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Exhibit 10.22
Draft-June 10, 1999
REGISTRATION RIGHTS AGREEMENT
MCM CAPITAL GROUP, INC.
Dated as of _________, 1999
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TABLE OF CONTENTS
Page
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1. Registrations Upon Request.................................................. 2
1.1. Requests by Stockholders......................................... 2
1.2. Registration Statement Form...................................... 3
1.3. Expenses......................................................... 3
1.4. Priority in Demand Registrations................................. 3
1.5. No Company or Other Stockholder Initiated Registration........... 4
2. Incidental Registrations.................................................... 4
3. Registration Procedures..................................................... 6
4. Underwritten Offerings...................................................... 10
4.1. Underwriting Agreement........................................... 10
4.2. Selection of Underwriters........................................ 11
5. Holdback Agreements......................................................... 11
6. Preparation; Reasonable Investigation....................................... 12
7. No Grant of Future Registration Rights...................................... 12
8. [Reserved].................................................................. 12
9. Indemnification............................................................. 12
9.1. Indemnification by the Company................................... 12
9.2. Indemnification by the Sellers................................... 13
9.3. Notices of Claims, etc........................................... 14
9.4. Other Indemnification............................................ 15
9.5. Indemnification Payments......................................... 15
9.6. Other Remedies................................................... 15
10. Representations and Warranties............................................. 16
11. Definitions................................................................ 17
12. Miscellaneous.............................................................. 19
12.1. Rule 144, etc................................................... 19
12.2. Successors, Assigns and Transferees............................. 19
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12.3. Amendment and Modification...................................... 19
12.4. Governing Law................................................... 19
12.5. Invalidity of Provision......................................... 19
12.6. Notices......................................................... 20
12.7. Headings; Execution in Counterparts............................. 21
12.8. Injunctive Relief............................................... 22
12.9. Term............................................................ 22
12.10. Further Assurances............................................. 22
12.11. Entire Agreement............................................... 22
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is dated as of the ___
day of ___________, 1999 among MCM Capital Group, Inc., a Delaware
corporation (the "COMPANY"), C.P. International Investments Limited, a
Bahamian company (together with its Affiliated Stockholders (as herein
defined), if any, "CPII"), MCM Holding Company LLC, a New York limited
liability company (together with its Affiliated Stockholders, if any, "MCM
HOLDING"), and each of the persons whose names are listed on Schedule A
hereto (together with their respective Affiliated Stockholders, if any, the
"MCM HOLDING Distributees"). Capitalized terms used but not otherwise
defined herein have their respective meanings set forth in Section 11.
WHEREAS, CPII and MCM Holding have entered into a Stock
Purchase Agreement, dated February 13, 1998 (the "STOCK PURCHASE
AGREEMENT"), with the Company and the then stockholders of the Company (the
"INITIAL STOCKHOLDERS"), pursuant to which CPII and MCM Holding agreed to
purchase from the Initial Stockholders certain shares of common stock of
Midland Corporation of Kansas, the corporate predecessor to the Company
("MIDLAND KANSAS"), on the terms and subject to the conditions therein set
forth;
WHEREAS, as a condition to execution and delivery by CPII
and MCM Holding of the Stock Purchase Agreement, Midland Kansas, the
Initial Stockholders, CPII and MCM Holding entered into a Stockholders'
Agreement, dated as of February 13, 1998 (the "STOCKHOLDERS' AGREEMENT"),
providing for certain rights and obligations of the parties thereto;
WHEREAS, pursuant to a [Certificate and Plan of Merger],
filed with the Secretary of State of the State of Delaware, effective [ ],
1999, Midland Kansas merged with and into the Company with the Company as
the surviving corporation, whereupon the Company succeeded to the rights
and obligations of Midland Kansas and CPII and MCM Holding became
stockholders of the Company;
WHEREAS, the Company desires to consummate an IPO and, in
connection therewith, to eliminate certain rights held by CPII and MCM
Holding pursuant to the Stockholders' Agreement pursuant to an amendment to
the Stockholders' Agreement, dated as of the date hereof (the
"STOCKHOLDERS' AGREEMENT AMENDMENT");
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WHEREAS, immediately following the consummation of the
IPO, MCM Holding expects to distribute shares of Common Stock held by MCM
Holding to the MCM Holding Distributees, who represent all of the members
of MCM Holding; and
WHEREAS, it is a condition of the execution and delivery
by CPII and MCM Holding of the Stockholders' Agreement Amendment, that the
Company enter into this Agreement for the purpose of providing for certain
registration rights for the benefit of holders of Registrable Securities;
NOW, THEREFORE, in consideration of the mutual covenants
and undertakings contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and subject to and on the terms and conditions herein set
forth, the parties hereto agree as follows:
1. Registrations Upon Request.
1.1. Requests by Stockholders. At any time, the MCM
Holding Distributees (as a group) and CPII shall each have the right to
make requests that the Company effect up to two separate registrations
under the Securities Act of all or part of the Registrable Securities owned
by them, respectively. In the case of the MCM Holding Distributees, such
right to request up to two registrations will be exercisable by any MCM
Holding Distributees owning singly or in the aggregate at least 25% of the
then outstanding Registrable Securities then owned by all MCM Holding
Distributees or, if less, the aggregate number of outstanding Registrable
Securities then owned by all MCM Holding Distributees (the "QUALIFIED MCM
STOCKHOLDERS"). A request made by either the Qualified MCM Stockholders or
CPII (in either case, the "REQUESTING PARTY") shall not be counted for
purposes of the request limitations set forth above (a) if the Requesting
Party determines in its good faith judgment to withdraw the proposed
registration of any Registrable Securities requested to be registered
pursuant to this Section 1.1 due to marketing or regulatory reasons, (b)
the registration statement relating to any such request is not declared
effective within 90 days of the date such registration statement is first
filed with the Commission, (c) if, within 180 days after the registration
relating to any such request has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement
of the Commission or other governmental agency or court for any reason and
the Company fails to have such stop order, injunction or other order or
requirement removed, withdrawn or resolved to the Requesting Party's
reasonable satisfaction within 30 days, (d) if more than 10% of the
Registrable Securities requested by the Requesting Party to be included in
the registration are not so included pursuant to Section 1.4 or (e) the
conditions to closing specified in the underwriting agreement or purchase
agreement entered into in connection with the registration relating to any
such request are not satisfied (other than as a result of a default or
breach
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thereunder by the Requesting Party). Upon any such request, the Company
will promptly, but in any event within 15 days, give written notice of such
request to all holders of Registrable Securities and thereupon the Company
will, subject to Section 1.4, use its best efforts to effect the prompt
registration under the Securities Act of:
(i) the Registrable Securities which the Company has been
so requested to register by the Requesting Party, and
(ii) all other Registrable Securities which the Company
has been requested to register by the holders thereof by written
request given to the Company by such holders within 20 days after
the giving of such written notice by the Company to such holders,
all to the extent required to permit the disposition of the Registrable
Securities so to be registered in accordance with the intended method or
methods of disposition of each seller of such Registrable Securities.
1.2. Registration Statement Form. A registration requested
pursuant to Section 1.1 shall be effected by the filing of a registration
statement on a form reasonably acceptable to the Requesting Party.
1.3. Expenses. The Company will pay all Registration
Expenses in connection with any registration requested under Section 1.1;
provided that each seller of Registrable Securities shall pay all
Registration Expenses to the extent required to be paid by such seller
under applicable law and all underwriting discounts and commissions and
transfer taxes, if any.
1.4. Priority in Demand Registrations. If a registration
pursuant to Section 1.1 involves an underwritten offering, and the managing
underwriter (or, in the case of an offering which is not underwritten, a
nationally recognized investment banking firm) shall advise the Company in
writing (with a copy to each Person requesting registration of Registrable
Securities) that, in its opinion, the number of securities requested and
otherwise proposed to be included in such registration exceeds the number
which can be sold in such offering without materially and adversely
affecting the offering price, the Company will include in such registration
to the extent of the number which the Company is so advised can be sold in
such offering without such material adverse effect, first, the Registrable
Securities of all Stockholders (including the Requesting Party), on a pro
rata basis (based on the number of shares of Registrable Securities owned
by each such Stockholder), second, the securities, if any, being sold by
the Company, and third, the securities, if any, of any other
securitiesholder of the Company entitled to incidental registration rights
with respect thereto, subject to the limitations of Section 7.
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1.5. No Company or Other Stockholder Initiated
Registration. After receipt of notice of a requested registration pursuant
to Section 1.1, neither the Company nor any other Stockholder shall
initiate, without the consent of the Requesting Party, a registration of
any Company securities for its own account until 90 days after such
registration has been effected or such registration has been terminated.
2. Incidental Registrations. If the Company at any time
proposes to register any of its equity securities under the Securities Act
for its own account (other than pursuant to a registration on Form S-4 or
S-8 or any successor form) it shall give written notice thereof to each
Stockholder. If, within 20 days after the receipt of any such notice, any
Stockholder requests that the Company include all or any portion of the
Registrable Securities owned by such Stockholder in such registration,
then, subject to subsection (a) below, the Company will give prompt written
notice to all holders of Registrable Securities regarding such proposed
registration. Upon the written request of any such holder made within 20
days after the receipt of any such notice (which request shall specify the
number of Registrable Securities intended to be disposed of by such holder
and the intended method or methods of disposition thereof), the Company
will use its best efforts to effect the registration under the Securities
Act of such Registrable Securities on a pro rata basis (based on the number
of shares of Registrable Securities owned by each such requesting holder)
in accordance with such intended method or methods of disposition, provided
that:
(a) without the prior written consent of the Stockholders,
the Company shall not include any Registrable Securities of
holders of Registrable Securities other than the Stockholders in
such proposed registration if it believes in good faith that
inclusion of such securities would not be in the best interests of
the Company, provided that the Company will include in such
registration that number of Registrable Securities of the holders
of Registrable Securities that such managing underwriter and the
Company determine would not be adverse to the best interests of
the Company and provided, further, that the Company shall give the
holders of Registrable Securities prompt notice after any such
determination has been made (in lieu of the notice otherwise
required under the second sentence of this Section 2);
(b) if, at any time after giving written notice (pursuant
to this Section 2) of its intention to register equity securities
and prior to the effective date of the registration statement
filed in connection with such registration, the Company shall
determine for any reason not to register such equity securities,
the Company may, at its election, give written notice of such
determination to each holder of Registrable Securities and,
thereupon, shall not be obligated to register any Registrable
Securities in connection with such registration (but shall
nevertheless
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pay the Registration Expenses in connection therewith), without
prejudice, however, to the rights of the Qualified MCM
Stockholders and CPII, respectively, to request that a
registration be effected under Section 1.1; and
(c) if in connection with a registration pursuant to this
Section 2, the managing underwriter of such registration (or, in
the case of an offering that is not underwritten, a nationally
recognized investment banking firm) shall advise the Company in
writing (with a copy to each holder of Registrable Securities
requesting registration thereof) that, in its opinion, the number
of securities requested and otherwise proposed to be included in
such registration exceeds the number which can be sold in such
offering without materially and adversely affecting the offering
price, then in the case of any registration pursuant to this
Section 2, the Company will include in such registration to the
extent of the number which the Company is so advised can be sold
in such offering without such material adverse effect, first, the
securities, if any, being sold by the Company, second, the
Registrable Securities of the Stockholders, on a pro rata basis
(based on the number of shares of Registrable Securities owned by
each such Stockholder), third, the Registrable Securities of any
other holder, on a pro rata basis (based on the number of shares
of Registrable Securities owned by each such holder), and fourth,
the securities, if any, of any other securitiesholder of the
Company entitled to incidental registration rights with respect
thereto, subject to the limitations of Section 7.
Notwithstanding the foregoing, the holders of Registrable
Securities other than the Stockholders will not be entitled to participate
in any registration pursuant to this Section 2 to the extent that the
managing underwriter (or, in the case of an offering that is not
underwritten, a nationally recognized investment banker) shall determine in
good faith and in writing (with a copy to each affected Person requesting
registration of Registrable Securities) that the participation of any such
holder would adversely affect the marketability or offering price of the
securities being sold by the Company or any Stockholder in such
registration.
The Company will pay all Registration Expenses in
connection with each registration of Registrable Securities requested
pursuant to this Section 2, provided that each seller of Registrable
Securities shall pay all Registration Expenses to the extent required to be
paid by such seller under applicable law and all underwriting discounts and
commissions and transfer taxes, if any. No registration effected under this
Section 2 shall relieve the Company from its obligation to effect
registrations under Sections 1.1.
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3. Registration Procedures. If and whenever the Company is
required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Sections 1.1
and 2, the Company will promptly:
(a) prepare, and as soon as practicable, but in any event
within 60 days thereafter, file with the Commission, a
registration statement with respect to such Registrable
Securities, make all required filings with the NASD and use its
best efforts to cause such registration statement to become
effective as soon as practicable;
(b) prepare and promptly file with the Commission such
amendments and post-effective 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 so long as is required to comply with the provisions
of the Securities Act and to complete the disposition of all
securities covered by such registration statement in accordance
with the intended method or methods of disposition thereof, but in
no event for a period of more than six months after such
registration statement becomes effective;
(c) furnish copies of all documents proposed to be filed
with the Commission in connection with such registration to (i) in
the case of a registration pursuant to Section 1.1 or 2 in which
CPII is participating, counsel selected by CPII, and (ii) in the
case of a registration pursuant to Section 1.1 or 2 in which MCM
Holding Distributees are participating, counsel selected by the
holders of at least 51% of the Registrable Securities proposed to
be sold by such MCM Holding Distributees in connection with such
registration (such holders, the "MAJORITY HOLDERS"), and such
documents shall be subject to the review of such counsel and CPII
and/or the Majority Holders, as the case may be, and the Company
shall not file any registration statement or amendment or
post-effective amendment or supplement to such registration
statement or the prospectus used in connection therewith to which
either such counsel or CPII or the Majority Holders, as the case
may be, shall have reasonably objected in writing on the grounds
that such amendment or supplement does not comply (explaining why)
in all material respects with the requirements of the Securities
Act or of the rules or regulations thereunder;
(d) furnish to each seller of Registrable Securities,
without charge, such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits and documents filed
therewith) and such number of copies of the prospectus included in
such registration statement (including each preliminary prospectus
and any
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summary prospectus) and any other prospectus filed under Rule 424
under the Securities Act, in conformity with the requirements of
the Securities Act, and such other documents, as such seller may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller in accordance with the
intended method or methods of disposition thereof;
(e) use its best efforts to register or qualify such
Registrable Securities covered by such registration statement
under the securities or blue sky laws of such jurisdictions as
each seller shall reasonably request, and do any and all other
acts and things which may be necessary or advisable to enable such
seller to consummate the disposition of such Registrable
Securities in such jurisdictions in accordance with the intended
method or methods of disposition thereof, provided that the
Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, subject itself to
taxation in any jurisdiction wherein it is not so subject, or take
any action which would subject it to general service of process in
any jurisdiction wherein it is not so subject;
(f) use its best efforts to cause all Registrable
Securities covered by such registration statement to be registered
with or approved by such other governmental agencies, authorities
or self-regulatory bodies as may be necessary by virtue of the
business and operations of the Company to enable the seller or
sellers thereof to consummate the disposition of such Registrable
Securities in accordance with the intended method or methods of
disposition thereof;
(g) furnish to each seller of Registrable Securities a
signed counterpart, addressed to the sellers, of
(i) an opinion of outside counsel for the Company
experienced in securities law matters, dated the effective
date of the registration statement (and, if such
registration includes an underwritten public offering, the
date of the closing under the underwriting agreement), and
(ii) a "comfort" letter (unless the registration is
pursuant to Section 2 and such a letter is not otherwise
being furnished to the Company), dated the effective date
of such registration statement (and if such registration
includes an underwritten public offering, dated the date
of the closing under the underwriting agreement), signed
by the independent public accountants who have issued an
audit report on the Company's financial statements
included in the registration statement,
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covering such matters as are customarily covered in opinions of
issuer's counsel and in accountants' letters delivered to the
underwriters in underwritten public offerings of securities and
such other matters as any Stockholder participating in such
registration may reasonably request;
(h) notify each seller of any Registrable Securities
covered by such registration statement at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event or existence of any
fact as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then
existing, and, as promptly as is practicable, prepare and furnish
to such seller a reasonable number of copies of a supplement to or
an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
in light of the circumstances then existing;
(i) otherwise comply with all applicable rules and
regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement
of the Company (in form complying with the provisions of Rule 158
under the Securities Act) covering the period of at least 12
months, but not more than 18 months, beginning with the first
month after the effective date of such registration statement;
(j) notify each seller of any Registrable Securities
covered by such registration statement (i) when the prospectus or
any prospectus supplement or post-effective amendment has been
filed, and, with respect to such registration statement or any
post-effective amendment, when the same has become effective, (ii)
of any request by the Commission for amendments or supplements to
such registration statement or to amend or to supplement such
prospectus or for additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of
such registration statement or the initiation of any proceedings
for that purpose and (iv) of the suspension of the qualification
of such securities for offering or sale in any jurisdiction, or of
the institution of any proceedings for any of such purposes;
(k) use every reasonable effort to obtain the lifting of
any stop order that might be issued suspending the effectiveness
of such registration statement at the earliest possible moment;
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(l) use its best efforts (i) (A) to list such Registrable
Securities on any securities exchange on which the equity
securities of the Company are then listed or, if no such equity
securities are then listed, on an exchange selected by the
Company, if such listing is then permitted under the rules of such
exchange, or (B) if such listing is not practicable, to secure
designation of such securities as a NASDAQ "national market system
security" within the meaning of Rule 11Aa2-1 under the Exchange
Act or, failing that, to secure NASDAQ authorization for such
Registrable Securities, and, without limiting the foregoing, to
arrange for at least two market makers to register as such with
respect to such Registrable Securities with the NASD, and (ii) to
provide a transfer agent and registrar for such Registrable
Securities not later than the effective date of such registration
statement and to instruct such transfer agent (A) to release any
stop transfer order with respect to the certificates with respect
to the Registrable Securities being sold and (B) to furnish
certificates without restrictive legends representing ownership of
the shares being sold, in such denominations requested by the
sellers of the Registrable Securities or the lead underwriter;
(m) enter into such agreements and take such other actions
as the sellers of Registrable Securities or the underwriters
reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities, including, without
limitation, preparing for, and participating in, such number of
"road shows" and all such other customary selling efforts as the
underwriters reasonably request in order to expedite or facilitate
such disposition;
(n) furnish to any holder of such Registrable Securities
such information and assistance as such holder may reasonably
request in connection with any "due diligence" effort which such
seller deems appropriate; and
(o) use its best efforts to take all other steps necessary
to effect the registration of such Registrable Securities
contemplated hereby.
As a condition to its registration of Registrable
Securities of any prospective seller, the Company may require such seller
of any Registrable Securities as to which any registration is being
effected to furnish to the Company such information regarding such seller,
its ownership of Registrable Securities and the disposition of such
Registrable Securities as the Company may from time to time reasonably
request in writing and as shall be required by law in connection therewith.
Each such holder agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously
furnished to the Company by such holder not materially misleading.
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The Company agrees not to file or make any amendment to
any registration statement with respect to any Registrable Securities, or
any amendment of or supplement to the prospectus used in connection
therewith, which refers to any seller of any Registrable Securities covered
thereby by name, or otherwise identifies such seller as the holder of any
Registrable Securities, without the consent of such seller, such consent
not to be unreasonably withheld or delayed, unless such disclosure is
required by law.
By acquisition of Registrable Securities, each holder of
such Registrable Securities shall be deemed to have agreed that upon
receipt of any notice from the Company of the happening of any event of the
kind described in Section 3(h), such holder will promptly discontinue such
holder's disposition of Registrable Securities pursuant to the registration
statement covering such Registrable Securities until such holder's receipt
of the copies of the supplemented or amended prospectus contemplated by
Section 3(h). If so directed by the Company, each holder of Registrable
Securities will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, in such holder's possession of
the prospectus covering such Registrable Securities at the time of receipt
of such notice. In the event that the Company shall give any such notice,
the period mentioned in Section 3(b) shall be extended by the number of
days during the period from and including the date of the giving of such
notice to and including the date when each seller of any Registrable
Securities covered by such registration statement shall have received the
copies of the supplemented or amended prospectus contemplated by Section
3(h).
4. Underwritten Offerings.
4.1. Underwriting Agreement. If requested by the
underwriters for any underwritten offering pursuant to a registration
requested under Section 1.1 or 2, the Company shall enter into an
underwriting agreement with the underwriters for such offering, such
agreement to be reasonably satisfactory in substance and form to the
underwriters and to CPII (unless CPII is not participating in such
registration) and to the Majority Holders (unless the MCM Holding
Distributees are not participating in such registration). Any such
underwriting agreement shall contain such representations and warranties by
the Company and such other terms and provisions as are customarily
contained in agreements of this type, including, without limitation,
indemnities to the effect and to the extent provided in Section 9. The
holders of Registrable Securities to be distributed by such underwriter
shall be parties to such underwriting agreement and may, at their option,
require that any or all of the representations and warranties by, and the
agreements on the part of, the Company to and for the benefit of such
underwriters be made to and for the benefit of such holders of Registrable
Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement shall
also be conditions precedent to the obligations of such holders of
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Registrable Securities. No underwriting agreement (or other agreement in
connection with such offering) shall require any Stockholder, in its
capacity as stockholder and/or controlling Person, to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
such holder, the ownership of such holder's Registrable Securities and such
holder's intended method or methods of disposition and any other
representation required by law or to furnish any indemnity to any Person
which is broader than the indemnity furnished by such holder pursuant to
Section 9.2.
4.2. Selection of Underwriters. If the Company at any time
proposes to register any of its securities under the Securities Act for
sale for its own account pursuant to an underwritten offering, the Company
will have the right to select the managing underwriter (which shall be of
nationally recognized standing) to administer the offering, but if CPII or
the MCM Holding Distributees at such time own at least 20% of the number of
shares of Common Stock they own on the date hereof, only with the approval
thereof, such approval not to be unreasonably withheld. Notwithstanding the
foregoing sentence, whenever a registration requested pursuant to Section
1.1 is for an underwritten offering, the Requesting Party will have the
right to select the managing underwriter (which shall be of nationally
recognized standing) to administer the offering, but only with the approval
of the Company, such approval not to be unreasonably withheld.
5. Holdback Agreements. (a) If and whenever the Company
proposes to register any of its equity securities under the Securities Act
for its own account (other than on Form S-4 or S-8 or any successor form)
or is required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act pursuant to Section 1.1 or
2, each holder of Registrable Securities agrees by acquisition of such
Registrable Securities not to request registration under Section 1.1 of any
Registrable Securities within seven days prior to and 90 days (unless
advised in writing by the managing underwriter that a longer period, not to
exceed 180 days, is required, or such shorter period as the managing
underwriter for any underwritten offering may agree) after the effective
date of the registration statement relating to such registration, except as
part of such registration.
(b) The Company agrees not to effect any public sale or
distribution of its equity securities or securities convertible into or
exchangeable or exercisable for any of such securities within seven days
prior to and 90 days (unless advised in writing by the managing underwriter
that a longer period, not to exceed 180 days, is required, or such shorter
period as the managing underwriter for any underwritten offering may agree)
after the effective date of any registration statement filed pursuant to
Section 1.1 (except as part of such registration or pursuant to a
registration on Form S-4 or S-8 or any successor form). In addition, upon
the request of the managing underwriter, the Company shall use
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its best efforts to cause each holder of its equity securities (or any
securities convertible into or exchangeable or exercisable for any of such
securities to the extent the underlying documents relating to such
securities do not already so provide), whether outstanding on the date of
this Agreement or issued at any time after the date of this Agreement
(other than any such securities acquired in a public offering), to agree
not to effect any such public sale or distribution of such securities
during such period, except as part of any such registration if permitted,
and to cause each such holder to enter into a similar agreement to such
effect with the Company.
6. Preparation; Reasonable Investigation. In connection
with the preparation and filing of each registration statement registering
Registrable Securities under the Securities Act, the Company will give the
holders of such Registrable Securities so to be registered and their
underwriters, if any, and their respective counsel and accountants the
opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the Commission,
and each amendment thereof or supplement thereto, and will give each of
them such access to the financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries and such
opportunities to discuss the business of the Company with its officers and
the independent public accountants who have issued audit reports on its
financial statements as shall be reasonably requested by such holders in
connection with such registration statement.
7. No Grant of Future Registration Rights. The Company
shall not grant any other demand or incidental registration rights to any
other Person without the prior written consent of CPII and the MCM Holding
Distributees Majority, so long as CPII and the MCM Holding Distributees,
respectively, continue to own at least 10% of the number of shares of
Common Stock owned thereby, respectively, on the date hereof. During the
term of this Agreement, the Company shall not grant to any third party
incidental registration rights that are of the same or a higher priority to
the rights granted to the holders of Registrable Securities under Section 2
hereof.
8. [Reserved]
9. Indemnification.
9.1. Indemnification by the Company. In the event of any
registration of any Registrable Securities pursuant to this Agreement
(including, without limitation, any registration of Registrable Securities
as part of any IPO by the Company closing on or after the date of this
Agreement), the Company agrees to indemnify, defend and hold harmless (a)
each seller of such Registrable Securities, (b) the directors, members,
stockholders, officers, partners, employees, agents and Affiliates of such
seller, (c) each
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Person who participates as an underwriter in the offering or sale of such
securities and (d) each person, if any, who controls (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) any of
the foregoing against any and all losses, claims, damages, expenses or
other liabilities (or actions or proceedings in respect thereof), jointly
or severally, directly or indirectly, based upon or arising out of (i) any
untrue statement or alleged untrue statement of a fact contained in any
registration statement under which such Registrable Securities were
registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein or used in connection
with the offering of securities covered thereby, or any amendment or
supplement thereto, or (ii) any omission or alleged omission to state a
fact required to be stated therein or necessary to make the statements
therein not misleading; and the Company will reimburse each such
indemnified party for any legal or any other expenses reasonably incurred
by them in connection with enforcing its rights hereunder or under the
underwriting agreement entered into in connection with such offering or
investigating, preparing, pursuing or defending any such loss, claim,
damage, liability, action or proceeding, except insofar as any such loss,
claim, damage, liability, action, proceeding or expense arises out of or is
based upon an untrue statement or omission made in such registration
statement, any such preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such seller expressly for
use in the preparation thereof. Such indemnity shall remain in full force
and effect, regardless of any investigation made by such indemnified party
and shall survive the transfer of such Registrable Securities by such
seller. If the Company is entitled to, and does, assume the defense of the
related action or proceedings provided herein, then the indemnity agreement
contained in this Section 9.1 shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability, action or proceeding if such
settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld or delayed). The Company shall also
indemnify any underwriters of the Registrable Securities, their officers,
directors and employees, and each person who controls (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) to
the same extent as provided above with respect to indemnification of the
seller of Registrable Securities.
9.2. Indemnification by the Sellers. The Company may
require, as a condition to including any Registrable Securities in any
registration statement filed pursuant to Section 1.1 or 2 that the Company
shall have received an undertaking reasonably satisfactory to it from each
of the prospective sellers of such Registrable Securities to indemnify and
hold harmless, severally, not jointly, in the same manner and to the same
extent as set forth in Section 9.1, the Company, its directors, officers,
employees, agents and each person, if any, who controls (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) the
Company, but only with respect to any written information furnished to the
Company by such seller expressly for use in the
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preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. (The Company and
the holders of the Registrable Securities hereby acknowledge and agree
that, unless otherwise expressly agreed to in writing by such holders, the
only information furnished or to be furnished to the Company for use in any
registration statement or prospectus relating to the Registrable Securities
or in any amendment, supplement or preliminary materials associated
therewith are statements specifically relating to (a) transactions between
such holder and its Affiliates, on the one hand, and the Company, on the
other hand, (b) the beneficial ownership of shares of Common Stock by such
holder and its Affiliates and (c) the name and address of such holder. If
any additional information about such holder or the plan of distribution
(other than for an underwritten offering) is required by law to be
disclosed in any such document, then such holder shall not unreasonably
withhold its agreement referred to in the immediately preceding sentence of
this Section 9.2.) Such indemnity shall remain in full force and effect,
regardless of any investigation made by or on behalf of the Company or any
such director, officer or controlling Person and shall survive the transfer
of such Registrable Securities by such seller. The indemnity agreement
contained in this Section 9.2 shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability, action or proceeding if such
settlement is effected without the consent of such seller (which consent
shall not be unreasonably withheld or delayed). The indemnity provided by
each seller of Registrable Securities under this Section 9.2 shall be
limited in amount to the net amount of proceeds actually received by such
seller from the sale of Registrable Securities pursuant to such
registration statement giving rise to such liability.
9.3. Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding paragraphs of this Section
9, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the indemnifying
party of the commencement of such action or proceeding, provided that the
failure of any indemnified party to give notice as provided herein shall
not relieve the indemnifying party of its obligations under the preceding
paragraphs of this Section 9, except to the extent that the indemnifying
party is materially prejudiced by such failure to give notice. In case any
such action is brought against an indemnified party, the indemnifying party
will be entitled to participate therein and to assume the defense thereof,
jointly with any other indemnifying party similarly notified, to the extent
that it may wish, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party for any legal or other
expenses subsequently incurred by the latter in connection with the defense
thereof except for the reasonable fees and expenses of any counsel retained
by such indemnified party to monitor such action or proceeding.
Notwithstanding the foregoing, if such indemnified party reasonably
determines, based upon advice of independent counsel, that
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either a conflict of interest may exist between the indemnified party and
the indemnifying party with respect to such action and that it is advisable
for such indemnified party to be represented by separate counsel or that
there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party, such
indemnified party may retain other counsel, reasonably satisfactory to the
indemnifying party, to represent such indemnified party, and the
indemnifying party shall pay all reasonable fees and expenses of such
counsel. No indemnifying party, in the defense of any such claim or
litigation, shall, except with the consent of such indemnified party, which
consent shall not be unreasonably withheld, 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 of such claim
or litigation. The rights accorded to any indemnified party hereunder shall
be in addition to any rights that such indemnified party may have at common
law, by separate agreement or otherwise.
9.4. Other Indemnification. Indemnification similar to
that specified in the preceding paragraphs of this Section 9 (with
appropriate modifications) shall be given by the Company and each seller of
Registrable Securities with respect to any required registration (other
than under the Securities Act) or other qualification of such Registrable
Securities under any federal or state law or regulation of any governmental
authority.
9.5. Indemnification Payments. Any indemnification
required to be made by an indemnifying party pursuant to this Section 9
shall be made by periodic payments to the indemnified party during the
course of the action or proceeding, as and when bills are received by such
indemnifying party with respect to an indemnifiable loss, claim, damage,
liability or expense incurred by such indemnified party.
9.6. Other Remedies. If for any reason the foregoing
indemnity is unavailable, or is insufficient to hold harmless an
indemnified party, other than by reason of the exceptions provided therein,
then the indemnifying party shall contribute to the amount paid or payable
by the indemnified party as a result of such losses, claims, damages,
liabilities, actions, proceedings or expenses in such proportion as is
appropriate to reflect the relative benefits to and faults of the
indemnifying party on the one hand and the indemnified party on the other
in connection with the offering of Registrable Securities and the
statements or omissions or alleged statements or omissions which resulted
in such loss, claim, damage, liability, action, proceeding or expense, as
well as any other relevant equitable considerations. The relative fault of
the indemnifying party and of the indemnified party shall be determined by
reference to, among other things, whether the untrue statement of a
material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent
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such statements or omissions. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. No party shall be liable for
contribution under this Section 9.6 except to the extent as such party
would have been liable to indemnify under this Section 9 if such
indemnification were enforceable under applicable law.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 9.6 were determined by
pro rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph.
10. Representations and Warranties. Each Stockholder,
severally and not jointly, represents and warrants to the Company and each
other Stockholder that:
(i) such Stockholder has the power, authority and capacity
(or, in the case of any Stockholder that is a corporation or limited
partnership, all corporate or limited partnership power and authority, as
the case may be) to execute, deliver and perform this Agreement;
(ii) in the case of a Stockholder that is a corporation or
limited partnership, the execution, delivery and performance of this
Agreement by such Stockholder has been duly and validly authorized and
approved by all necessary corporate or limited partnership action, as the
case may be;
(iii) this Agreement has been duly and validly executed
and delivered by such Stockholder and constitutes a valid and legally
binding obligation of such Stockholder, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting or relating to creditors' rights generally and
general principles of equity; and
(iv) the execution, delivery and performance of this
Agreement by such Stockholder does not and will not violate the terms of or
result in the acceleration of any obligation under (A) any material
contract, commitment or other material instrument to which such Stockholder
is a party or by which such Stockholder is bound or (B) in the case of a
Stockholder that is a corporation or limited partnership, the certificate
of incorporation, certificate of limited partnership, by-laws or limited
partnership agreement, as the case may be.
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11. Definitions. For purposes of this Agreement, the
following terms shall have the following respective meanings:
Affiliate: (i) with respect to any Person, a Person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person, and (ii) with
respect to any natural Person, (A) the spouse, parents and direct
descendants of such Person, (B) the estate, testamentary trust, trustees,
executors, administrators, legatees or testamentary beneficiaries of such
Person, and (C) any trust established by such Person for the exclusive
benefit of any of the foregoing Persons.
Affiliated Stockholder: with respect to CPII, MCM Holding,
and the MCM Holding Distributees, each of their respective Affiliates, in
each case, if and so long as it owns any Registrable Securities and has
agreed in writing to be bound by the terms and conditions of this
Agreement, a copy of which agreement shall have been delivered to the
Company.
Board: the board of directors of the Company.
Commission: the Securities and Exchange Commission.
Common Stock: the Common Stock of the Company, par value
$.01 per share, and any securities into which such Common Stock shall have
been changed or any securities resulting from any reclassification of such
Common Stock.
Exchange Act: the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations
thereunder which shall be in effect at the time.
IPO: the initial public offering of Common Stock.
Majority Holders: as defined in Section 3(c).
MCM Holding Distributees Majority: at any time, the owners
of at least 51% of the Registrable Securities then owned by the MCM Holding
Distributees.
NASD: National Association of Securities Dealers, Inc.
NASDAQ: the Nasdaq National Market.
Permitted Transferee: as defined in Section 12.2.
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Person: an individual, corporation, partnership, limited
liability company, joint venture, association, trust or other entity or
organization, including a government or political subdivision or an agency
or instrumentality thereof.
Registrable Securities: the shares of Common Stock
beneficially owned (within the meaning of Rule 13d-3 of the Exchange Act)
by CPII, MCM Holding, the MCM Holding Distributees or the Permitted
Transferees. As to any particular shares of Common Stock, such securities
shall cease to be Registrable Securities when (i) a registration statement
with respect to the sale of such securities shall have become effective
under the Securities Act and such securities shall have been disposed of in
accordance with such registration statement, (ii) they shall have been sold
to the public pursuant to Rule 144 under the Securities Act, (iii) they
shall have been otherwise transferred other than to a Permitted Transferee
and subsequent disposition of them shall not require registration or
qualification of them under the Securities Act or any similar state law
then in force or (iv) they shall have ceased to be outstanding.
Registration Expenses: all expenses incident to the
Company's performance of or compliance with any registration pursuant to
this Agreement, including, without limitation, (i) registration, filing and
NASD fees, (ii) fees and expenses of complying with securities or blue sky
laws, (iii) fees and expenses associated with listing securities on an
exchange or NASDAQ, (iv) word processing, duplicating and printing
expenses, (v) messenger and delivery expenses, (vi) transfer agents',
trustees', depositories', registrars' and fiscal agents' fees, (vii) fees
and disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or "cold comfort"
letters, (viii) reasonable fees and disbursements of any one counsel
retained by the sellers of Registrable Securities, which counsel shall be
designated in the manner specified in Section 3 and (ix) any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, but excluding underwriting discounts and commissions and
transfer taxes, if any.
Securities Act: the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations thereunder
which shall be in effect at the time.
Stockholders: (i) CPII, MCM Holding and each MCM Holding
Distributee, in each case, if and so long as it owns any Registrable
Securities and (ii) each Affiliated Stockholder.
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12. Miscellaneous.
12.1. Rule 144, etc. If the Company shall have filed a
registration statement pursuant to the requirements of Section 12 of the
Exchange Act or a registration statement pursuant to the requirements of
the Securities Act relating to any class of securities, the Company 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 Commission
thereunder, and will take such further action as any holder of Registrable
Securities may reasonably request, all to the extent required from time to
time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 under the Securities Act, as such rule
may be amended from time to time or (b) any successor rule or regulation
hereafter adopted by the Commission. Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
12.2. Successors, Assigns and Transferees. This Agreement
shall be binding upon and insure to the benefit of the parties hereto and
their respective successors and permitted assigns under this Section 12.2.
Provided that an express assignment shall have been made, a copy of which
shall have been delivered to the Company, the provisions of this Agreement
which are for the benefit of a holder of Registrable Securities shall be
for the benefit of and enforceable by any subsequent holder of any
Registrable Securities ("PERMITTED TRANSFEREES"), subject to the provisions
respecting the minimum numbers or percentages of shares of Registrable
Securities required in order to be entitled to certain rights, or to take
certain actions, contained herein.
12.3. Amendment and Modification. This Agreement may be
amended, modified or supplemented by the Company with the written consent
of CPII, the MCM Holding Distributees Majority and a majority (by number of
shares) of any other holder of Registrable Securities whose interests would
be adversely affected by such amendment in a manner different from the
effect thereof on other Registered Securities, provided that all
Stockholders shall be notified of such amendment, modification or
supplement.
12.4. Governing Law. This Agreement and the rights and
obligations of the parties hereunder and the persons subject hereto shall
be governed by, and construed and interpreted in accordance with, the law
of the State of New York, without giving effect to the choice of law
principles thereof.
12.5. Invalidity of Provision. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction
shall not affect the validity or enforceability
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of the remainder of this Agreement in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any other
jurisdiction.
12.6. Notices. All notices, requests, demands, letters,
waivers and other communications required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been duly
given if (a) delivered personally, (b) mailed, certified or registered mail
with postage prepaid, (c) sent by next-day or overnight mail or delivery or
(d) sent by fax, as follows:
(i) If to the Company, to it at:
MCM Capital Group, Inc.
βββ ββββ βββββ ββββββ
ββββββββββ, ββββββ βββββ-ββββ
Attention: Chief Executive Officer
Telecopier No.: (βββ) βββ-ββββ
(ii) If to CPII, to it at:
C.P. International Investments Limited
βββ βββββ, βββββ β, βββββββ βββββ
ββ. Stephen's Green
ββββββ β, βββββββ
Attention: Managing Director
Telecopier No.: (011) (βββ) βββ-ββββ
with a copy to:
Consolidated Press Holdings Limited
ββ-ββ ββββ ββββββ
ββββββ, βββ ββββ
βββββββββ
Attention: Corporate Secretary
Telecopier No.: (011) (61) (β) ββββ-ββββ
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and a copy to
Debevoise & ββββββββ
βββ βββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Attention: ββββ β. βββββ, ββ.
Telecopier No.: (βββ) βββ-ββββ
(iii) If to MCM Holding or any MCM Holding Distributee,
to it at:
c/o Triarc Companies, Inc.
βββ ββββ ββββββ
βββ ββββ, ββ βββββ
Attention: General Counsel
Telecopier No.: (βββ) βββ-ββββ
with a copy to:
ββββ, Weiss, Rifkind, βββββββ & ββββββββ
ββββ ββββββ ββ βββ ββββββββ
βββ ββββ, ββ βββββ
Attention: βββββ ββββββ, Esq. And
ββββ ββββββββ, Esq.
Telecopier No.: (βββ) βββ-ββββ
or to such other person or address as any party shall specify by notice in
writing to the Company. All such notices, requests, demands, letters,
waivers and other communications shall be deemed to have been received (w)
if by personal delivery on the day after such delivery, (x) if by certified
or registered mail, on the eighth business day after the mailing thereof,
(y) if by next-day or overnight mail or delivery, on the day delivered or
(z) if by fax, on the next day following the day on which such fax was
sent, provided that a copy is also sent by certified or registered mail.
12.7. Headings; Execution in Counterparts. The headings
and captions contained herein are for convenience and shall not control or
affect the meaning or construction of any provision hereof. This Agreement
may be executed in any number of counterparts, each of which shall be
deemed to be an original and which together shall constitute one and the
same instrument.
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12.8. Injunctive Relief. Each of the parties recognizes
and agrees that money damages may be insufficient and, therefore, in the
event of a breach of any provision of this Agreement the aggrieved party
may elect to institute and prosecute proceedings in any court of competent
jurisdiction to enforce specific performance or to enjoin the continuing
breach of this Agreement. Such remedies shall, however, be cumulative and
not exclusive, and shall be in addition to any other remedy which such
party may have.
12.9. Term. This Agreement shall be effective as of the
date hereof and shall continue in effect thereafter until the earlier of
(a) its termination by the consent of the parties hereto or their
respective successors in interest and (b) the date on which no Registrable
Securities remain outstanding.
12.10. Further Assurances. Subject to the specific terms
of this Agreement, each of the Company and the Stockholders shall make,
execute, acknowledge and deliver such other instruments and documents, and
take all such other actions, as may be reasonably required in order to
effectuate the purposes of this Agreement and to consummate the
transactions contemplated hereby.
12.11. Entire Agreement. This Agreement is intended by the
parties hereto as a final expression of their agreement and intended to be
a complete and exclusive statement of their agreement and understanding in
respect of the subject matter contained herein. This Agreement supersedes
all prior agreements and understandings between the parties with respect to
such subject matter.
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IN WITNESS WHEREOF this Agreement has been signed by each
of the parties hereto, and shall be effective as of the date first above
written.
MCM CAPITAL GROUP, INC.
By:
-----------------------------------------------
Name:
Title:
MCM HOLDING COMPANY LLC
By:
-----------------------------------------------
Name:
Title:
C.P. INTERNATIONAL INVESTMENTS LIMITED
By:
-----------------------------------------------
Name:
Title:
27
SCHEDULE A
MCM HOLDING DISTRIBUTEES