Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of April
30, 1993, by and among ▇▇▇▇▇▇ CO., INC., a Wisconsin corporation (the
"Company"), and ANCHOR INDUSTRIES INTERNATIONAL, INC., a Florida corporation
("AII").
WHEREAS, AII and the Company have entered into a Management Agreement,
dated as of the date hereof (the "Management Agreement");
WHEREAS, pursuant to the Management Agreement, AII has been granted an
option (the "Option") exercisable for shares of the common stock, par value $1
per share (the "Common Stock") of the reorganized Company, on the terms and
subject to the conditions set forth in the Management Agreement; and
WHEREAS, pursuant to the Management Agreement, the Company has agreed,
on the terms and subject to the conditions set forth herein, to grant AII
certain registration rights in respect of the Common Stock upon exercise of the
Option.
NOW, THEREFORE, in consideration of the mutual promises and
undertakings herein contained, and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto intending to be
legally bound, do hereby agree as follows:
1. Certain Definitions.
As used in this Agreement the following terms shall have the meanings
set forth below:
(a) "Holder" means AII and any permitted transferee to whom AII
transfers shares of Common Stock purchased upon exercise of the Option or any
portion thereof.
(b) "Registrable Securities" means the Common Stock (as presently
constituted) received as a result of the exercise of the Option, any stock or
other securities into which or for which such Common Stock may hereafter be
changed, converted or exchanged, and any other securities issued to the Holder
of such Common Stock (or such shares into which or for which such shares are so
changed, converted or exchanged) upon any reclassification, share combination,
share subdivision, share dividend, merger, consolidation or similar transactions
or events, provided, that any such securities shall cease to be Registrable
Securities with respect to a proposed offer or sale thereof (i) when 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 the plan of distribution set forth in such
registration statement, (ii) to the extent that such securities, in the opinion
of counsel to the Holder thereof, are permitted to be distributed pursuant to
Rule 144 or (iii) the Registrable Security has been otherwise transferred, the
Company has delivered a new certificate or other evidence of ownership for it
not bearing a legend restricting further transfer, and it may be resold without
subsequent registration under the Securities Act.
(c) "Registration Expenses" means all expenses incident to the
Company's performance of or compliance with its registration obligations set
forth in this Agreement including the following: (i) the fees, disbursements and
expenses of the Company's counsel(s) (United States and foreign) and accountants
in connection with the registration of the Registrable Securities to be disposed
of under the Securities Act; (ii) all expenses in connection with the
preparation, printing and filing of the registration statement, any preliminary
prospectus or final prospectus, any other offering document and amendments and
supplements thereto and the mailing and delivering of copies thereof to any
underwriters and dealers; (iii) the cost of printing or producing any
agreement(s) among underwriters, underwriting agreement(s), and blue sky or
legal investment memoranda, any selling agreements and any other documents in
connection with the offering, sale or delivery of the Registrable Securities to
be disposed of; (iv) all expenses in connection with the qualification of the
Registrable Securities to be disposed of for offering and sale under state
securities laws, including the fees and disbursements of counsel for the
underwriters or the Holder of Registrable Securities in connection with such
qualification and in connection with any blue sky and legal investments surveys;
(v) the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the
Registrable Securities to be disposed of; (vi) transfer agents' depositaries'
and registrars' fees and the fees of any other agent appointed in connection
with such offering; (vii) all security engraving and security printing expenses;
and (viii) all fees and expenses payable in connection with the listing of the
Registrable Securities on each securities exchange or inter-dealer quotation
system on which a class of common equity securities of the Company is then
listed.
(d) "Rule 144" means Rule 144 promulgated under the Securities Act,
or any successor rule to similar effect.
(e) "SEC" means the Securities and Exchange Commission.
(f) "Securities Act" means the Securities Act of 1933, as amended, or
any successor statute.
2. Incidental Registration.
If the Company at any time proposed to register any of its Common
Stock or any other of its equity securities (collectively, "Other Securities")
under the Securities Act (other than pursuant to a registration on Form S-4 or
S-8 or a transaction described in Rule 145 of the Securities Act), whether or
not for sale for its own account, in a manner which would permit registration of
Registrable Securities for sale to the public under the Securities Act, it will
each such time give prompt written notice to the Holder of Registrable
Securities of its intention to do so at least 30 days prior to the anticipated
filing date of the registration statement relating to such registration. Subject
to the restrictions set froth below, such notice shall offer the Holder the
opportunity to include in such registration statement such number of Registrable
Securities as the Holder may request. Upon the written request of the Holder
made within 10 days after the receipt of the Company's notice (which request
shall specify the number of Registrable
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Securities intended to be disposed of), the Company will use all commercially
reasonable efforts to effect the registration under the Securities Act of all
Registrable Securities which the Company has been requested to register by the
Holder, to the extent required to permit the disposition of the Registrable
Securities so requested to be registered, by inclusion of such Registrable
Securities in the registration statement which covers the Other Securities which
the Company proposed to register, provided that:
(a) if, at any time after giving such written notice of its intention
to register any Other 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 the Other Securities, the Company
may, at its election, give written notice of such determination to the Holder
and thereupon the Company shall be relieved of its obligation to register such
Registrable Securities in connection with the registration of such Other
Securities (but not from its obligation to pay Registration Expenses to the
extent incurred in connection therewith as provided in Section 5 hereof);
(b) (i) if the registration referred to in the first sentence of
this Section 2 is to be an underwritten primary registration on behalf of the
Company, and the managing underwriter(s) advise the Company in writing that in
their opinion the number of Registrable Securities requested to be included in
such registration exceeds the number which can be sold in such registration
without adversely affecting the marketability of such offering, the Company
shall include in such registration: (1) first, all securities the Company
proposes to sell for its own account ("Company Securities"), and (2) second, on
a pro rata basis with all other securities requested to be included in such
registration and which securities have been issued under the Company's 1993
Stock Option Plan, up to the full number of Registrable Securities held by the
Holder and requested to be included in such registration in excess of the number
or dollar amount of securities the Company proposes to sell which, in the
opinion of such underwriter(s), can be sold; and (ii) if the registration
referred to in the first sentence of this Section 2 is to be an underwritten
secondary registration on behalf of a holder of the Company's securities, and
the managing underwriter(s) for such offering advise the Company in writing that
in their opinion the number of Registrable Securities requested to be included
in such registration exceeds the number which can be sold in such registration
without adversely affecting the marketability of such offering, the Company
shall include in such registration, on a pro rata basis with all other
securities requested to be included in such registration and which securities
have been issued under the Company's 1993 Stock Option Plan, the amount of such
Registrable Securities held by the Holder and requested to be included in such
registration that exceeds the number or dollar amount of securities the initial
requesting holder proposed to sell which, in the good faith opinion of such
underwriter(s) can be sold.
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3. Holdback Agreements.
(a) Restrictions on Public Sale by Holders of Registrable Securities.
The Holder whose securities are included in a registration statement agrees not
to effect any public sale or distribution of the issue being registered or a
similar security of the Company or any securities convertible into or
exchangeable or exercisable for such securities, including a sale pursuant to
Rule 144 or Rule 144A under the Securities Act, during the ten days prior to,
and during the 90-day period beginning on, the effective date of such
registration statement (except as part of such registration), if and to the
extent requested by the Company in the case of a non-underwritten public
offering or if and to the extent requested by the managing underwriter(s) in the
case of an underwritten public offering.
(b) Registrations on Public Sale by the Company. The Company agrees
not to effect any public sale or distribution of any securities similar to those
being registered, or any securities convertible into or exchangeable or
exercisable for such securities (except pursuant to a registration statement on
Form S-4 or S-8 (or any substitute form that may be adopted by the SEC)) during
the ten days prior to, and during the 90-day period beginning on, the effective
date of any registration statement (except as part of such registration
statement (x) where the Holder of Registrable Securities to be included in such
registration statement consents or (y) where the Holder is participating in such
registration statement pursuant to Section 2 hereof and such registration
statement was filed by the Company) with respect to the sale of securities by
the Company or the commencement of a public distribution of Registrable
Securities pursuant to such registration statement, unless the underwriters
managing the registered public offering otherwise agree.
4. Registration Procedures.
Whenever the Holder has requested that any Registrable Securities be
registered pursuant to Section 2 hereof, the Company will use its best efforts
to effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof and pursuant thereto
the Company will as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on any
form for which the Company then qualifies or which counsel for the Company shall
deem appropriate and which form shall be available for the sale of the
Registrable Securities to be registered thereunder in accordance with the
intended method of distribution thereof, and cause such filed registration
statement to become effective; provided, (i) that at least five days before
filing a registration statement or prospectus or as promptly as practicable
prior to filing any amendments or supplements thereto, the Company will furnish
to one counsel selected by the Holder of the Registrable Securities covered by
such registration statement copies of all such documents proposed to be filed,
which documents will be subject to the review of such counsel, and (ii) that
after the filing of the registration statement, the Company will promptly notify
the Holder of Registrable Securities covered by such registration statement of
comments received from, or any stop order issued or threatened by, the SEC and
take all reasonable actions required to respond
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to such comments or, as the case may be, prevent the entry of such stop order or
to remove it if it has been entered;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a period of
not less than 180 days or such shorter period which will terminate when all
Registrable Securities covered by such registration statement have been sold
(but not before the expiration of the period referred to in subsection 4(3) of
the Securities Act and Rule 174 thereunder, if applicable) and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition;
(c) furnish to the Holder, prior to filing the registration
statement, if requested, copies of such registration statement as proposed to be
filed, and thereafter furnish to the Holder such number of copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits thereto), the prospectus included in such registration
statement (including each preliminary prospectus), and such other documents as
the holder may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by the Holder, and without charge to the Holder;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
the Holder reasonably requests and do any and all other acts and things which
may be reasonably necessary to enable the Holder to consummate the disposition
in such jurisdictions of the Registrable Securities owned by the Holder;
provided that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this subsection, (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process in any such
jurisdiction;
(e) use its best efforts to cause such Registrable Securities to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Company to
enable the Holder thereof to consummate the disposition of such Registrable
Securities; provided, that the Company will not be required to (i) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this subsection, (ii) subject itself to taxation in
any such jurisdiction, or (iii) consent to general service of process in any
such jurisdiction;
(f) notify the Holder of Registrable Securities, at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the occurrence of an event requiring the preparation of a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
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stated therein or necessary to make the statements therein not misleading and
promptly make available to the Holder any such supplement or amendment;
(g) enter into and perform customary agreements (including an
underwriting agreement, in customary form with the managing underwriter(s), if
any) and take such other actions as are reasonably required in order to expedite
or facilitate the disposition of such Registrable Securities;
(h) make available for inspection by the Holder of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other professional
retained by the Holder or underwriter (collectively, the "Inspectors"), all
financial and other records, pertinent corporate documents, and properties of
the Company (collectively, the "Records") as shall be reasonably necessary to
enable them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any such Inspectors in connection with such registration statement.
Records which the Company determines, in good faith, to be confidential and
which it notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) in the judgment of counsel to the Company the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in
such registration statement or (ii) the release of such Records is order
pursuant to a subpoena or other order from a court of competent jurisdiction.
The Holder of Registrable Securities agrees that information obtained by it as a
result of such inspections shall be deemed confidential and shall not be used by
it as the basis for any market transactions in the securities of the Company
unless and until such is made generally available to the public. The Holder of
Registrable Securities further agrees that it will, upon leasing that disclosure
of such Record is sought in a court of competent jurisdiction, give notice to
the Company and allow the Company, at its expense, to undertake appropriate
action to prevent disclosure of the Records deemed confidential;
(i) if such sale is pursuant to an underwritten offering, use its
best efforts to obtain a comfort letter or comfort letters from the Company's
independent public accountants in customary form and covering such matters of
the type customarily covered by comfort letters as the Holder of Registrable
Securities or the managing underwriter reasonably request;
(j) furnish, at the Company's expense, unlegended certificates
representing ownership of the Registrable Securities being sold in such
denominations as shall be requested and instruct the transfer agent to release
any stop transfer orders with respect to the Registrable Securities being sold;
(k) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make generally available to its security
holders, as soon as reasonably practicable, an earnings statement covering a
period of 12 months, beginning within three months after the effective date of
the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act; and
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(l) use its best efforts to cause all such Registrable Securities to
be listed on each securities exchange on which similar securities issued by the
Company are then listed, provided that the applicable listing requirements are
satisfied.
The Holder of Registrable Securities shall promptly furnish in writing
to the Company such information regarding the distribution of the Registrable
Securities as the Company may from time to time reasonably request and such
other information as may be legally required in connection with such
registration.
The Holder agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in subsection 4(f) hereof, the
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to the registration statement covering such Registrable Securities until the
Holder's receipt of copies of the supplemented or amended prospectus
contemplated by subsection 4(f) hereof and, if so directed by the Company, the
Holder will deliver to the Company all copies, other than permanent file copies
then in such Holder's possession,of the most recent prospectus covering such
Registrable Securities at the time of receipt of such notice. If the Company
shall give such notice, the Company shall extend the period during which such
registration statement shall be maintained effective (including the period
referred to in subsection 4(b) hereof) by the number of days during the period
from and including the date of the giving of notice pursuant to subsection 4(f)
hereof to the date when the Company shall make available to the Holder of
Registrable Securities covered by such registration statement a prospectus
supplemented or amended to conform with the requirements of subsection 4(f)
hereof.
5. Expenses.
The Company will pay all Registration Expenses in connection with each
registration of the Holder's Registrable Securities pursuant to this Agreement,
except that with respect to any such registration the Company shall not be
obligated to pay underwriting discounts or commissions or transfer taxes, if
any, relating to the sale or disposition of the Holders' Registrable Securities;
provided, that, in no event shall the Company be obligated to pay the fees and
expenses of more than one counsel for the Holder and any officer of the Company
selling equity securities of the Company (which were granted or purchased
pursuant to the Company's 1993 Stock Option Plan) in such registration.
6. Inconsistent Agreements.
The Company agrees that any agreement entered into after the date of
this Agreement pursuant to which the Company issues or agrees to issue any
privately placed equity securities shall contain (i) a provision under which
holders of such securities agree not to effect any public sale or distribution
of any such securities during the period referred to in Section 3(b), including
any sale pursuant to Rule 144 under the Securities Act (except as part of a
registration described in such Section 3(b), if permitted); and (ii) no terms or
provisions inconsistent with any term or provision of this Agreement.
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7. Indemnification and Contribution.
(a) In the case of each offering of Registrable Securities made
pursuant to this Agreement, the Company agrees to indemnify and hold harmless
the Holder of Registrable Securities, its officers and directors, each
underwriter of Registrable Securities so offered and each person, if any, who
controls any of the foregoing persons within the meaning of the Securities Act,
from and against any and all claims, liabilities, losses, damages, expenses and
judgments, joint or several, to which they or any of them may become subject,
under the Securities Act or otherwise, including any amount paid in settlement
of any litigation commenced or threatened, and shall promptly reimburse them, as
and when incurred, for any legal or other fees and expenses incurred by them in
connection with investigating any claims and defending any actions, insofar as
such losses, claims, damages, liabilities or actions shall arise out of, or
shall be based upon, any untrue statement or alleged untrue statement of a
material fact contained in the registration statement (or in any preliminary or
final prospectus included therein) or in any offering memorandum or other
offering document relating to the offering and sale of such Registrable
Securities, or any amendment thereof or supplement thereto, or in any document
incorporated by reference therein, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or shall arise out of or be based upon any
violation or alleged violation by the Company of the Securities Act, any blue
sky laws, securities laws or other applicable laws of any state or country in
which the Registrable Securities are offered and relating to action or inaction
required of the Company in connection with such offering; provided, however,
that the Company shall not be liable to the Holder of Registrable Securities in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement, or any omission,if such statement or omission shall have been made in
reliance upon and in conformity with information relating to the Holder
furnished to the Company in writing by or on behalf of the Holder specifically
for use in the preparation of the registration statement (or in any preliminary
or final prospectus included therein), offering memorandum or other offering
document, or any amendment thereof or supplement thereto. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Holder of Registrable Securities and shall survive the transfer of
such securities. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to the Holder of Registrable
Securities, its officers and directors, underwriters of the Registrable
Securities or any controlling person of the foregoing.
(b) In the case of each offering made pursuant to this Agreement the
Holder of Registrable Securities included in such offering, by exercising its
registration rights hereunder, agrees to indemnify and hold harmless the
Company, its officers and directors and each person, if any, who controls any of
the foregoing within the meaning of the Securities Act (and if requested by the
underwriters, each underwriter who participates in the offering and each person,
if any, who controls any such underwriter within the meaning of the Securities
Act), from and against any and all claims, liabilities, losses, damages,
expenses and judgments, joint or several, to which they or any of them may
become subject, under the Securities Act or otherwise, including any amount paid
in settlement of any litigation commenced or threatened,
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and shall promptly reimburse them, as and when incurred, for any legal or other
expenses incurred by them in connection with investigating any claims and
defending any actions, insofar as any such losses, claims, damages, liabilities
or actions shall arise out of, or shall be based upon, any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement (or in any preliminary or final prospectus included therein) or in any
offering memorandum or other offering document relating to the offering and sale
of such Registrable Securities, or any amendment thereof or supplement thereto,
or any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, but in each
case only to the extent that such untrue statement of a material fact is
contained in, or such material fact is omitted from, information relating to the
Holder furnished in writing to the Company by or on behalf of the Holder
specifically for use in the preparation of such registration statement (or in
any preliminary or final prospectus included therein), offering memorandum or
other offering document. The foregoing indemnity is in addition to any liability
which the Holder may otherwise have to the Company, or any of its directors,
officers or controlling persons; provided, however, that this indemnity does not
apply to any loss,liability, claim, damage or expense arising out of or based
upon any untrue statement or alleged untrue statement or omission or alleged
omission in any preliminary prospectus if a copy of a prospectus was not sent or
given by or on behalf of an underwriter to such person asserting such loss,
claim, damage, liability or action at or prior to the written confirmation of
the sale of the Registrable Securities as required by the Securities Act and
such untrue statement or omission had been corrected in such prospectus. In no
event shall the liability of the Holder hereunder be greater in amount than the
dollar amount of the net proceeds received by it upon the sale of the
Registrable Securities pursuant to such offering.
(c) Procedure for Indemnification. Each party indemnified under
paragraph (a) or (b) of this Section 7 shall, promptly after receipt of notice
of any claim or the commencement of any action against such indemnified party in
respect of which indemnity may be sought, notify the indemnifying party in
writing of the claim or the commencement thereof; provided, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party on account of the indemnity agreement contained
in paragraph (a) or (b) of this Section 7, unless the indemnifying party was
prejudiced by such failure, and in no event shall relieve the indemnifying party
from any other liability which it may have to such indemnified party. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein, and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, that the Holder
of Registrable Securities, its officers and directors, if any, and each person,
if any, who controls the Holder within the meaning of the Securities Act, shall
have the right to employ separate counsel to represent them if, in the
reasonable judgment of the Holder or such other person, it is advisable for them
to be
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represented by separate counsel, and in that event the fees and expenses of such
separate counsel shall be paid by the Company. If any Holder of Registrable
Securities, its officers and directors, and its controlling person employ such
separate counsel they will not enter into any settlement agreement which is not
approved by the Company, such approval not to be unreasonably withheld. If the
indemnifying party so assumes the defense thereof, it may not agree to any
settlement of any such claim or action as the result of which any remedy or
relief, other than monetary damages for which the indemnifying party shall be
responsible hereunder, shall be applied to or against the indemnified party. If
the indemnifying party does not assume the defense thereof, it shall be bound by
any settlement to which the indemnified party agrees, irrespective of whether
the indemnifying party consents thereto. In any action hereunder as to which the
indemnifying party has assumed the defense thereof with counsel satisfactory to
the indemnified party, the indemnified party shall continue to be entitled to
participate in the defense thereof, with counsel of its own choice, but, except
as set forth above, the indemnifying party shall not be obligated hereunder to
reimburse the indemnified party for the costs thereof.
If the indemnification provided for in this Section 7 shall for any
reason be unavailable to an indemnified party in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, in such
proportion as shall be appropriate to reflect the relative fault of the
indemnifying party on the one hand and the indemnified party on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
indemnifying party on the one hand or the indemnified party on the other, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission, but not by
reference to any indemnified party's stock ownership in the Company. In no
event, however, shall the Holder of Registrable Securities be required to
contribute in excess of the amount of the net proceeds received by the Holder in
connection with the sale of Registrable Securities in the offering which is the
subject of such loss, claim, damage or liability. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this paragraph shall be deemed
to include, for purposes of this paragraph, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. No person guilty or 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.
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8. Rule 144.
The Company covenants that it will use all commercial reasonably
efforts to file any reports required to be filed by it under the Securities Act
and the Securities Exchange Act of 1934 and the Rules and Regulations
thereunder, all to the extent required, form 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
similar rule or regulation hereafter adopted by the Commission. Upon the request
of the Holder of Registrable Securities, the Company will deliver to the Holder
a written statement as to whether it has filed such information.
9. Miscellaneous.
(a) Injunctions. Irreparable damage would occur in the event that
any provision of this Agreement is not performed in accordance with its specific
terms or was otherwise breached. Therefore, the parties hereto shall be entitled
to an injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof in any
court having jurisdiction, such remedy being in addition to any other remedy to
which they may be entitled at law or in equity.
(b) Severability. If any term or provision of this Agreement is held
by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms and provisions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term or provision.
(c) Further Assurances. Subject to the specific terms of this
Agreement, each of the parties hereto shall make, execute, acknowledge and
deliver such other instruments and documents, and take all such other actions,
as may be reasonably required in order to effectuate the purposes of this
Agreement and to consummate the transactions contemplated hereby.
(d) Waivers, Etc. No failure or delay on the part of either party
hereto in exercising any power or right hereunder shall operate as a wavier
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. No modification or wavier of any provision of this Agreement nor
consent to any departure therefrom shall in any event be effective unless the
same shall be in writing, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given.
(e) Entire Agreement. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof. The
sections headings contained in this
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Agreement are solely for the purpose of reference, and shall not in any way
affect the meaning or interpretation of this Agreement.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which
together shall be one and the same instrument.
(g) Notices. All notices, consents, requests, instructions,
approvals and other communications provided for herein shall be validly given,
made or served, if in writing and delivered personally, by facsimile or sent by
registered mail, postage prepaid as follows:
If to the Company, to:
▇▇▇▇▇▇ Co., Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to AII, to:
Anchor Industries, International, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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or such other address as any party may, from time to time, designate in a
written notice in a like manner. Notice given by facsimile shall be deemed
delivered on the business day after it is received by the recipient. Notice
given by mail as set out above shall be deemed delivered five calendar days
after the date the same is mailed.
(h) Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of New York applicable to
contracts made and to be performed in such state, without giving effect to the
principles of conflicts of laws.
(i) Assignment. AII may not assign this Agreement or its rights
hereunder without the prior written consent of the Company, except that it may
be freely assigned without such consent (but with prior written notice) to
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or to a corporation or other entity which is owned or
controlled, directly or indirectly, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇. This Agreement may
not be assigned by the Company without the prior written consent of AII other
than to the Company's successor in the case of a merger or consolidation
involving the Company. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. Nothing in this paragraph 9(i) shall be deemed to supersede the
Management Agreement as it relates to transfers or assignments of the Option or
the Registrable Securities.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their respective duly authorized officer as of the
date first above written.
▇▇▇▇▇▇ CO., INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name:
--------------------------
Title: Chairman
-------------------------
ANCHOR INDUSTRIES
INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name:
----------------------------
Title: Chairman, President and CEO
---------------------------
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