Exhibit 10.1
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
by and among
GENTEK INC.
and
THE HOLDERS NAMED HEREIN
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Dated as of November 10, 2003
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Table of Contents
Page
1. Definitions..........................................................1
2. Initial Registration Under the Securities Act........................4
(a) Registration................................................4
3. Securities Act Registration on Request...............................4
(a) Request.....................................................4
(b) Shelf Registration..........................................5
4. Piggyback Registration...............................................6
5. Expenses.............................................................7
6. General..............................................................8
(a) Registration of Other Securities............................8
(b) Registration Statement Form.................................8
(c) Effective Registration Statement............................8
(d) Selection of Underwriters...................................9
(e) Priority in Requested Registration..........................9
(f) Registration Procedures.....................................9
7. Underwritten Offerings..............................................14
(a) Requested Underwritten Offerings...........................14
(b) Piggyback Underwritten Offerings: Priority.................14
(c) Holders of Registrable Common Stock to be Parties to
Underwriting Agreement.................................15
(d) Holdback Agreements........................................15
8. Preparation: Reasonable Investigation...............................16
(a) Registration Statements....................................16
(b) Confidentiality............................................17
9. Postponements.......................................................17
10. Indemnification.....................................................18
(a) Indemnification by the Company.............................18
(b) Indemnification by the Offerors and Sellers................19
(c) Notices of Losses, etc.....................................20
(d) Contribution...............................................20
(e) Indemnification Payments...................................21
11. Registration Rights to Others.......................................21
12. Adjustments Affecting Registrable Common Stock......................21
13. Rule 144............................................................21
14. Amendments and Waivers..............................................21
15. Nominees for Beneficial Owners......................................22
16. Assignment..........................................................22
17. Calculation of Percentage or Number of Shares of
Registrable Common Stock........................................23
18. Notice of Registrable Common Stock Holdings.........................23
19. Termination of Registration Rights..................................23
20. Applicability of Charter and By-laws................................23
21. Miscellaneous.......................................................23
(a) Further Assurances.........................................23
(b) Headings...................................................23
(c) Remedies...................................................23
(d) Entire Agreement...........................................23
(e) Notices....................................................24
(f) Governing Law..............................................24
(g) Severability...............................................24
(h) Counterparts...............................................24
SCHEDULES:
SCHEDULE A - HOLDERS OF REGISTRABLE COMMON STOCK
SCHEDULE B - NOTICES
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of November 10, 2003
(this "Agreement"), by and among GenTek Inc., a Delaware corporation (the
"Company"), and the holders of Registrable Common Stock (as hereinafter
defined) who are listed on Schedule A to this Agreement and who execute a
counterpart of this Agreement not later than November 21, 2003 (the "Original
Holders") and such other Persons who may become a party hereto pursuant to
Section 16 hereof (together with the Original Holders, the "Holders").
This Agreement is being entered into in connection with the
acquisition of Common Stock (as hereinafter defined) by the "Original Holders"
pursuant to the Plan (as hereinafter defined). Upon the issuance of the Common
Stock pursuant to the Plan, each Original Holder will own the number of shares
of Common Stock specified with respect to such Original Holder in Schedule A
hereto.
As provided for in the Plan, the Company is herewith
agreeing to register Registrable Common Stock (as hereinafter defined) under
the Securities Act (as hereinafter defined) and to take certain other actions
with respect to the Registrable Common Stock, subject to the terms and
conditions of this Agreement.
In consideration of the premises and the mutual agreements
set forth herein, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized terms
used herein and in the recitals above shall have the following meanings:
"Affiliate" of a Person means any Person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by,
or is under common control with, such other Person. For purposes of this
definition, "control" means the ability of one Person to direct the management
and policies of another Person.
"Agreement" has the meaning set forth in the preamble
hereto.
"Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to be closed.
"Commission" means the U.S. Securities and Exchange
Commission.
"Common Stock" means the shares of common stock, without par
value, of the Company, as adjusted to reflect any merger, consolidation,
recapitalization, reclassification, split-up, stock dividend, rights offering
or reverse stock split made, declared or effected with respect to the Common
Stock.
"Company" has the meaning set forth in the preamble hereto.
"Company Indemnitee" has the meaning set forth in Section
10(a) hereof.
"Effective Date" means the effective date of the Plan
pursuant to the terms thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, or any similar or successor
statute.
"Expenses" means all expenses incident to the Company's
performance of or compliance with its obligations under this Agreement,
including, without limitation, all registration, filing, listing, stock
exchange and NASD fees and expenses (including, without limitation, all fees
and expenses of any "qualified independent underwriter" required by the rules
of the NASD), all fees and expenses of complying with state securities or blue
sky laws (including the reasonable fees, disbursements and other charges of
counsel for the underwriters in connection with blue sky filings), all word
processing, duplicating and printing expenses, messenger, telephone and
delivery expenses, all rating agency fees, the fees, disbursements and other
charges of counsel for the Company and of its independent public accountants,
including the expenses incurred in connection with "cold comfort" letters
required by or incident to such performance and compliance, the reasonable
fees, disbursements and other charges of one firm of counsel (per registration
statement prepared in accordance with the terms hereof and which shall in no
event, except as otherwise provided below, include the fees of accountants,
experts or other agents acting on behalf of the holders) to the holders of
Registrable Common Stock selling shares of such stock under such registration
statement pursuant to Section 2, Section 3(a), Section 3(b) or Section 4
hereof (selected by the Holders holding a majority of the shares of
Registrable Common Stock covered by such registration), the fees and expenses
of any special experts retained by the Company in connection with such
registration, and the fees and expenses of other persons retained by the
Company, but excluding underwriting discounts and commissions and applicable
transfer taxes in respect of shares of Registrable Common Stock covered by
such registration, if any, which discounts, commissions and transfer taxes
shall be borne by the seller or sellers of Registrable Common Stock in all
cases; provided, that, if the Company shall, in accordance with Section 4 or
Section 9 hereof, not register any securities with respect to which it had
given written notice of its intention to register to holders of Registrable
Common Stock or in respect of which the Company received an Initiating
Request, notwithstanding anything to the contrary in the foregoing, all
reasonable documented out-of-pocket expenses incurred by Requesting Holders in
connection with such registration (other than the reasonable fees,
disbursements and other charges of counsel other than the one firm of counsel
referred to above), if any, shall be deemed to be Expenses.
"Holders" has the meaning set forth in the preamble hereto.
"Holder Indemnitee" has the meaning set forth in Section
10(b) hereof.
"Initial Registration Period" has the meaning set forth in
Section 2(a) hereof.
"Initial Registration Statement" has the meaning set forth
in Section 2(a) hereof.
"Initiating Request" has the meaning set forth in Section
3(a) hereof.
"Loss" and "Losses" have the meanings set forth in Section
10(a) hereof.
"NASD" means the National Association of Securities Dealers,
Inc.
"NASDAQ" means the National Association of Securities
Dealers, Inc. Automated Quotation System.
"Offering Documents" has the meaning set forth in Section
10(a) hereof.
"Original Holders" has the meaning set forth in the preamble
hereto.
"Person" means any individual, corporation, limited
liability company, partnership, firm, joint venture, association, joint stock
company, trust, unincorporated organization, governmental or regulatory body
or subdivision thereof or other entity.
"Piggyback Requesting Holder" has the meaning set forth in
Section 4 hereof.
"Plan" means the Plan of Reorganization under Chapter 11 of
the United States Bankruptcy Code for GenTek Inc. and certain of its domestic
subsidiaries, as the same may be amended, modified or supplemented from time
to time in accordance with the terms thereof.
"Public Offering" means a public offering and sale of Common
Stock pursuant to an effective registration statement under the Securities
Act.
"Registrable Common Stock" means any of the Common Stock
issued pursuant to the Plan and owned by the Holders from time to time,
including shares of Common Stock acquired by a Holder in privately negotiated
transactions subsequent to the Effective Date, but excluding shares of Common
Stock acquired by a Holder subsequent to the Effective Date in transactions
effected on a national securities exchange or in the over-the-counter market,
provided, however, that a share of Common Stock will cease to be Registrable
Common Stock after it has been sold under a registration statement effected
pursuant hereto or pursuant to Rule 144 promulgated under the Securities Act.
"Requesting Holders" means one or more Holders which,
together with their Affiliates, collectively beneficially own Registrable
Common Stock representing at least 12.5% of the shares of Common Stock issued
pursuant to the Plan.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations thereunder, or any similar or successor
statute.
"Selling Holders" means the holders of Registrable Common
Stock that have requested that some or all of their shares be registered
pursuant hereto.
"Shelf Registration" has the meaning set forth in Section
3(b) hereof.
"Shelf Registration Statement" has the meaning set forth in
Section 3(b) hereof.
"Shelf Request Date" has the meaning set forth in Section
3(b) hereof.
"Transfer" means any transfer, sale, assignment, pledge,
hypothecation or other disposition of any interest. "Transferor" and
"Transferee" have correlative meanings.
2. Initial Registration Under the Securities Act.
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(a) Registration. The Company shall use its reasonable best
efforts to file with the Commission, as promptly as practicable (but in no
event more than 90 days) after the Effective Date, and have declared effective
as promptly as practicable (but in no event later than 180 days after the
Effective Date if no review is undertaken by the Staff of the Commission, or
210 days after the Effective Date if such a review is undertaken) a shelf
registration statement on Form S-1 pursuant to Rule 415 promulgated under the
Securities Act (the "Initial Registration Statement") providing for the sale
by the Holders of all of the Registrable Common Stock. Subject to Section
9(b), the Company agrees to use its reasonable best efforts to keep the
Initial Registration Statement continuously current and effective until the
second anniversary of the date such Initial Registration Statement is declared
effective by the Commission (plus a number of Business Days equal to the
number of Business Days, if any, that the Initial Registration Statement is
not kept effective or is suspended pursuant to Section 9(b) hereof after the
initial date of its effectiveness and prior to the second anniversary thereof)
or such shorter period which will terminate when all of the Registrable Common
Stock covered by the Initial Registration Statement has been sold pursuant to
the Initial Registration Statement or such shares of Common Stock covered by
the Initial Registration Statement cease to be Registrable Common Stock (the
"Initial Registration Period"). As promptly as practicable after becoming
eligible to file a registration statement on Form S-3 under the Securities
Act, the Company shall amend the Initial Registration Statement utilizing Form
S-3. If so demanded by Requesting Holders, up to two underwritten offerings
may be effected pursuant to the Initial Registration Statement without
reducing the number of registrations that the Company is required to effect
pursuant to Section 3 hereof, provided that at least 180 days must elapse
between the initiation of an underwritten offering and the closing of a prior
underwritten offering.
3. Securities Act Registration on Request.
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(a) Request. At any time and from time to time after the
expiration of the Initial Registration Period, the Requesting Holders may make
a written request (the "Initiating Request") to the Company for the
registration with the Commission under the Securities Act of all or part of
such Requesting Holders' Registrable Common Stock, which Initiating Request
shall specify the number of shares to be disposed of by such Requesting
Holders and the proposed plan of distribution therefor. Upon the receipt of
any Initiating Request for registration pursuant to this Section 3(a), the
Company promptly shall notify in writing all other Holders of the receipt of
such request and will use its reasonable best efforts to effect, at the
earliest practicable date, such registration under the Securities Act,
including a Shelf Registration, if applicable, of
(i) the Registrable Common Stock which the Company has been
so requested to register by such Requesting Holder or Holders, and
(ii) all other Registrable Common Stock which the Company
has been requested to register by any other Holders by written
request given to the Company within 30 days after the giving of
written notice by the Company to such other Holders of the Initiating
Request,
all to the extent necessary to permit the disposition (in accordance with
Section 6(c) hereof) of the Registrable Common Stock so to be registered;
provided, that,
(A) the Company shall not be required to effect
more than a total of four registrations pursuant to this
Section 3 (including a Shelf Registration effected pursuant
to Section 3(b)),
(B) if the Company shall have previously effected a
registration pursuant to this Section 3(a) (including one
registration effected pursuant to Section 3(b)) or shall
have previously effected a registration of which notice has
been given to the Holders pursuant to Section 4 hereof
following the effectuation of a registration pursuant to
this Section 3(a), the Company shall not be required to
effect any registration or file a Registration Statement
pursuant to this Section 3(a) until a period of 180 days
shall have elapsed from the date on which the previous such
registration is no longer required to be kept effective, it
being agreed that the foregoing limitation shall in no event
be applicable to the first Initiating Request pursuant to
this Section 3(a),
(C) any Holder whose Registrable Common Stock was
to be included in any such registration pursuant to this
Section 3, by written notice to the Company, may withdraw
such request and, on receipt of such notice of the
withdrawal of such request from Holders holding a percentage
of Registrable Common Stock, such that the Holders that have
not elected to withdraw do not hold, in the aggregate, the
requisite percentage of the Registrable Common Stock to
initiate a request under this Section 3, the Company shall
not effect such registration, and
(D) the Company shall not be required to effect any
registration pursuant to this Section 3(a) unless at least
12.5% of the shares of Common Stock issued pursuant to this
Plan are to be included in such registration.
(b) Shelf Registration. One Initiating Request may be made
for a shelf registration statement (a "Shelf Registration Statement") pursuant
to Rule 415 promulgated under the Securities Act (a "Shelf Registration")
providing for the sale by the Holders (including sales by the Holders pursuant
to underwritten offerings) of any or all of the Registrable Common Stock (the
date of such request, the "Shelf Request Date"). After the Shelf Request Date,
the Company shall (i) use its reasonable best efforts to file, at the earliest
practicable date (but in any event not later than 90 days after such request),
such Shelf Registration Statement under the Securities Act and (ii) use its
reasonable best efforts to have such Shelf Registration Statement thereafter
declared effective by the Commission at the earliest practicable date, but in
any event not later than 120 days after the Shelf Request Date or, if a Shelf
Registration Statement is reviewed by the Staff of the Commission, not later
than 180 days after the Shelf Request Date. Subject to Section 9(b), the
Company agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective under Rule 415 of the Securities
Act until the earliest to occur of (i) the first anniversary of the date such
Shelf Registration Statement initially is declared effective by the Commission
(plus a number of Business Days equal to the number of Business days, if any,
that the Shelf Registration Statement is not kept effective or is suspended
pursuant to Section 9(b) hereof after the initial date of its effectiveness
and prior to the first anniversary thereof), (ii) the day after the date on
which all of the Registrable Common Stock covered by the Shelf Registration
Statement has been sold pursuant to the Shelf Registration Statement or (iii)
the first date on which there shall cease to be any Registrable Common Stock.
The Company shall not be required to effect any registration pursuant to this
Section 3(b) unless at least 12.5% of the shares of Common Stock issued
pursuant to the Plan are to be included in such registration.
4. Piggyback Registration. If the Company, at any time when the
Initial Registration Statement or a Shelf Registration Statement on which all
Holders of Registrable Common Stock may register their shares of Registrable
Common Stock is not effective, proposes to register any of its securities
under the Securities Act by registration on any forms other than Form S-4 or
S-8 (or any successor or similar form(s)), whether or not pursuant to
registration rights granted to other holders of its securities and whether or
not for sale for its own account, it shall give prompt written notice to all
of the Holders of the Registrable Common Stock of its intention to do so and
of such Holders' rights (if any) under this Section 4, which notice, shall be
given at least 15 days prior to such proposed registration. Upon the written
request of any Holder of Registrable Common Stock receiving notice of such
proposed registration (a "Piggyback Requesting Holder") made within 7 days
after the receipt of any such notice (5 days if the Company states in such
written notice to the relevant security holders stating that (i) such
registration will be on Form S-3 and (ii) such shorter period of time is
required because of a planned filing date), which request shall specify the
Registrable Common Stock intended to be disposed of by such Piggyback
Requesting Holder (which may be all or any portion of such Holder's
Registrable Common Stock) and, in the case of an underwritten offering the
minimum offering price per share at which such Piggyback Requesting Holder is
willing to sell its Registrable Common Stock, the Company shall, subject to
Section 7(b) hereof, effect the registration under the Securities Act of all
Registrable Common Stock which the Company has been so requested to register
by the Piggyback Requesting Holders thereof; provided, that,
(A) prior to the effective date of the registration
statement filed in connection with such registration
pursuant to this Section 4, promptly following receipt of
notification, if any, by the Company from the managing
underwriter (if an underwritten offering) of the price or
range of prices at which such securities are proposed to be
sold, the Company shall so advise each Piggyback Requesting
Holder of such price;
(B) any Piggyback Requesting Holder may withdraw
all of its Registrable Common Stock requested by such
Piggyback Requesting Holder to be included in such
registration statement at any time prior to the earlier of
the execution and delivery of any underwriting agreement
with respect to the applicable offering and the date of
effectiveness of the registration statement in respect of
such registration by delivery of written notice of such
withdrawal to the Company as promptly as practicable,
without prejudice to the rights of any holder or holders of
Registrable Common Stock to include Registrable Common Stock
in any future registration (or registrations) pursuant to
this Section 4 or to cause such registration to be effected
as a registration under Section 3 hereof, as the case may
be;
(C) if at any time after giving written notice of
its intention to register any 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 or to delay
registration of all of such securities, the Company may, at
its election, give written notice of such determination to
each Piggyback Requesting Holder and (i) in the case of a
determination not to register, shall be relieved of its
obligation to register any Registrable Common Stock in
connection with such registration (but not from any
obligation of the Company to pay the Expenses in connection
therewith), without prejudice, however, to the rights of any
Holder to include Registrable Common Stock in any future
registration (or registrations) pursuant to this Section 4
or to cause such registration to be effected as a
registration under Section 3 hereof, as the case may be, and
(ii) in the case of a determination to delay registering,
shall be permitted to delay registering any Registrable
Common Stock, for the same period as the delay in
registering such other securities; and
(D) if such registration was initiated by the
Company for its own account and involves an underwritten
offering, each Piggyback Requesting Holder that does not
withdraw its request as provided in Section 4(B) shall sell
its Registrable Common Stock on the same terms and
conditions as those that apply to the Company, and the
underwriters of such underwritten offering (including the
Registrable Common Stock sold by each Piggyback Requesting
Holder) shall be an underwriter (or underwriters) selected
by the Company in its sole and absolute discretion.
No registration effected under this Section 4 shall relieve
the Company of its obligation to effect any registration upon request under
Section 3(a) or 3(b) hereof and no registration effected pursuant to this
Section 4 shall be deemed to have been effected pursuant to Section 3(a) or
3(b) hereof.
Notwithstanding anything in this Agreement to the contrary,
the Company shall have no obligation under this Section 4 to make any offering
of its securities, or to complete an offering of its securities that it
proposes to make, and shall incur no liability to any Holder for its failure
to do so, except for any liability to pay Expenses.
5. Expenses.
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(a) The Company shall pay all Expenses in connection with
any registration initiated pursuant to Section 2, 3 or 4 hereof, whether or
not such registration shall become effective and whether or not all or any
portion of the Registrable Common Stock originally requested to be included in
such registration is ultimately included in such registration.
(b) Notwithstanding anything in subsection (a) to the
contrary, the Company shall not be required to pay for any Expenses of any
registration proceeding begun pursuant to Sections 2 or 3 if the registration
request is subsequently withdrawn at the request of Holders of a majority of
the Registrable Common Stock to be registered (in which case all participating
Holders shall bear such expenses pro rata based upon the number of shares of
Registrable Common Stock that were to be requested in the withdrawn
registration), unless, in the case of a registration requested under Section
3, the Holders of a majority of the Registrable Common Stock agree to forfeit
their right to one demand registration pursuant to Section 3 or a registration
request is withdrawn pursuant to Section 9(a) hereof.
6. General.
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(a) Registration of Other Securities. Whenever the Company
shall effect a registration pursuant to Section 2 or 3 hereof, no securities
other than (i) Registrable Common Stock and (ii) subject to Section 6(e),
Common Stock to be sold by the Company for its own account shall be included
among the securities covered by any such registration pursuant to Section 3(a)
unless the Selling Holders holding not less than a majority of the shares of
Registrable Common Stock to be covered by such registration shall have
consented in writing to the inclusion of such other securities.
(b) Registration Statement Form. Registrations under Section
2 or 3 hereof shall be on such appropriate registration form prescribed by the
Commission under the Securities Act as shall be selected by the Company and as
shall permit the disposition of the Registrable Common Stock pursuant to an
underwritten offering unless the Selling Holders holding at least a majority
of the shares of Registrable Common Stock requested to be included in such
registration statement determine otherwise, in which case pursuant to the
method of disposition determined by such Selling Holders. The Company agrees
to use its reasonable best efforts to include in any such registration
statement filed pursuant to Section 2, 3 or 4 hereof all information which the
Selling Holders holding a majority of shares of the Registrable Common Stock
covered by such registration statement effected pursuant hereto, upon advice
of counsel, shall reasonably request. The Company may, if permitted by law,
effect any registration requested under Section 2 or 3 by the filing of a
registration statement on Form S-3 (or any successor or similar short form
registration statement).
(c) Effective Registration Statement. A registration
requested pursuant to Section 2 or 3 hereof shall not be deemed to have been
effected
(i) unless a registration statement with respect
thereto has been declared effective by the Commission and remains
effective in compliance with the provisions of the Securities Act and
the laws of any state or other jurisdiction applicable to the
disposition of Registrable Common Stock covered by such registration
statement until such time as all of such Registrable Common Stock has
been disposed of in accordance with the method of disposition set
forth in such registration statement or there shall cease to be any
Registrable Common Stock, provided, that, except with respect to the
Initial Registration Statement or Shelf Registration, such period
need not exceed 90 days, and, provided, further, that with respect to
any Initial Registration Statement or Shelf Registration, such period
need not extend beyond the applicable period provided for in Section
2 or, as the case may be, 3(b) hereof,
(ii) if, after it has become effective, such
registration is interfered with by any stop order, injunction or
other order or requirement of the Commission or other governmental or
regulatory agency or court for any reason other than a violation of
applicable law or regulation solely by any Selling Holder and has not
thereafter become effective or
(iii) if, in the case of an underwritten offering
pursuant to a registration statement requested under Section 3 (a)
hereof, the conditions to closing specified in an underwriting
agreement to which the Company is a party (other than conditions to
the underwriters' obligations relating expressly to Selling Holders
that are not typical in underwritten offerings) are not satisfied or
waived other than by reason of any breach or failure by any Selling
Holder, or are not otherwise waived.
The Holders of Registrable Common Stock to be included in a
registration statement may at any time terminate a request for registration
made pursuant to Section 3(a) in accordance with Section 3(a)(ii)(C).
(d) Selection of Underwriters. The underwriter or
underwriters of each underwritten offering, if any, of the Registrable Common
Stock pursuant to a registration statement effected under Section 2 or 3
hereof shall be mutually selected by the Selling Holders owning at least a
majority of the shares of Registrable Common Stock to be registered and the
Company.
(e) Priority in Requested Registration. If a registration
under Section 3(a) hereof involves an underwritten Public Offering or if an
underwritten Public Offering is being effected pursuant to a shelf
registration statement, and the managing underwriter of such underwritten
offering shall advise the Company in writing (with a copy to each Selling
Holder requesting that Registrable Common Stock be included in such
underwritten offering) that, in its opinion, the number of shares of
Registrable Common Stock requested to be included in such underwritten
offering exceeds the number of such securities that can be sold in such
offering within a price range stated to such managing underwriter by Selling
Holders owning at least a majority of the shares of Registrable Common Stock
requested to be included in such underwritten offering to be acceptable to
such Selling Holders, the Company shall include in such underwritten offering,
to the extent of the number and type of securities which the Company is
advised can be sold in such offering, all Registrable Common Stock requested
to be included, pro rata among the Selling Holders requested to be included in
such underwritten offering on the basis of the number of shares of Registrable
Common Stock requested to be included by all such Selling Holders, and no
other shares of Common Stock, whether to be sold by the Company or any other
Person.
(f) Registration Procedures. If and whenever the Company is
required to effect any registration under the Securities Act as provided in
Sections 2, 3 and 4 hereof, the Company shall, as expeditiously as possible:
(i) prepare and file with the Commission (promptly
and, in the case of any registration pursuant to Section 3(a), in any
event on or before the date that is (A) 90 days after the date the
request for registration is given to the Company by the Requesting
Holders or (B) if, as of such ninetieth day, the Company does not
have any audited financial statements required to be included in the
registration statement, 30 days after the receipt by the Company from
its independent public accountants of such audited financial
statements, which the Company shall use its reasonable best efforts
to obtain as promptly as practicable) the requisite registration
statement to effect such registration and thereafter use its
reasonable best efforts to cause such registration statement to
become and remain effective; provided, however, that the Company may
discontinue any registration of its securities that are not shares of
Registrable Common Stock (and, under the circumstances specified in
Sections 4 and 9(b) hereof, its securities that are shares of
Registrable Common Stock) at any time prior to the effective date of
the registration statement relating thereto;
(ii) prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep
such registration statement effective and to comply with the
provisions of the Securities Act and the Exchange Act with respect to
the disposition of all Registrable Common Stock covered by such
registration statement until such time as all of such Registrable
Common Stock has been disposed of in accordance with the method of
disposition set forth in such registration statement; provided, that,
except with respect to any Initial Registration Statement or Shelf
Registration, such period need not extend beyond 90 days after the
effective date of the registration statement; and provided, further,
that with respect to the Initial Registration Statement or Shelf
Registration, such period need not extend beyond the applicable
period provided for in Section 2 or, as the case may be, 3(b) hereof;
(iii) furnish to each seller of Registrable Common
Stock covered by such registration statement and their
representatives designated pursuant to Section 8(a), if any, and each
underwriter, if any, such number of copies of such drafts and final
conformed versions of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits
and any documents incorporated by reference), such number of copies
of such drafts and final versions of the prospectus contained in such
registration statement (including each preliminary prospectus and any
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, including without
limitation notification of whether such registration statement or
amendment or supplement thereto will be reviewed by the Commission or
any other regulatory authority and any oral or written comments on
such registration statement or amendment or supplement thereto
delivered to the Company by the Commission or any other regulatory
authority, as the sellers of a majority of the Registrable Common
Stock covered by such registration statement or any underwriter may
reasonably request in writing; provided, that all drafts of such
registration statement or amendment or supplement thereto shall be
furnished to each seller of Registrable Common Stock covered by such
registration statement and their representatives designated pursuant
to Section 8(a) whether or not so requested;
(iv) use its reasonable best efforts (i) to
register or qualify all Registrable Common Stock and other
securities, if any, covered by such registration statement under such
other securities or blue sky laws of such states or other
jurisdictions of the United States of America as the sellers of a
majority of the Registrable Common Stock covered by such registration
statement shall reasonably request in writing, (ii) to keep such
registration or qualification in effect for so long as such
registration statement remains in effect and (iii) to take any other
action that may be necessary or reasonably advisable to enable such
sellers to consummate the disposition in such jurisdictions of the
securities to be sold by such sellers, except 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
would not but for the requirements of this Section 6(f)(iv) be
obligated to be so qualified, to subject itself to taxation in such
jurisdiction or to consent to general service of process in any such
jurisdiction;
(v) use its reasonable best efforts to cause all
Registrable Common Stock and other securities, if any, covered by
such registration statement to be registered with or approved by such
other federal or state governmental agencies or authorities as may be
necessary in the opinion of counsel to the Company and counsel to the
seller or sellers of Registrable Common Stock to enable the seller or
sellers thereof to consummate the disposition of such Registrable
Common Stock;
(vi) in connection with any underwritten offering
hereunder, furnish to each seller of Registrable Common Stock covered
by the relevant registration statement, and each such seller's
underwriters, if any, a signed
(A) opinion of counsel for the Company,
dated the effective date of such registration statement and
dated the date of the closing under the underwriting
agreement and addressed to the underwriters, reasonably
satisfactory (based on the customary form and substance of
opinions of issuers' counsel customarily given in such an
offering) in form and substance to such Selling Holders
holding a majority of the Registrable Common Stock being
sold, and
(B) "cold comfort" letter, dated the
effective date of such registration statement and dated the
date of the closing under the underwriting agreement and
addressed to the underwriters and signed by the independent
public accountants who have certified the Company's
financial statements included or incorporated by reference
in such registration statement, reasonably satisfactory
(based on the customary form and substance of "cold comfort"
letters of issuers' independent public accountant
customarily given in such an offering) in form and substance
to Selling Holders holding a majority of the Registrable
Common Stock being sold, in each case, covering
substantially the same matters with respect to such
registration statement (and the prospectus included therein)
and, in the case of the accountants' comfort letter, with
respect to events subsequent to the date of such financial
statements, as are customarily covered in accountants'
comfort letters delivered to underwriters in underwritten
Public Offerings of securities;
(vii) notify each seller of Registrable Common
Stock and other securities covered by such registration statement, if
any, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, upon discovery that, or upon the
happening of any event as a result of which, the prospectus included
in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which
they were made, and, at the written request of any such seller of
Registrable Common Stock, promptly prepare and furnish to it 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, as
supplemented or amended, shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances under which they were made;
(viii) use its reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of a
registration statement relating to the Registrable Common Stock at
the earliest possible moment;
(ix) otherwise comply in all material respects with
all applicable rules and regulations of the Commission and any other
governmental agency or authority having jurisdiction over the
offering, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of
at least 12 months, but not more than 18 months, beginning with the
first full fiscal quarter after the effective date of such
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
promulgated thereunder;
(x) furnish to each seller of Registrable Common
Stock and to the managing underwriter, if any, as promptly as
practicable prior to the filing thereof a copy of any amendment or
supplement to such registration statement or prospectus;
(xi) use its best efforts to cause all Registrable
Common Stock covered by a Registration Statement to be listed on a
national securities exchange, or, if necessary or required, on an
interdealer quotation system, on which similar securities issued by
the Company are then listed;
(xii) provide a transfer agent, registrar and CUSIP
number for the Registrable Common Stock covered by a Registration
Statement no later than the effective date thereof;
(xiii) enter into such agreements (including an
underwriting agreement in customary form) and take such other actions
as the Holders holding a majority of the shares of Registrable Common
Stock covered by such registration statement shall reasonably request
in order to expedite or facilitate the disposition of such
Registrable Common Stock, including customary indemnification;
(xiv) if requested by the managing underwriter(s)
or the Holders holding a majority of the shares of Registrable Common
Stock being sold in connection with an underwritten offering, subject
to applicable law, promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing
underwriter(s) and the Holders of a majority of the Registrable
Common Stock being sold agree should be included therein relating to
the plan of distribution with respect to such Registrable Common
Stock, including without limitation, information with respect to the
number of shares of Registrable Common Stock being sold to such
underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the underwritten
offering of the Registrable Common Stock 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; and
(xv) if requested by the Selling Holders holding a
majority of the shares of Registrable Common Stock being sold,
reasonably cooperate with the Selling Holders of Registrable Common
Stock and the managing underwriter(s), if any, to facilitate the
timely preparation and delivery of certificates representing
Registrable Common Stock to be sold and not bearing any restrictive
legends (except as may be provided in the Company's certificate of
incorporation, as amended); and enable such Registrable Common Stock
to be in such share amounts and registered in such names as the
managing underwriter(s) or, if none, the Selling Holders holding a
majority of the shares of Registrable Common Stock being sold, may
request at least two Business Days prior to any sale of Registrable
Common Stock to the underwriters.
As a condition to the obligations of the Company to complete
any registration pursuant to this Agreement with respect to the Registrable
Common Stock of a Holder, such Holder must furnish to the Company in writing
such information regarding itself, the Registrable Common Stock held by it and
the intended methods of disposition of the Registrable Common Stock held by it
as is necessary to effect the registration of such Holders' Registrable Common
Stock and is requested in writing by the Company. At least 20 days prior to
the first anticipated filing date of a Registration Statement for any
registration under this Agreement, the Company will notify in writing each
Holder of the information referred to in the preceding sentence which the
Company is requesting from that Holder whether or not such Holder has elected
to have any of its Registrable Common Stock included in the Registration
Statement. If, within 3 days prior to the filing date, the Company has not
received the requested information from a Holder, then the Company may file
the Registration Statement without including Registrable Common Stock of that
Holder, if, in the opinion of the Company's counsel, such information is
required to be included in such Registration Statement.
Each Holder agrees that as of the date that a final
prospectus is made available to it for distribution to prospective purchasers
of Registrable Common Stock it shall cease to distribute copies of any
preliminary prospectus prepared in connection with the offer and sale of such
Registrable Common Stock. Each Holder further agrees that, upon receipt of any
written notice from the Company of the happening of any event of the kind
described in Section 6(f)(vii), such Holder shall forthwith discontinue such
Holder's disposition of Registrable Common Stock pursuant to the registration
statement relating to such Registrable Common Stock until such Holder's
receipt of the copies of the supplemented or amended prospectus contemplated
by Section 6(f)(vii) and, if so directed by the Company, shall 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 relating to such
Registrable Common Stock current at the time of receipt of such notice. If any
event of the kind described in Section 6(f)(vii) occurs and such event is the
fault solely of a Holder (or Holders), such Holder (or Holders) shall pay all
Expenses attributable to the preparation, filing and delivery of any
supplement or amendment of such prospectus contemplated by Section 6(f)(vii).
7. Underwritten Offerings.
----------------------
(a) Requested Underwritten Offerings. If requested by the
underwriters in connection with an underwritten Public Offering pursuant to a
registration under Section 2 or 3 hereof, the Company shall enter into a
underwriting agreement with such underwriters for such offering, such
agreement to be reasonably satisfactory in substance and form to the Company
and a majority of the Selling Holders whose Registered Common Stock is
included in such offering, and the underwriters and to contain such
representations and warranties by the Company and the Selling Holders and such
other terms as are customary in agreements of that type, including, without
limitation, indemnification and contribution to the effect and to the extent
provided in Section 10 hereof.
(b) Piggyback Underwritten Offerings: Priority.
(i) If the Company proposes to register any of its
securities under the Securities Act for its own account as
contemplated by Section 4 hereof and such securities are to be
distributed by or through one or more underwriters, and if the
managing underwriter of such underwritten offering shall advise the
Company in writing (with a copy to the Piggyback Requesting Holders)
that if all the Registrable Common Stock requested to be included in
such registration were so included, in its opinion, the number and
type of securities proposed to be included in such registration would
exceed the number and type of securities which could be sold in such
offering within a price range acceptable to the Company (such writing
to state the basis of such opinion and the approximate number and
type of securities which may be included in such offering without
such effect), then the Company shall include in such registration
pursuant to Section 4, to the extent of the number and type of
securities which the Company is so advised can be sold in such
offering, (i) first, all of the securities that the Company proposes
to issue and sell for its own account, (ii) second, Registrable
Common Stock requested to be registered by Piggyback Requesting
Holders pursuant to Section 4 hereof, pro rata among the Piggyback
Requesting Holders on the basis of the number of shares of
Registrable Common Stock requested to be registered by all such
Piggyback Requesting Holders and (iii) third, other securities, if
any.
(ii) In the case of any other registration
contemplated by Section 4 involving an underwritten Public Offering,
if the managing underwriter of such underwritten offering shall
advise the Company in writing (with a copy to the Piggyback
Requesting Holders) that if all Registrable Common Stock requested to
be included in such registration were so included, in its opinion,
the number and type of securities proposed to be included in such
registration would exceed the number and type of securities which
would be sold in such offering within a price range stated to such
managing underwriter by Selling Holders owning at least a majority of
the shares of Registrable Common Stock requested to be included in
such registration to be acceptable to such Selling Holders (such
writing to state the basis of such opinion and the approximate number
and type of securities which may be included in such offering without
such effect), then the Company shall include in such registration
pursuant to Section 4, to the extent of the number and type of
securities which the Company is so advised can be sold in such
offering, (i) first, securities that the Company proposed to issue
and sell for its own account, (ii) second, Registrable Common Stock
requested to be registered by Piggyback Requesting Holders pursuant
to Section 4 hereof, pro rata among the Piggyback Requesting Holders
on the basis of the number of shares of Registrable Common Stock
requested to be registered by all such Piggyback Requesting Holders,
and (iii) third, other securities.
In addition to the withdrawal rights specified in Section
4(B) hereof, any Holder may withdraw its request to have all or any portion of
its Registrable Common Stock included in any such offering by notice to the
Company within 5 Business Days after receipt of a copy of a notice from the
managing underwriter pursuant to this Section 7(b).
(c) Holders of Registrable Common Stock to be Parties to
Underwriting Agreement. The holders of Registrable Common Stock to be
distributed by underwriters in an underwritten offering contemplated by
Section 7(a) or (b) shall be parties to the underwriting agreement between the
Company and such underwriters and any such Holder, at its option, may
reasonably require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to and for the benefit of
such underwriters shall also be made to and for the benefit of such Holders
and that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the
obligations of such Holders. No such Holder shall be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
such Holder, such Holder's Registrable Common Stock and such Holder's intended
method of distribution; provided that any liability of such Holder shall be
limited to the proceeds received from such distribution in accordance with
Section 10(b) or (d) hereof.
(d) Holdback Agreements. Each Holder agrees, unless
otherwise agreed to by the managing underwriter for any underwritten offering
pursuant to this Agreement, not to effect any sale or distribution of any
equity securities of the Company or securities convertible into or
exchangeable or exercisable for equity securities of the Company, including
any sale under Rule 144 under the Securities Act and any other market sale,
during the 10 days prior to the date on which an underwritten registration of
Registrable Common Stock pursuant to Section 2, 3 or 4 hereof has become
effective and until 180 days after the effective date of such underwritten
registration, except (i) as part of such underwritten registration, (ii) for
transfers to Affiliates of such Holders who agree to be bound by this
Agreement, (iii) for distributions by limited partnerships or limited
liability companies to their limited partners or members who agree to be bound
by this Agreement, or (iv) to the extent that such Holder is prohibited by
applicable law from agreeing to withhold securities from sale or is acting in
its capacity as a fiduciary or an investment adviser. Without limiting the
scope of the term "fiduciary," a holder shall be deemed to be acting as a
fiduciary or an investment adviser if its actions or the securities proposed
to be sold are subject to the Employee Retirement Income Security Act of 1974,
as amended, the Investment Company Act of 1940, as amended, or the Investment
Advisers Act of 1940, as amended, or if such securities are held in a separate
account under applicable insurance law or regulation.
The Company agrees (i) unless otherwise agreed to by the
managing underwriter for any underwritten offering pursuant to this Agreement,
not to effect any Public Offering or distribution of any equity securities of
the Company, or securities convertible into or exchangeable or exercisable for
equity securities of the Company, during the 14 days prior to the date on
which any underwritten registration pursuant to Section 2, 3(a), 3(b) or 4
hereof has become effective and until 180 days after the effective date of
such underwritten registration, except as part of such underwritten
registration and except for distributions pursuant to any employment, option
or benefit plan or agreement of the Company, and (ii) to cause each holder of
any equity securities, or securities convertible into or exchangeable or
exercisable for equity securities, in each case, acquired from the Company at
any time after the date of this Agreement (other than in a Public Offering or
a transaction effected pursuant to Rule 144A under the Securities Act), to
agree not to effect any Public Offering or distribution of such securities,
during such period.
8. Preparation: Reasonable Investigation.
-------------------------------------
(a) Registration Statements. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company shall (i) give representatives
(designated to the Company in writing and who execute a confidentiality
agreement as described below) of each Holder or group of Holders holding at
least 25% of the shares of Registrable Common Stock registered under such
registration statement, the underwriters, if any, and one firm of counsel, one
firm of accountants and one firm of other agents retained on behalf of all
underwriters and one firm of counsel, one firm of accountants and one firm of
other agents retained on behalf of Holders holding a majority of the shares of
Registrable Common Stock covered by such registration statement, the
reasonable 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, (ii) upon reasonable advance
notice to the Company, give each of them such reasonable access to all
financial and other records, corporate documents and properties of the Company
and its subsidiaries, as shall be necessary, in the reasonable opinion of such
Holders' and such underwriters' counsel, to conduct a reasonable due diligence
investigation for purposes of the Securities Act, and (iii) upon reasonable
advance notice to the Company, provide such reasonable opportunities to
discuss the business of the Company with its officers, directors, employees
and the independent public accountants who have certified its financial
statements as shall be necessary, in the reasonable opinion of such Holders'
and such underwriters' counsel, to conduct a reasonable due diligence
investigation for purposes of the Securities Act, provided however, that with
respect to (i), (ii) and (iii) above, all persons conducting due diligence on
behalf of holders shall cooperate to the extent reasonably practicable to
minimize any disruption to the Company's operation of its business.
(b) Confidentiality. Each Holder of Registrable Common Stock
(i) shall maintain, and shall cause its agents referred to in Section 8(a) to
maintain, the confidentiality of any confidential information received from or
otherwise made available by the Company to such Holder of Registrable Common
Stock, including drafts of registration statements, and (ii) shall use, and
shall cause its agents referred to in Section 8(a) to use, all confidential
information only to exercise the Holders' due diligence responsibility.
Information that (i) is or becomes available to a Holder of Registrable Common
Stock from a public source other than as a result of a disclosure by such
Holder or any of its Affiliates, (ii) is disclosed to a Holder of Registrable
Common Stock by a third-party source who the Holder of Registrable Common
Stock reasonably believes is not bound by an obligation of confidentiality to
the Company or (iii) is or becomes required to be disclosed by a Holder of
Registrable Common Stock by law, including by court order, shall not be deemed
to be confidential information for purposes of this Agreement. The Holders of
Registrable Common Stock shall only grant access, and the Company shall only
be required to grant access, to information under this Section 8 to legal
counsel and to such other Person(s) who agree in writing in form and substance
reasonably satisfactory to the Company whereby the Person executing such
writing shall maintain the confidentiality of any confidential information
received from or otherwise made available to it by the Company or the holders
of Registrable Common Stock under this Agreement.
9. Postponements.
-------------
(a) If the Company shall fail to file or delay filing
for more than 90 days after receipt of any Initiating Request any registration
statement to be filed pursuant to a request for registration under Section 3
hereof (whether or not pursuant to Section 9(b)), the Holders requesting such
registration shall have the right to withdraw the request for registration if
such withdrawal shall be made by Holders of Common Stock holding an amount of
Common Stock such that the Holders that have not elected to withdraw do not
hold the requisite percentage of shares of Common Stock to initiate a request
under Section 3. Any such withdrawal shall be made by giving written notice to
the Company within 20 days after, in the case of a request pursuant to Section
3 hereof, the date on which a registration statement would otherwise have been
required to have been filed with the Commission under clause (A) of Section
6(f)(i) hereof (i.e., 20 days after the date that is 90 days after the request
for registration is given to the Company, or, if, as of such ninetieth day,
the Company does not have the audited financial statements required to be
included in the registration statement, 30 days after the receipt by the
Company from its independent public accountants of such audited financial
statements). In the event of such withdrawal, the request for registration
shall not be counted for purposes of determining the number of registrations
to which Holders are entitled pursuant to Section 3 hereof. The Company shall
pay all Expenses incurred in connection with a request for registration
withdrawn pursuant to this paragraph.
(b) The Company shall not be obligated to file any
registration statement, or file any amendment or supplement to any
registration statement, and may suspend any Selling Holder's rights to make
sales pursuant to any effective registration statement, at any time (but not
to exceed two times in any 12 month period) when the Company, in the good
faith judgment of its Board of Directors, reasonably believes that the filing
thereof at the time requested, or the offering of securities pursuant thereto,
would materially and adversely affect a pending or proposed Public Offering of
the Company's securities, including, without limitation, a material financing,
or a material acquisition, merger, recapitalization, consolidation,
reorganization or similar transaction, or negotiations, discussions or pending
proposals with respect thereto or would require the disclosure of material
non-public information that, in the good faith judgment of the Board of
Directors, individually or in the aggregate, would have a material adverse
effect on (i) the Company and its subsidiaries taken as a whole or (ii) any
material business line of the Company. The filing of a registration statement,
or any amendment or supplement thereto, by the Company cannot be deferred, and
the Selling Holders' rights to make sales pursuant to an effective
registration statement cannot be suspended, pursuant to the provisions of the
preceding sentence for more than 10 days after the abandonment or consummation
of any of the foregoing proposals or transactions or for more than 60 days
after the date of the Board's determination referenced in the preceding
sentence (or for more than an aggregate of 90 days in any 12 month period). If
the Company suspends the sellers' rights to make sales pursuant hereto, the
applicable registration period shall be extended by the same number of days of
such suspension.
(c) Notwithstanding anything to the contrary contained
in this Section 9, during any period in which the Company is not eligible to
use Form S-3 (or comparable successor form), the Company may suspend any
Holder's rights to make sales pursuant to any effective registration
statement, in order to file a post-effective amendment to a registration
statement (i) to include and update the Company's financial statements for
each quarter and annual period, which post-effective amendment will be filed
with the Commission not later than 3 Business Days following the date the
Company files its Quarterly Reports on Form 10-Q or Form 10-K for each such
quarter or annual period, as applicable, with the Commission or (ii) as
necessary in the judgment of the Company's counsel to otherwise comply with
Commission rules and interpretations requiring the Company to file
post-effective amendments to report any event which constitutes a material
change. In connection with such filing, the Company will use its reasonable
best efforts to obtain effectiveness of such post-effective amendment at the
earliest practicable time.
10. Indemnification.
---------------
(a) Indemnification by the Company. In connection with any
registration statement filed by the Company pursuant to Section 2, 3 or 4
hereof, to the fullest extent permitted by law the Company shall, and hereby
agrees to, indemnify and hold harmless, each Holder of any Registrable Common
Stock covered by such registration statement and each other Person, if any,
who controls (within the meaning of the Exchange Act) such Holder, and their
respective stockholders, directors, officers, employees, partners, agents and
Affiliates (each, a "Company Indemnitee" for purposes of this Section 10(a)),
against any losses, claims, damages, liabilities (or actions or proceedings,
whether commenced or threatened, in respect thereof and whether or not such
Company Indemnitee is a party thereto), joint or several, and expenses,
including, without limitation, the reasonable fees, disbursements and other
charges of legal counsel and reasonable costs of investigation, to which such
Company Indemnitee may become subject under the Securities Act or otherwise
(collectively, a "Loss" or "Losses"), insofar as such Losses arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered or otherwise offered or sold under the Securities
Act or otherwise, any preliminary prospectus, final prospectus or summary
prospectus related thereto, or any amendment or supplement thereto or any
document incorporated by reference, if used during the period in which the
Company is required to keep the registration statement to which such
prospectus relates current (collectively, "Offering Documents"), or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in the light of the
circumstances in which they were made not misleading (with respect to the
final prospectus or summary prospectus related thereto, or any amendment or
supplement thereto, if used during the period in which the Company is required
to keep the registration statement to which such prospectus relates current),
or any violation by the Company or any of its Affiliates of any federal or
state law, rule or regulation applicable to the Company or any of its
Affiliates and relating to action required of or inaction by the Company or
any of its Affiliates in connection with any such registration; provided,
that, the Company shall not be liable in any such case to the extent that any
such Loss arises out of or is based upon an untrue statement or omission made
in such Offering Documents in reliance upon and in conformity with information
furnished to the Company in writing by such Company Indemnitee, or on its
behalf, specifically stating that it is for inclusion therein; and provided,
further, that the Company shall not be liable to any Person who participates
as an underwriter in the offering or sale of Registrable Common Stock or any
other person, if any, who controls (within the meaning of the Exchange Act)
such underwriter, in any such case to the extent that any such Loss arises out
of such Person's failure to send or give a copy of the final prospectus
(including any documents incorporated by reference therein), as the same may
be then supplemented or amended, to the Person asserting an untrue statement
or alleged untrue statement or omission or alleged omission at or prior to the
written confirmation of the sale of Registrable Common Stock to such Person if
such statement or omission was corrected in such final prospectus. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Company Indemnitee and shall
survive the transfer of such securities by such Company Indemnitee.
(b) Indemnification by the Offerors and Sellers. In
connection with any registration statement filed by the Company pursuant to
Section 2, 3 or 4 hereof in which a Holder has registered for sale Registrable
Common Stock, each such Holder of Registrable Common Stock shall, and hereby
agrees to, indemnify and hold harmless to the fullest extent permitted by law
the Company and each of its directors, officers, employees, agents, partners,
stockholders, Affiliates and each other Person, if any, who controls (within
the meaning of the Exchange Act) the Company and each other seller under such
registration statement and such seller's employees, directors, officers,
stockholders, partners, agents and Affiliates (each, a "Holder Indemnitee" for
purposes of this Section 10(b)), against all Losses insofar as such Losses
arise out of or are based upon any untrue statement of a material fact
contained in any Offering Documents (or any document incorporated by reference
therein) or any omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in the light of
circumstances in which they were made not misleading, if such untrue statement
or omission was made in reliance upon and in conformity with information
furnished to the Company in writing by such Holder of Registrable Common
Stock, or on its behalf, specifically stating that it is for inclusion
therein; provided, however, that the liability of such indemnifying party
under this Section 10(b) shall be limited to the amount of the net proceeds
received by such indemnifying party in the sale of Registrable Common Stock
giving rise to such liability. Such indemnity shall remain in full force and
effect, regardless of any investigation made by or on behalf of a Holder
Indemnitee and shall survive the transfer of such securities by such
indemnifying party.
(c) Notices of Losses, etc. Promptly after receipt by an
indemnified party of written notice of the commencement of any action or
proceeding involving a Loss referred to in Section 10(a) or (b), such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under Section 10(a) or (b), except to the extent that the
indemnifying party is materially and actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
the indemnifying party shall be entitled to participate in and, unless in such
indemnified party's reasonable judgment, after consultation with its separate
counsel, a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such Loss, to assume and control the defense
thereof, in each case at its own expense, 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 its assumption of
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation, unless in such indemnified party's reasonable judgment, after
consultation with its separate counsel, a conflict of interest between such
indemnified and indemnifying parties arises in respect of such claim after the
assumption of the defense thereof, in which event the indemnifying party shall
be liable for the reasonable legal expenses of one counsel (plus local
counsel) representing all indemnified parties. No indemnifying party shall be
liable for any settlement of any such action or proceeding effected without
its written consent, which shall not be unreasonably withheld. No indemnifying
party shall, without the consent of the indemnified party, 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 Loss or
which requires action on the part of such indemnified party or otherwise
subjects the indemnified party to any obligation or restriction to which it
would not otherwise be subject.
(d) Contribution. If the indemnification provided for in
this Section 10 shall for any reason be unavailable to an indemnified party
under Section 10(a) or (b) in respect of any Loss, then, in lieu of the amount
paid or payable under Section 10(a) or (b), the indemnified party and the
indemnifying party under Section 10(a) or (b) shall contribute to the
aggregate Losses (including legal or other expenses reasonably incurred in
connection with investigating the same) (i) in such proportion as is
appropriate to reflect the relative fault of the Company and the prospective
sellers of Registrable Common Stock covered by the registration statement
which resulted in such Loss or action in respect thereof, with respect to the
statements, omissions or action which resulted in such Loss or action in
respect thereof, as well as any other relevant equitable considerations, or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as shall be appropriate to reflect the
relative benefits received by the Company, on the one hand, and such
prospective sellers, on the other hand, from their sale of Registrable Common
Stock; provided, that, for purposes of this clause (ii), the relative benefits
received by the prospective sellers shall be deemed not to exceed the amount
received by such sellers in the sale of their Registrable Common Stock. 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. The obligations, if
any, of the selling holders of Registrable Common Stock to contribute as
provided in this Section 10(d) are several in proportion to the relative value
of their respective Registrable Common Stock covered by such registration
statement and not joint. In addition, no Person shall be obligated to
contribute hereunder any amounts in payment for any settlement of any action
or Loss effected without such Person's consent.
(e) Indemnification Payments. The indemnification and
contribution required by this Section 10 shall be made by prompt periodic
payments of the amount thereof during the course of any investigation or
defense, as and when invoices therefor are delivered to the indemnifying party
in respect of any particular Loss as incurred.
11. Registration Rights to Others.
-----------------------------
If the Company shall at any time hereafter provide to any
holder of any securities of the Company rights with respect to the
registration of such securities under the Securities Act or the Exchange Act,
such rights shall not be in conflict with or adversely affect any of the
rights provided to the holders of Registrable Common Stock in, or conflict (in
a manner that adversely affects holders of Registrable Common Stock) with any
other provisions included in, this Agreement.
12. Adjustments Affecting Registrable Common Stock.
----------------------------------------------
Without the written consent of Holders of a majority of the
outstanding shares of Registrable Common Stock, the Company shall not effect
or permit to occur any combination, subdivision or reclassification of
Registrable Common Stock that would materially adversely affect the ability of
the Holders to include such Registrable Common Stock in any registration of
its securities under the Securities Act contemplated by this Agreement or the
marketability of such Registrable Common Stock under any such registration or
other offering.
13. Rule 144.
--------
The Company shall take all actions reasonably necessary to
enable Holders to sell Registrable Common Stock without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144
under the Securities Act, as such Rule may be amended from time to time, or
(b) any similar rules or regulations hereafter adopted by the Commission,
including, without limiting the generality of the foregoing, filing on a
timely basis all reports required to be filed under the Exchange Act or
otherwise complying with Rule 144(c). Upon the written request of any Holder,
the Company shall deliver to such Holder a written statement as to whether it
has complied with such requirements.
14. Amendments and Waivers.
----------------------
Any provision of this Agreement may be amended, modified or
waived if, but only if, the written consent to such amendment, modification or
waiver has been obtained from (i) except as provided in clause (ii) below, the
Holder or Holders of at least a majority of the shares of Registrable Common
Stock affected by such amendment, modification or waiver and (ii) in the case
of any amendment, modification or waiver of the definition of "Expenses", any
provision of Section 2, 5, 9 or 10, any increase in the 180-day time period
specified in Section 7(d) or any provisions or related definitions as to the
number of requests for registration to which holders of Registrable Common
Stock are entitled under Section 3 or 4 hereof, or this Section 14, the
written consent of each Holder so affected.
15. Nominees for Beneficial Owners.
------------------------------
Except as provided otherwise below, a person or entity is
deemed to be a holder of Registrable Common Stock whenever such person or
entity owns of record such Registrable Common Stock. If any Registrable Common
Stock is held by a nominee for the beneficial owner thereof, the beneficial
owner thereof may, at its election in writing delivered to the Company, be
treated as the Holder of such Registrable Common Stock for purposes of any
request or other action by any Holder or Holders pursuant to this Agreement or
any determination of the number or percentage of shares of Registrable Common
Stock held by any Holder or Holders contemplated by this Agreement. The
Company may require assurances reasonably satisfactory to it of such owner's
beneficial ownership of such Registrable Common Stock. If the Company receives
conflicting instructions, notices or elections from two or more persons or
entities with respect to the same Registrable Common Stock, the Company will
act upon the basis of instructions, notice or election received from the
registered owner of such Registrable Common Stock.
16. Assignment.
----------
The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns. Any Holder may assign to any permitted
Transferee (as permitted under applicable law) of its Registrable Common Stock
its rights and obligations under this Agreement, provided that after giving
effect to such Transfer, such Transferee shall hold 5% or more of the
outstanding shares of Common Stock; and, provided further, that such
Transferee shall agree in writing with the parties hereto prior to the
assignment to be bound by this Agreement as if it were an original party
hereto, whereupon such assignee shall for all purposes be deemed to be a
Holder under this Agreement. Except as provided above or otherwise permitted
by this Agreement, neither this Agreement nor any right, remedy, obligation or
liability arising hereunder or by reason hereof shall be assignable by any
Holder without the prior written consent of the other parties hereto. The
Company may not assign this Agreement or any right, remedy, obligation or
liability arising hereunder or by reason hereof.
17. Calculation of Percentage or Number of Shares of Registrable
Common Stock. For purposes of this Agreement, all references to a percentage
or number of shares of Registrable Common Stock or Common Stock shall be
calculated based upon the number of shares of Registrable Common Stock or
Common Stock, as the case may be, issued pursuant to the Plan and shall
exclude any Registrable Common Stock or Common Stock, as the case may be,
owned by the Company or any subsidiary of the Company. For the purposes of
calculating any percentage or number of shares of Registrable Common Stock or
Common Stock as contemplated by the previous sentence, the terms "Holder" and
"Original Holder" shall include all Affiliates thereof owning any shares of
Registrable Common Stock or Common Stock.
18. Notice of Registrable Common Stock Holdings. From time to time,
upon reasonable written request by the Company, each Holder will promptly
advise the Company of the number of shares of Registrable Common Stock then
held by it.
19. Termination of Registration Rights. The Company's obligations
under Sections 2, 3 and 4 hereof to register Common Stock for sale under the
Securities Act shall terminate on the earlier to occur of (i) the first date
on which no shares of Registrable Common Stock are held by any Original Holder
or their permitted Transferees or (ii) the first date on which Holders can
freely sell without restriction all Registrable Common Stock pursuant to Rule
144(k) of the Securities Act.
20. Applicability of Charter and By-laws. Notwithstanding anything to
the contrary herein, all applicable provisions of the Company's Charter and
By-laws shall apply to this agreement and any actions taken hereunder as if
set forth herein.
21. Miscellaneous.
-------------
(a) Further Assurances. Each of the parties hereto shall
execute such documents and other papers and perform such further acts as may
be reasonably required or advisable to carry out the provisions of this
Agreement and the transactions contemplated hereby.
(b) Headings. The headings in this Agreement are for
convenience of reference only and shall not control or affect the meaning or
construction of any provisions hereof.
(c) Remedies. Each Holder, in addition to being entitled to
exercise all rights 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 breach by it of the provisions of this
Agreement and the Company hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(d) Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof, and there are no restrictions, promises, representations,
warranties, covenants or undertakings with respect to the subject matter
hereof, other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings among the parties
hereto with respect to the subject matter hereof.
(e) Notices. Any notices or other communications to be given
hereunder by any party to another party shall be in writing, shall be
delivered personally, by facsimile, by certified or registered mail, postage
prepaid, return receipt requested, or by Federal Express or other comparable
delivery service, to the address of the party set forth on Schedule B hereto
or to such other address as the party to whom notice is to be given may
provide in a written notice to the other parties hereto, a copy of which shall
be on file with the Secretary of the Company. Notice shall be effective when
delivered if given personally, when receipt is acknowledged if telecopied,
three days after mailing if given by registered or certified mail as described
above, and one business day after deposit if given by Federal Express or
comparable delivery service.
(f) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(g) Severability. Notwithstanding any other provision of
this Agreement, neither the Company nor any other party hereto shall be
required to take any action which would be in violation of any applicable
Federal or state securities law. The invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity,
legality or enforceability of any other provision of this Agreement in such
jurisdiction or the validity, legality or enforceability of this Agreement,
including any such provision, in any other jurisdiction, it being intended
that all rights and obligations of the parties hereunder shall be enforceable
to the fullest extent permitted by law.
(h) Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
GENTEK INC.
By:___________________________________
Name:
Title:
GENESIS HOLDING CORP
(f/b/o JPMorgan Chase Bank)
By:___________________________________
Name:
Title:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & CO., L.P.
(on behalf of certain managed funds and
accounts)
By:___________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By:___________________________________
Name:
Title:
▇▇▇▇ ▇▇▇▇▇ STRATEGIC INVESTMENTS, LP
By:___________________________________
Name:
Title:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Co. Group
EMBASSY & CO.
(f/b/o Apex (IDM) CDO I, Ltd.)
By:___________________________________
Name:
Title:
EMBASSY & CO.
(f/b/o ELC (Cayman) Ltd. CDO Series 1999-1)
By:___________________________________
Name:
Title:
▇▇▇▇▇▇▇ & CO.
(f/b/o Mass Mutual High Yield Partners II)
By:___________________________________
Name:
Title:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By:___________________________________
Name:
Title:
▇▇▇▇▇▇ & CO.
(f/b/o Perseus CDO I, Limited)
By:___________________________________
Name:
Title:
▇▇▇▇▇▇ & CO.
(f/b/o SAAR Holdings CDO, Limited)
By:___________________________________
Name:
Title:
▇▇▇▇▇▇ & CO.
(f/b/o Suffield CLO, Limited)
By:___________________________________
Name:
Title:
EMBASSY & CO.
(f/b/▇ ▇▇▇▇▇ CLO Ltd. 2000-1)
By:___________________________________
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:___________________________________
Name:
Title:
GE CAPITAL, CFE INC.
(f/b/o General Electric Capital Corporation)
By:___________________________________
Name:
Title:
Questor Group
QUESTOR PARTNERS FUND II, LP
By: Questor General Partner II, L.P.,
its General Partner
By: Questor Principals II, Inc.,
its General Partner
By:___________________________________
Name:
Title:
QUESTOR SIDE-BY-SIDE PARTNERS II, LP
By: Questor Principals II, Inc.
By:___________________________________
Name:
Title:
QUESTOR SIDE-BY-SIDE PARTNERS II 3(c)(1), LP
By: Questor Principals II, Inc.
By:___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ Group
▇▇▇ ▇▇▇▇▇▇ CLO I, LIMITED
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.,
As Collateral Manager
By:___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ CLO II, LIMITED
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.,
As Collateral Manager
By:___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ SENIOR INCOME TRUST
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
By:___________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ SENIOR LOAN FUND
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
By:___________________________________
Name:
Title:
SCHEDULE A
HOLDERS OF REGISTRABLE COMMON STOCK
-----------------------------------
Number of
Original Holder Shares Owned
--------------- ------------
Genesis Holding Corp (f/b/o JPMorgan Chase Bank) 521,825
▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P. Group
▇▇▇▇▇▇ & Co. (f/b/o AG Capital Funding Partners, L.P.) 90,050
Silver Oak Capital, LLC 908,182
Calder & Co. (f/b/o The Bank of Nova Scotia) 482,382
▇▇▇▇ ▇▇▇▇▇ Strategic Investments, LP 429,507
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Co. Group
Embassy & Co. (f/b/o Apex (IDM) CDO I LTD.) 92,948
Embassy & Co. (f/b/o ELC (Cayman) Ltd. CDO Series 1999-I) 134,961
▇▇▇▇▇▇▇ & Co. (f/b/o Mass Mutual High Yield Partners II) 24,538
Massachusetts Mutual Life Insurance Company 17,443
▇▇▇▇▇▇ & Co. (f/b/o Perseus CDO I, Limited) 122,692
▇▇▇▇▇▇ & Co. (f/b/o SAAR Holdings CDO, Limited) 61,346
▇▇▇▇▇▇ & Co. (f/b/o Suffield CLO, Limited) 69,424
Embassy & Co. (f/b/▇ ▇▇▇▇▇ CLO Ltd. 2000-1) 62,122
Deutsche Bank Trust Company Americas 506,026
GE Capital, CFE Inc. (f/b/o General Electric Capital Corporation) 483,095
Questor Group
Questor Partners Fund II, LP 688,106
Questor Side-by-Side Partners II, LP 32,978
Questor Side-by-Side Partners II(c)(1), LP 12,452
▇▇▇ ▇▇▇▇▇▇ Group
▇▇▇ ▇▇▇▇▇▇ CLO I, Limited 98,153
▇▇▇ ▇▇▇▇▇▇ CLO II, Limited 34,712
▇▇▇ ▇▇▇▇▇▇ Senior Income Trust 183,978
▇▇▇ ▇▇▇▇▇▇ Senior Loan Fund 119,649
SCHEDULE B
NOTICES
-------
If to the Company, to:
GenTek Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel, Treasurer
Tel:
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇., ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Holders, to:
such Holder, at such Holder's address or to such Holder's telephone or
telecopy number reflected in the Company's books and records
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇