(c) Registration Statement Form. Registrations under this Section 3
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shall be on such appropriate registration form of the SEC (i) as shall be
selected by the Company and as shall be reasonably acceptable to the Investor
and (ii) as shall permit the disposition of such
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Registrable Securities in accordance with the intended method or methods of
disposition specified in the Investor' request for such registration. If, in
connection with any registration under this Section 3 which is proposed by the
Company to be on Form S-3 or any successor form to such Form, the managing
underwriter, if any, shall advise the Company in writing that in its reasonable
business judgment the use of another permitted form is of material importance to
the success of the offering, then such registration shall be on such other
permitted form.
(d) Expenses. The Company will pay all Registration Expenses in
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connection with the Demand Registrations of Registrable Securities requested by
the Investor pursuant to this Section 3.
(e) Effective Registration Statement. The Company shall be deemed to
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have effected a Demand Registration if (i) the Registration Statement relating
to such Demand Registration is declared effective by the SEC; provided, however,
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that no Demand Registration shall be deemed to have been effected if (x) such
registration, after it has become effective, is interfered with by any stop
order, injunction or other order or requirement of the SEC or other governmental
agency or court by reason of an act or omission by the Company or (y) the
conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with such registration are not satisfied
because of an act or omission by the Company or (ii) at any time after the
Investor requests a Demand Registration and prior to the effectiveness of the
Registration Statement, the preparation of such Registration Statement is
discontinued or such Registration Statement is withdrawn or abandoned at the
request of the Investor unless the Investor has elected to pay and has paid to
the Company in full the Registration Expenses in connection with such
Registration Statement or the Investor has made such withdrawal request pursuant
to the provisions of Section 3(b).
(f) Priority on Demand Registrations. If the managing underwriter or
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agent of a Demand Registration (or, in the case of a Demand Registration not
being underwritten, the Investor), advises the Company in writing that in its
opinion the number of securities requested to be included in such Demand
Registration exceeds the number which can be sold in the offering covered by
such Demand Registration without a significant adverse effect on the price,
timing or distribution of the securities offered, then the Company will include
in such registration only the number of securities that, in the opinion of such
underwriter or agent (or any of the Investor, as the case may be), can be sold
without a significant adverse effect on the price, timing or distribution of the
securities offered, selected pro rata among the Holders which have requested to
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be included in such Demand Registration based upon the relative aggregate amount
of gross proceeds to be received by such Holders in such offering to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount recommended by such underwriters or agent (or the
Investor, as the case may be).
The Company and other holders of securities of the Company may include
such securities in such Registration if, but only if, such underwriter or agent
(or the Investor, as the case may be) concludes that such inclusion will not
interfere with the successful marketing of all the Registrable Securities
requested to be included in such registration.
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(g) Selection of Underwriters. If any offering pursuant to a Demand
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Registration involves an Underwritten Offering, the Holders of a majority of the
Registrable Securities included in such Demand Registration shall have the right
to select the managing underwriter or underwriters to administer the offering,
which managing underwriter shall be a firm of nationally recognized standing and
reasonably satisfactory to the Company.
4. Piggyback Registrations
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(a) Participation. Subject to Section 4(b) hereof, if at any time
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after the date hereof the Company files a Registration Statement (other than a
registration on Form S-4 or S-8 or any successor form to such Forms or any
registration of securities as it relates to an offering and sale to management
of the Company pursuant to any employee stock plan or other employee benefit
plan arrangement) with respect to an offering that includes any shares of Common
Stock, then the Company shall give prompt notice (the "Initial Notice") to the
Investor and the Investor shall be entitled to include in such Registration
Statement any Registrable Securities held by it, provided, however, that the
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Investor shall not be entitled to such participation rights with respect to the
Registration Statement to be filed within ninety (90) days following the
issuance of securities under the Company's convertible senior subordinated notes
offering (and the common stock issued upon conversion thereof) which closed on
March 15, 2001, as such offering may be revised, amended, altered or
supplemented in the discretion of the Company. If the Investor elects to
include any or all of its Registrable Securities in such Registration Statement,
then the Company shall give prompt notice (the "Piggyback Notice") to each
Holder (excluding the Investor) and each such Holder shall be entitled to
include in such Registration Statement any Registrable Securities held by it.
The Initial Notice and Piggyback Notice shall offer the Investor and the
Holders, respectively, the opportunity to register such number of shares of
Registrable Securities as the Investor and each Holder may request and shall set
forth (i) the anticipated filing date of such Registration Statement and (ii)
the number of shares of Common Stock that is proposed to be included in such
Registration Statement. The Company shall include in such Registration
Statement such shares of Registrable Securities for which it has received
written requests to register such shares within 15 days after the Initial Notice
and 7 days after the Piggyback Notice has been given.
(b) Underwriter's Cutback. Notwithstanding the foregoing, if a
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Registration pursuant to this Section 4 involves an Underwritten Offering and
the managing underwriter or underwriters of such proposed Underwritten Offering
delivers an opinion to the Holders that the total or kind of securities which
such Holders and any other persons or entities intend to include in such
offering would be reasonably likely to significantly adversely affect the price,
timing or distribution of the securities offered in such offering, then the
Company shall include in such Registration (i) first, if the Company has
initiated such Registration for the purpose of selling securities for its own
account, 100% of the securities the Company proposes to sell, and (ii) second,
to the extent of the amount of securities which all Holders and any other Person
initiating such Registration (and the Company if it has not initiated such
Registration for the purpose of selling securities for its own account) have
requested to be included in such Registration, which, in the opinion of the
managing underwriter or underwriters, can be sold without such adverse effect
referred to above, such amount to be allocated pro rata among all Holders and
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any other
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Person initiating such Registration (and the Company, as the case may be), based
upon the relative aggregate amount of gross proceeds to be received by any
Holders in the offering.
(c) Expenses. The Company will pay all Registration Expenses in
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connection with each registration of Registrable Securities requested pursuant
to this Section 4.
(d) Company Control. The Company may decline to file a Registration
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Statement after giving the Initial Notice or the Piggyback Notice, or withdraw a
Registration Statement after filing and after such Piggyback Notice, but prior
to the effectiveness of the Registration Statement, provided that the Company
shall promptly notify each Holder in writing of any such action and provided
further that the Company shall bear all reasonable expenses incurred by such
Holder or otherwise in connection with such withdrawn Registration Statement.
(e) No Effect on Demand Registrations. No registration effected under
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this Section 4 shall be deemed to have been effected pursuant to Section 3
hereof or shall relieve the Company of its obligation to effect any registration
upon request under Section 3 hereof.
5. Hold-Back Agreements
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(a) Restrictions on Public Sale by Holder of Registrable Securities.
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Each Holder whose Registrable Securities are covered by a Registration Statement
filed pursuant to Sections 3 and 4 hereof agrees, if requested by the managing
underwriters in an Underwritten Offering, not to effect any public sale or
distribution of securities of the Company the same as or similar to those being
registered, or any securities convertible into or exchangeable or exercisable
for such securities, in such Registration Statement, including a sale pursuant
to Rule 144 under the Securities Act (except as part of such Underwritten
Registration), during the 7-day period prior to, and during the 90-day period
(or such longer period of up to 180 days as may be required by such underwriter
of all Persons whose securities are covered by such Registration Statement)
beginning on, the effective date of any Registration Statement in which such
Holders are participating (except as part of such Registration) or the
commencement of the public distribution of securities, to the extent timely
notified in writing by the Company or the managing underwriters.
(b) Restrictions on Public Sale by the Company and Others. The
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Company agrees not to effect any public sale or distribution of any securities
the same as or similar to those being registered by the Company, or any
securities convertible into or exchangeable or exercisable for such securities,
during the 7-day period prior to, and during the 90-day period (or such longer
period of up to 180 days as may be required by such underwriter) beginning with,
the effective date of a Registration Statement filed under Sections 3 and 4
hereof or the commencement of the public distribution of securities to the
extent timely notified in writing by a Holder or the managing underwriters
(except as part of such registration, if permitted, or pursuant to registrations
on Forms S-4 or S-8 or any successor form to such Forms or any registration of
securities for offering and sale to management of the Company pursuant to any
employee stock plan or other employee benefit plan arrangement). The Company
agrees to use reasonable efforts to obtain from each holder of its securities
the same as or similar to those being registered by the Company, or any
securities convertible into or exchangeable or
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exercisable for any of such securities, an agreement not to effect any public
sale or distribution of such securities (other than securities purchased in a
public offering) during such period, except as part of any such registration if
permitted.
6. Registration Procedures
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In connection with the Company's Registration obligations pursuant to
Sections 3 and 4 hereof, the Company will use its best efforts to effect such
Registration to permit the sale of such Registrable Securities in accordance
with the intended method or methods of distribution thereof, and pursuant
thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements relating to the applicable Demand Registration or
Piggyback Registration including all exhibits and financial statements required
by the SEC to be filed therewith, and use its best efforts to cause such
Registration Statement to become and remain effective for a period of not less
than 150 days; provided, that the Company will furnish copies of any amendments
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or supplements in the form filed with respect to any Piggyback Registration,
simultaneously with the filing of such amendments or supplements;
(b) prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep the
Registration Statement effective for a period of not less than 150 days (or such
shorter period which will terminate when all Registrable Securities covered by
such Registration Statement have been sold or withdrawn), or, if such
Registration Statement relates to an Underwritten Offering, such longer period
as in the opinion of counsel for the underwriters a Prospectus is required by
law to be delivered in connection with sales of Registrable Securities by an
underwriter or dealer; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act; and comply with the provisions of the Securities Act,
the Exchange Act, and the rules and regulations promulgated thereunder with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(c) notify the selling Holders and the managing underwriters, if any,
and (if requested) confirm such advice in writing, as soon as practicable after
notice thereof is received by the Company (i) when the Registration Statement or
any amendment thereto has been filed or becomes effective, the Prospectus or any
amendment or supplement to the Prospectus has been filed, and, to furnish such
selling Holders and managing underwriters with copies thereof, (ii) of any
request by the SEC for amendments or supplements to the Registration Statement
or the Prospectus or for additional information, (iii) of the issuance by the
SEC of any stop order suspending the effectiveness of the Registration Statement
or any order preventing or suspending the use of any preliminary Prospectus or
Prospectus or the initiation or threatening of any proceedings for such
purposes, (iv) if at any time the representations and warranties of the Company
contemplated by paragraph (m) below cease to be true and correct and (v) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of
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the Registrable Securities for offering or sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(d) (i) promptly notify the selling Holders and the managing
underwriters, if any, at any time prior to nine months after the time of issue
of the Prospectus, when the Company becomes aware of the happening of any event
as a result of which the Prospectus included in such Registration Statement (as
then in effect) contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein (in the case of
the Prospectus and any preliminary Prospectus, in light of the circumstances
under which they were made) when such Prospectus was delivered not misleading
or, if for any other reason it shall be necessary during such time period to
amend or supplement the Prospectus in order to comply with the Securities Act
and, (ii) in either case as promptly as practicable thereafter, prepare and file
with the SEC, and furnish without charge to the selling Holders and the managing
underwriters, if any, a supplement or amendment to such Prospectus which will
correct such statement or omission or effect such compliance;
(e) make every reasonable effort to prevent the entry, or obtain the
withdrawal, of any stop order or other order suspending the use of any
preliminary Prospectus or Prospectus or suspending any qualification of the
Registrable Securities;
(f) if requested by the managing underwriter or underwriters or a
Holder of Registrable Securities being sold in connection with an Underwritten
Offering, promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters and the Holders of a
majority of the Registrable Securities being sold agree should be included
therein relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to the
number of Registrable Securities being sold to such underwriters, the purchase
price being paid therefor by such underwriters and with respect to any other
terms of the Underwritten (or best efforts underwritten) Offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(g) furnish to each selling Holder and each managing underwriter,
without charge, one executed copy and as many conformed copies as they may
reasonably request, of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those incorporated
by reference);
(h) deliver to each selling Holder and the underwriters, if any,
without charge, as many copies of the Prospectus (including each preliminary
Prospectus) and any amendment or supplement thereto as such Persons may
reasonably request (it being understood that the Company consents to the use of
the Prospectus or any amendment or supplement thereto by each of the selling
Holders and the underwriters, if any, in connection with the offering and sale
of the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto) and such other documents as such selling Holder may
reasonably request in order to facilitate the disposition of the Registrable
Securities by such Holder;
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(i) on or prior to the date on which the Registration Statement is
declared effective, use its best efforts to register or qualify, and cooperate
with the selling Holders, the managing underwriter or agent, if any, and their
respective counsel in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue sky laws
of each state and other jurisdiction of the United States as any such seller,
underwriter or agent reasonably requests in writing and do any and all other
acts or things reasonably necessary or advisable to keep such registration or
qualification in effect for so long as such Registration Statement remains in
effect and so as to permit the continuance of sales and dealings therein for as
long as may be necessary to complete the distribution of the Registrable
Securities covered by the Registration Statement; provided that the Company will
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not be required to qualify generally to do business in any jurisdiction where it
in not then so qualified or to take any action which would subject it to general
service of process in any such jurisdiction where it is not then so subject;
(j) cooperate with the selling Holders and the managing underwriter
or agent, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters may
request at least two business days prior to any sale of Registrable Securities
to the underwriters;
(k) use its best efforts to cause the Registrable Securities covered
by the applicable Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities;
(l) not later than the effective date of the applicable Registration,
provide a CUSIP number for all Registrable Securities and provide the applicable
trustee or transfer agent with printed certificates for the Registrable
Securities which are in a form eligible for deposit with The Depository Trust
Company;
(m) make such representations and warranties to the Holders of
Registrable Securities being registered, and the underwriters or agents, if any,
in form, substance and scope as are customarily made by issuers in primary
underwritten public offerings;
(n) enter into such customary agreements (including an underwriting
agreement) and take all such other actions as the majority of the Holders of any
Registrable Securities being sold or the managing underwriter or agent, if any,
reasonably request in order to expedite or facilitate the Registration and
disposition of such Registrable Securities; provided that none of such
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agreements shall increase the potential liability of the Holders of any
Registrable Securities being registered beyond that otherwise provided in
Section 8 of this Agreement;
(o) obtain for delivery to the Holders of Registrable Securities
being registered and to the underwriter or agent an opinion or opinions from
counsel for the Company, upon consummation of the sale of such Registrable
Securities to the underwriters (the "Closing Date")
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in customary form and in form, substance and scope reasonably satisfactory to
such Holders and their counsel, and the underwriters or agents and their
counsel;
(p) obtain for delivery to the Company and the underwriter or agent,
with copies to the Holders, a cold comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by cold comfort letters as the managing underwriter or the
Holders of a majority of the Registrable Securities being sold reasonably
request, dated the effective date of the Registration Statement and brought down
to the Closing Date;
(q) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the NASD;
(r) make available for inspection by a representative of the Holders
of a majority of the Registrable Securities, any underwriter participating in
any disposition pursuant to such Registration, and any attorney or accountant
retained by such Holders or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any such representative, underwriter, attorney or accountant in
connection with such Registration; provided that any records, information or
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documents that are designated by the Company in writing as confidential shall be
kept confidential by such Persons unless disclosure of such records, information
or documents is required by law;
(s) use its best efforts to comply with all applicable rules and
regulations of the SEC and make generally available to its security holders, as
soon as reasonably practicable (but not more than eighteen months) after the
effective date of the Registration Statement, an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act and the rules and
regulations promulgated thereunder;
(t) as promptly as practicable after filing with the SEC of any
document which is incorporated by reference into the Registration Statement or
the Prospectus, provide copies of such document to counsel for the selling
Holders and to the managing underwriters, if any;
(u) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such Registration Statement from and
after a date not later than the effective date of such Registration Statement;
and
(v) use its best efforts to list (if such Registrable Securities are
not already listed) all Registrable Securities covered by such Registration
Statement on The New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market.
The Company may require each Holder of Registrable Securities as to
which any Registration is being effected to furnish to the Company such
information regarding the distribution of such securities and such other
information relating to such Holder and its
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ownership of Registrable Securities as the Company may from time to time
reasonably request in writing. Each Holder agrees to furnish such information to
the Company and to cooperate with the Company as necessary to enable the Company
to comply with the provisions of this Agreement.
Each Holder agrees by acquisition of such Registrable Securities that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 6(d)(i) hereof, such Holder will forthwith discontinue
disposition of Registrable Securities pursuant to such Registration Statement
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 6(d)(ii) hereof, or until it is advised in
writing by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings which are incorporated
by reference in the Prospectus, and, if so directed by the Company, such Holder
will deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event that the Company shall give such notice, the Company shall
extend the period during which such registration statement shall be maintained
effective by the number of days during the period from and including the date of
the giving of notice pursuant to Section 6(d)(i) hereof to the date when the
Company shall make available to the Holders a Prospectus supplemented or amended
to conform with the requirements of Section 6(d)(ii) hereof.
7. Registration Expenses
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All expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation (i) all registration and
filing fees, and any other fees and expenses associated with filings required to
be made with any stock exchange, the SEC and the NASD (including, if applicable,
the fees and expenses of any "qualified independent underwriter" and its counsel
as may be required by the rules and regulations of the NASD), (ii) all fees and
expenses of compliance with state securities or blue sky laws (including fees
and disbursements of counsel for the underwriters or selling Holders in
connection with blue sky qualifications of the Registrable Securities and
determination of their eligibility for investment under the laws of such
jurisdictions as the managing underwriters or the majority of the Holders of the
Registrable Securities being sold may designate), (iii) all printing and related
messenger and delivery expenses (including expenses of printing certificates for
the Registrable Securities in a form eligible for deposit with The Depository
Trust Company and of printing prospectuses), (iv) all fees and disbursements of
counsel for the Company and of all independent certified public accountants of
the Company (including the expenses of any special audit and "cold comfort"
letters required by or incident to such performance), (v) Securities Act
liability insurance if the Company so desires or the underwriters so require,
(vi) all fees and expenses incurred in connection with the listing of the
Registrable Securities on any securities exchange and all rating agency fees,
(vii) all reasonable fees and disbursements of one counsel selected by the
Holders of the Registrable Securities being registered to represent such Holders
in connection with such registration, up to a maximum of $50,000, (viii) all
fees and disbursements of underwriters customarily paid by the issuers or
sellers of securities, excluding underwriting discounts and commissions and
transfer taxes, if any, and fees and disbursements of counsel to underwriters
(other than such fees and disbursements incurred in connection with any
registration
11
or qualification of Registrable Securities under the securities or blue sky laws
of any state), and (ix) fees and expenses of other Persons retained by the
Company (all such expenses being herein called "Registration Expenses"), will be
borne by the Company, regardless of whether the Registration Statement becomes
effective (except as provided in Sections 3(d) and (e) hereof). The Company
will, in any event, pay its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any audit and the fees and expenses of any
Person, including special experts, retained by the Company.
8. Indemnification
---------------
(a) Indemnification by Company. The Company agrees to indemnify and
--------------------------
hold harmless, to the full extent permitted by law, each Holder and each Person
who controls such Holder (within the meaning of the Securities Act), and each of
their respective partners, members, officers, directors, employees and agents
(collectively, the "Company Indemnified Persons"), against any and all losses,
claims, damages, liabilities, reasonable attorneys fees, costs or expenses and
costs and expenses of investigating and defending any such claim (collectively,
"Damages"), joint or several, and any action in respect thereof to which any
such Company Indemnified Person may become subject under the Securities Act or
otherwise, insofar as such Damages (or proceedings in respect thereof) arise out
of, or are based upon, any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or preliminary Prospectus or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as the same are caused by or contained in any information
furnished in writing to the Company by such Holder expressly for use therein,
and shall promptly reimburse each Company Indemnified Person for any legal and
other expenses reasonably incurred by that Company Indemnified Person in
investigating or defending or preparing to defend against any such Damages or
proceedings; provided, however, that the Company shall not be liable in any such
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case to the extent that any such Damages arise out of or are based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any such preliminary Prospectus if (i) such offering does not involve an
underwriter, (ii) such Holder failed to deliver or cause to be delivered a copy
of the Prospectus to the Person asserting such loss, claim, damage, liability or
expense after the Company had timely furnished such Holder with a sufficient
number of copies of the same and (iii) the Prospectus completely corrected in a
timely manner such untrue statement or omission; and provided, further, that the
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Company shall not be liable in any such case to the extent that any such Damages
arise out of or are based upon an untrue statement or alleged untrue statement
or omission or alleged omission in the Prospectus, if (x) such offering does not
involve an underwriter, (y) such untrue statement or alleged untrue statement,
omission or alleged omission is completely corrected in an amendment or
supplement to the Prospectus and (z) the Holder thereafter fails to deliver such
Prospectus as so amended or supplemented prior to or concurrently with the sale
of the Registrable Securities to the Person asserting such loss, claim, damage,
liability or expense after the Company had furnished such Holder with a
sufficient number of copies of the same. The Company also agrees to indemnify
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, their officers and directors
and each Person who controls such
12
Persons (within the meaning of the Securities Act) to the same extent as
provided above with respect to the indemnification of the Holders.
(b) Indemnification by Selling Holder of Underlying Securities. In
----------------------------------------------------------
connection with each Registration, each selling Holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any Registration Statement or Prospectus and
agrees to indemnify and hold harmless, to the full extent permitted by law, the
Company and each Person who controls the Company (within the meaning of the
Securities Act), and each of their respective directors, officers, employees and
agents, against any and all Damages resulting from any untrue statement of a
material fact or any omission of a material fact required to be stated in the
Registration Statement or Prospectus or preliminary Prospectus or necessary to
make the statements therein not misleading, to the extent, but only to the
extent, that such untrue statement or omission is contained in any information
or affidavit so furnished in writing by such selling Holder to the Company
specifically for inclusion in such Registration Statement or Prospectus and has
not been corrected in a subsequent writing prior to or concurrently with the
sale of the Registrable Securities to the Person asserting such Damages. In no
event shall the liability of any selling Holder hereunder be greater in amount
than the dollar amount of the proceeds received by such Holder upon the sale of
the Registrable Securities giving rise to such indemnification obligation. The
Company shall be entitled to receive indemnities from underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided above with
respect to information so furnished in writing by such Persons specifically for
inclusion in any Prospectus or Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
--------------------------------------
indemnification hereunder will (i) give prompt (but in any event within 30 days
after such Person has actual knowledge of the facts constituting the basis for
indemnification) written notice to the indemnifying party of any claim with
respect to which it seeks indemnification and (ii) permit such indemnifying
party to assume the defense of such claim with counsel reasonably satisfactory
to the indemnified party; provided, however, that any delay or failure to so
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notify the indemnifying party shall relieve the indemnifying party of its
obligations hereunder only to the extent, if at all, that it is prejudiced by
reason of such delay or failure; provided, further however, that any Person
-------- ------- -------
entitled to indemnification hereunder shall have the right to select and employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such Person unless (a)
the indemnifying party has agreed in writing to pay such fees or expenses, or
(b) the indemnifying party shall have failed to assume the defense of such claim
within a reasonable time after receipt of notice of such claim from the Person
entitled to indemnification hereunder and employ counsel reasonably satisfactory
to such Person or (c) in the reasonable judgment of any such Person, based upon
advice of its counsel, a conflict of interest may exist between such Person and
the indemnifying party with respect to such claims (in which case, if the Person
notifies the indemnifying party in writing that such Person elects to employ
separate counsel at the expense of the indemnifying party, the indemnifying
party shall not have the right to assume the defense of such claim on behalf of
such Person). If such defense is not assumed by the indemnifying party, the
indemnifying party will not be subject to any liability for any settlement made
without its consent (but such consent will not be unreasonably withheld),
provided that an indemnified party shall not be required to
--------
13
consent to any settlement involving the imposition of equitable remedies or
involving the imposition of any material obligations on such indemnified party
other than financial obligations for which such indemnified party will be
indemnified hereunder. No indemnifying party will be required to consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation. Whenever the indemnified party or the indemnifying party receives a
firm offer to settle a claim for which indemnification is sought hereunder, it
shall promptly notify the other of such offer. If the indemnifying party refuses
to accept such offer within 20 business days after receipt of such offer (or of
notice thereof), such claim shall continue to be contested and, if such claim is
within the scope of the indemnifying party's indemnity contained herein, the
indemnified party shall be indemnified pursuant to the terms hereof. If the
indemnifying party notifies the indemnified Party in writing that the
indemnifying party desires to accept such offer, but the indemnified party
refuses to accept such offer within 20 business days after receipt of such
notice, the indemnified party may continue to contest such claim and, in such
event, the total maximum liability of the indemnifying party to indemnify or
otherwise reimburse the indemnified party hereunder with respect to such claim
shall be limited to and shall not exceed the amount of such offer, plus
reasonable out-of-pocket costs and expenses (including reasonable attorneys'
fees and disbursements) to the date of notice that the indemnifying party
desires to accept such offer, provided that this sentence shall not apply to any
--------
settlement of any claim involving the imposition of equitable remedies or to any
settlement imposing any material obligations on such indemnified party other
than financial obligations for which such indemnified party will be indemnified
hereunder. An indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim will not be obligated to pay the fees and expenses
of more than one counsel for all parties indemnified by such indemnifying party
with respect to such claim in any one jurisdiction, unless in the written
opinion of counsel to the indemnified party, reasonably satisfactory to the
indemnifying party, use of one counsel would be expected to give rise to a
conflict of interest between such indemnified party and any other of such
indemnified parties with respect to such claim, in which event the indemnifying
party shall be obligated to pay the fees and expenses of one such additional
counsel.
(d) Other Indemnification. Indemnification similar to that specified
---------------------
in this Section 8 (with appropriate modifications) shall be given by the Company
and each seller of Registrable Securities with respect to any required
registration or other qualification of securities under federal or state law or
regulation of governmental authority other than the Securities Act.
(e) Contribution. If for any reason the indemnification provided for
------------
in the preceding clauses (a) and (b) is unavailable to an indemnified party or
insufficient to hold it harmless as contemplated by the preceding clauses (a)
and (b), then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of such Damages in such proportion
as is appropriate to reflect not only the relative benefits received by the
indemnified party and the indemnifying party, but also the relative fault of the
indemnified party and the indemnifying party, as well as any other relevant
equitable considerations, provided that no selling Holder shall be required to
contribute in an amount greater than the dollar amount of the proceeds received
by such selling Holder with respect to the sale of any securities. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act)
14
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Each selling Holder's obligation to contribute
pursuant to this Section 8(e) is several and not joint. The provisions of this
Section 8 shall survive, notwithstanding any transfer of the Registrable
Securities by any Holder or any termination of this Agreement.
9. Rules 144.
---------
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder, and it will take such further action
as any Holder may reasonably request, all to the extent required from time to
time to enable such Holder to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemption provided by (a)
Rule 144 under the Securities Act, as such Rules may be amended from time to
time, or (b) any similar rules or regulations hereafter adopted by the SEC.
Upon the request of any Holder, the Company will deliver to such Holder a
written statement as to whether it has complied with such information and
requirements.
10. Participation in Underwritten Registrations
-------------------------------------------
No Person may participate in any underwritten registration hereunder
unless such Person (a) agrees to sell such Person's securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements, and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements and this Agreement; provided that (i) no selling Holder shall be
--------
required to make any representations or warranties except those which relate
solely to such selling Holder and its intended method of distribution, and (ii)
the liability of each selling Holder to any underwriter under such underwriting
agreement will be limited to liability arising from misstatements or omissions
regarding such selling Holder and its intended method of distribution and any
such liability shall not exceed an amount equal to the amount of net proceeds
such selling Holder derives from such registration; provided, however, that in
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an offering by the Company in which any Holder requests to be included in a
Piggyback Registration, the Company shall use its reasonable best efforts to
arrange the terms of the offering such that the provisions set forth in clauses
(i) and (ii) of this Section 10 are true; provided further, that if the Company
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fails in its reasonable best efforts to so arrange the terms, the Holder may
withdraw all or any part of its Registrable Securities from the Piggyback
Registration and the Company shall reimburse such Holder for all reasonable out-
of-pocket expenses (including counsel fees and expenses) incurred prior to such
withdrawal.
11. Miscellaneous
-------------
(a) Remedies. Remedies for breach by the Company of its obligations
--------
to register the Registrable Securities shall be as set forth herein. Each
Holder, in addition to being entitled to exercise all rights provided herein or
granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a
15
breach by it of the provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate. Remedies for breach by any Holder of its obligations under this
Agreement shall be as set forth in Section 8.
(b) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of the
Holders of a majority of the outstanding Registrable Securities; provided,
--------
however, that the Company and the Investor together may amend, modify or
-------
supplement the provisions of this Agreement and may waive or consent to
departures from the provisions hereof, without the consent of the Holders of a
majority of the outstanding Registrable Securities so long as such amendment,
modification, supplement, waiver or consent does not adversely affect the rights
of Holders of Registrable Securities hereunder or so long as such amendment,
modification, supplement, waiver or consent affects the rights of the Investor
and other Holders of Registrable Securities hereunder equally.
(c) Notices. All notices, requests, consents and other communications
-------
hereunder shall be in writing, shall be mailed (A) if within domestic United
States by nationally recognized overnight express courier, postage prepaid, or
by facsimile, or (B) if delivered from outside the United States, by
International Federal Express or facsimile, and shall be deemed given (i) if
delivered by nationally recognized overnight carrier, one (1) business day after
so mailed, (ii) if delivered by International Federal Express, two (2) business
days after so mailed, and (iii) if delivered by facsimile, upon electric
confirmation of receipt and shall be delivered as addressed as follows:
(x) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section 12(c),
which address initially is, with respect to the Investor, U.S. Transportation,
LLC, c/o The Yucaipa Companies, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇; and
(y) if to the Company, initially at the address set forth below
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 12(c): ▇▇▇▇▇▇▇ Companies, Inc., ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel.
(d) Successors and Assigns. This Agreement including, without
----------------------
limitation, all registration rights in connection with the ownership of all or a
portion of the Registrable Securities pursuant to Sections 3 and 4 hereof, shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties, including, without limitation, and without the need for an
express assignment subsequent Holders of Registrable Securities.
(e) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
16
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of California, without regard to the
principles of conflicts of laws.
(h) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(i) Entire Agreement. This Agreement is intended by the parties as a
----------------
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the securities issued pursuant to the Stock Purchase Agreement. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matters.
(j) Other Registration Rights. Without the written consent of the
-------------------------
Holders of a majority of the outstanding Registrable Securities, the Company
shall not grant to any person the right to request the Company to register any
equity securities of the Company under the Securities Act unless the rights so
granted are subject to the prior rights of the Holders of Registrable Securities
set forth herein, and are not otherwise in conflict or inconsistent with the
provisions of, this Agreement.
17
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
The Company: ▇▇▇▇▇▇▇ COMPANIES, INC.,
An Oklahoma corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Vice President, General Counsel
and Corporate Secretary
The Investor: U.S. TRANSPORTATION, LLC, a Delaware limited
liability company
By: The Yucaipa Companies, LLC
Its Managing Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its Managing Member
18