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EXHIBIT 10.3
EXECUTION COPY
MS ACQUISITION CORP.
REGISTRATION RIGHTS AGREEMENT
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TABLE OF CONTENTS
Page
RECITALS .................................................................1
ARTICLE I
DEFINITIONS......................................................2
1.1 Defined Terms in Stockholders Agreement.................2
1.2 Definitions.............................................2
1.3 Cross-References........................................4
ARTICLE II
DEMAND REGISTRATIONS.............................................5
2.1 Requests for Registration...............................5
2.2 Long-Form Registrations.................................6
2.3 Short-Form Registrations................................6
2.4 Effective Registration Statement........................6
2.5 Priority on Demand Registrations........................7
2.6 Selection of Underwriters...............................8
2.7 Black-Out Rights and Postponement.......................8
ARTICLE III
PIGGYBACK REGISTRATIONS..........................................9
3.1 Right to Piggyback......................................9
3.2 Piggyback Expenses......................................9
3.3 Priority on Primary Registrations.......................9
3.4 Priority on Secondary Registrations....................10
ARTICLE IV...............................................................11
HOLDBACK AGREEMENTS.............................................11
4.1 Holdback...............................................11
4.2 Company Holdback.......................................11
ARTICLE V................................................................11
REGISTRATION PROCEDURES.........................................11
ARTICLE VI...............................................................15
REGISTRATION EXPENSES...........................................15
6.1 Fees Generally.........................................15
6.2 Counsel Fees...........................................16
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Page
ARTICLE VII..............................................................16
UNDERWRITTEN OFFERINGS..........................................16
7.1 Demand Underwritten Offerings..........................16
7.2 Incidental Underwritten Offerings......................16
ARTICLE VIII.............................................................17
INDEMNIFICATION.................................................17
8.1 Indemnification by the Company.........................17
8.2 Indemnification by a Selling Stockholder...............18
8.3 Indemnification Procedure..............................19
8.4 Underwriting Agreement.................................20
8.5 Contribution...........................................20
8.6 Periodic Payments......................................21
ARTICLE IX...............................................................21
RULE 144 .......................................................21
ARTICLE X................................................................21
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS.....................21
ARTICLE XI...............................................................22
MISCELLANEOUS...................................................22
11.1 No Inconsistent Agreements.............................22
11.2 Adjustments Affecting Registrable Securities...........22
11.3 Specific Performance...................................22
11.4 Actions Taken; Amendments and Waivers..................22
11.5 Successors and Assigns.................................23
11.6 Notices................................................23
11.7 Headings. ............................................23
11.8 Gender.................................................24
11.9 Invalid Provisions.....................................24
11.10 Governing Law..........................................24
11.11 Counterparts...........................................24
11.12 Consent to Jurisdiction and Service of Process.........24
11.13 Waiver of Jury Trial...................................25
Exhibit A - Original Registration Rights Agreement
Exhibit B - Form of Registration Rights Joinder Agreement
Exhibit C - Waiver Agreement
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REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of April 9,
1998 by and among, MS Acquisition Corp., a Delaware corporation (the "Company"),
each of the Persons whose name appears under the heading "Former Sofedit
Investor" on the signature pages hereto (individually, a "Former Sofedit
Investor", and collectively, the "Former Sofedit Investors"), each of the
Persons whose name appears under the heading "Former Sofedit Institutional
Investor" on the signature pages hereto (individually, a "Former Sofedit
Institutional Investor", and collectively, the "Former Sofedit Institutional
Investors"), Citicorp Venture Capital, Ltd., a New York corporation ("CVC"), and
each of the Persons whose name appears under the heading "CVC Co-investors" on
the signature pages hereto (together with CVC, the "CVC Investors", and
individually a "CVC Investor"), The Berkshire Fund, a Massachusetts limited
partnership ("Berkshire"), and each of the individuals listed under the heading
"Berkshire Group" on the signature pages hereto (individually, a "Berkshire
Group Member" and collectively, with Berkshire, the "Berkshire Group"), The
Prudential Insurance Company of America, a New Jersey mutual insurance company
("Prudential"), Pruco Life Insurance Company, an Arizona corporation ("Pruco"),
the various retirement systems of the State of Michigan listed on the signature
pages hereto under the heading "State of Michigan" (the "State of Michigan"; and
together with Berkshire, the Berkshire Group, Prudential and Pruco, the
"Institutional Investors"), each of the individuals whose name appears under the
heading "Former Management Group" on the signature pages hereto (individually, a
"Former Management Group Member" and collectively, the "Former Management
Group"), and each of the individuals whose name appears under the heading
"Management Group" on the signature pages hereto (individually, a "Management
Group Member" and collectively, the "Management Group". Capitalized terms used
and not otherwise defined herein have the respective meanings ascribed thereto
in Article I.
RECITALS
WHEREAS, the Company has executed and delivered that certain
Registration Rights Agreement dated August 13, 1996 among the Company and the
parties named on the signature pages thereto with respect to the capital stock
of the Company (the "Original Registration Rights Agreement"), a copy of which
is attached hereto as Exhibit A;
WHEREAS, the Original Registration Rights Agreement remains in
full force and effect as of the date hereof, subject to the waiver of certain
rights thereunder by certain of the parties hereto pursuant to a waiver
agreement (the "Waiver Agreement"), a copy of which is attached hereto as
Exhibit B.
WHEREAS, contemporaneously with the execution and delivery of
this Agreement, the parties hereto are executing and delivering a Stockholders
Agreement among the parties hereto and dated the date hereof (as amended,
modified or supplemented from time to time, the "Stockholders Agreement"), and
in connection therewith, the Company has agreed to provide the other parties
hereto with the registration rights set forth in this Agreement;
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NOW THEREFORE, in connection with the Stockholders Agreement
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINED TERMS IN STOCKHOLDERS AGREEMENT.
Unless otherwise defined herein, defined terms used in this
Agreement shall have the meanings set forth in the Stockholders Agreement.
1.2 DEFINITIONS.
The following capitalized terms, when used in this Agreement,
have the respective meanings set forth below (such definitions to be equally
applicable to both singular and plural forms of the terms defined):
"Additional Stockholder" means any Person who has executed a
Joinder Agreement pursuant to the Stockholders Agreement, and its direct and
indirect Permitted Transferees, so long as any such Person shall hold (either
directly or indirectly) Registrable Securities, and only to the extent that (i)
the Company has granted such person registration rights as a Stockholder
hereunder and (ii) such Person has executed a Registration Rights Joinder
Agreement.
"Commission" means the Securities and Exchange Commission and
any other similar or successor agency of the federal government administering
the Securities Act or the Exchange Act.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations of the Commission
thereunder.
"Initial Public Offering" means the first time a registration
statement filed under the Securities Act with the Commission respecting an
offering, whether primary or secondary, of Common Stock of the Company (or
securities convertible, exercisable or exchangeable for or into Common Stock of
the Company or rights to acquire Common Stock of the Company or such
securities), which is underwritten on a firmly committed basis, is declared
effective and the securities so registered are issued and sold.
"Registrable Securities" means, at any time, the shares of
Common Stock then issued and outstanding or which are issuable upon conversion,
exercise or exchange of the Series A Preferred Stock, the Series B Preferred
Stock, the Options or any other Equity
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Equivalents and any securities into which such Common Stock shall have been
changed or any securities resulting from any reclassification or
recapitalization of such Common Stock; provided, that "Registrable Securities"
shall not include any shares of Common Stock obtained or transferred pursuant to
an effective registration statement under the Securities Act or in a Rule 144
Transaction, and provided, further, that "Registrable Securities" shall not
include any shares of Common Stock which are held by a Person who is not a
Stockholder.
"Registration Rights Joinder Agreement" means the Registration
Rights Joinder Agreement in the form attached hereto as Exhibit C.
"Required CVC Stockholders" means, as of the date of any
determination thereof, CVC and CVC Stockholders that hold Registrable Securities
representing at such time at least a majority (by number of shares) of the
Registrable Securities, on a fully diluted basis, held by all CVC Stockholders.
"Required Institutional Stockholders" means, as of the date of
any determination thereof, Institutional Stockholders that hold Registrable
Securities representing at such time at least a majority (by number of shares)
of the Registrable Securities, on a fully diluted basis, held by all
Institutional Stockholders.
"Required Sofedit Stockholders" means, as of the date of any
determination thereof, the Sofedit Stockholders that hold Registrable Securities
representing at such time at least a majority (by number of shares) of the
Registrable Securities, on a fully diluted basis, held by all Sofedit
Stockholders.
"Required Sofedit Institutional Stockholders" means, as of the
date of any determination thereof, the Sofedit Institutional Stockholders that
hold Registrable Securities representing at such time at least a majority (by
number of shares) of the Registrable Securities, on a fully diluted basis, held
by all Sofedit Institutional Stockholders.
"Rule 144 Transaction" means a transfer of Restricted
Securities (A) complying with Rule 144 under the Securities Act as such Rule is
in effect on the date of such transfer (but not including a sale other than
pursuant to a "brokers transaction" as defined in clauses (1) and (2) of
paragraph (g) of such Rule as in effect on the date hereof) and (B) occurring at
a time when Restricted Securities are registered pursuant to Section 12 of the
Exchange Act (or any successor to such Section).
"Stockholders" means the Sofedit Stockholders, Sofedit
Institutional Stockholders, CVC Stockholders, Institutional Stockholders, the
Former Management Stockholders, the Management Stockholders, the Additional
Stockholders and each other Person party to the Original Registration Rights
Agreement and any transferee of any of the foregoing persons who has acquired
Registrable Securities in accordance with the Stockholders Agreement and who has
executed a Registration Rights Joinder Agreement.
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1.3 CROSS-REFERENCES.
The following defined terms, when used in this Agreement,
shall have the meaning ascribed to them in the corresponding Sections of this
Agreement listed below:
"Berkshire" -- Preamble
"Berkshire Group" -- Preamble
"Berkshire Group Member" -- Preamble
"Black-Out Notice" -- Section 2.7(b)
"Company" -- Preamble
"Controlling Person" -- Section 8.1
"CVC" -- Preamble
"CVC Co-investors" -- Preamble
"CVC Investor" -- Preamble
"Demand Registrations" -- Section 2.1
"Former Management Group" -- Preamble
"Former Management Group Member" -- Preamble
"Former Sofedit Institutional Investors" -- Preamble
"Former Sofedit Investor" -- Preamble
"Institutional Investors" -- Preamble
"Long-Form Registrations" -- Section 2.1
"Management Group" -- Preamble
"Management Group Member" -- Preamble
"Original Registration Rights Agreement" -- Recitals
"Piggyback Holders" -- Section 3.1
"Piggyback Registration" -- Section 3.1
"Pruco" -- Preamble
"Prudential" -- Preamble
"Registration Expenses" -- Section 6.1
"Requesting Investor" -- Section 2.1(a)
"Short-Form Registrations" -- Section 2.1
"State of Michigan" -- Preamble
"Stockholders Agreement" -- Recitals
"Waiver Agreement" -- Recitals
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ARTICLE II
DEMAND REGISTRATIONS
2.1 REQUESTS FOR REGISTRATION.
(a) As provided in Sections 2.2 and 2.3, from and after the
date that is ninety-one (91) days after the closing of an Initial Public
Offering, the Required Sofedit Stockholders, the Required Sofedit Institutional
Stockholders, the Required CVC Stockholders or the Required Institutional
Stockholders (each of which being, a "Requesting Investor") shall be entitled to
request registration under the Securities Act of all or part of their
Registrable Securities (i) on Form S-1 or any similar long-form registration
("Long-Form Registrations"), and (ii) on Form S-2 or S-3 or any similar
short-form registration ("Short-Form Registrations") if the Company qualifies to
use such short form; provided, however, that (a) prior to the date that is one
(1) year and ninety-one (91) days after the closing of an Initial Public
Offering, the Sofedit Institutional Stockholders shall not be entitled to
request registration as a Requesting Investor with respect to more than
thirty-five percent (35%) of the Registrable Securities held by the Sofedit
Institutional Stockholders as a group on the date hereof and (b) prior to the
date that is two (2) years and ninety-one (91) days after the closing of an
Initial Public Offering, the Sofedit Institutional Stockholders shall not be
entitled to request registration as a Requesting Investor with respect to more
than seventy percent (70%) of the Registrable Securities held by the Sofedit
Institutional Stockholders on the date hereof; provided, further, that the above
proviso shall in no way limit the rights of the Sofedit Institutional
Stockholders under Article III or the rights of the Sofedit Institutional
Stockholders to request inclusion in any Demand Registration requested by the
Sofedit Stockholders or the CVC Stockholders under this Section 2.1(a). Within
ten (10) days after receipt of any such request, the Company will give written
notice of such request to all Stockholders holding Registrable Securities.
Thereafter, the Company will use all reasonable efforts to effect the
registration under the Securities Act on the form requested by the applicable
Requesting Investors and will include in such registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein by any Stockholder within thirty (30) days after the receipt
of the Company's notice, subject to the provisions of Section 2.5. All
registrations requested pursuant to this Section 2.1 are referred to herein as
"Demand Registrations."
(b) Any Requesting Investor that requests a Demand
Registration under this Article II may, at any time prior to the effective date
of the registration statement relating to such registration, revoke such request
by providing written notice to the Company; provided, however, that
notwithstanding such revocation, such Demand Registration shall be deemed a
request for purposes of Section 2.2 or 2.4 unless, after consultation with the
Company and any proposed underwriter, the Requesting Investor in good faith
determines that the Registrable Securities that it has requested to be
registered would not be sold pursuant to such Demand Registration within a
reasonable amount of time or at a price acceptable to such Requesting Investor.
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(c) Any request for a Demand Registration pursuant to this
Article II shall specify the number of shares of Registrable Securities proposed
to be sold by the Requesting Investor and the intended method of disposition
thereof.
(d) Notwithstanding the provisions of Section 2.1(a), (i) the
Required Sofedit Stockholders or (ii) the Required CVC Stockholders may request
that the Company effect an Initial Public Offering with gross proceeds to the
Company in the amount requested by the Required Sofedit Stockholders or the
Required CVC Stockholders, as the case may be, and the Company shall use all
reasonable efforts to effect such Initial Public Offering within ninety (90)
days after receipt of such request. No such request shall count toward the limit
on Long-Form Registrations provided in Section 2.2.
2.2 LONG-FORM REGISTRATIONS.
The Required Sofedit Stockholders will be entitled to request
pursuant to this Article II up to three (3) Long-Form Registrations, the
Required Sofedit Institutional Stockholders will be entitled to request pursuant
to this Article II up to three (3) Long-Form Registrations, the Required CVC
Stockholders will be entitled to request pursuant to this Article II up to three
(3) Long-Form Registrations, and the Required Institutional Stockholders will be
entitled to request pursuant to this Article II one (1) Long-Form Registration.
The Company will pay all Registration Expenses in connection with any such
Long-Form Registrations. All Long-Form Registrations (unless otherwise requested
by the relevant Requesting Investor) shall be underwritten registrations.
2.3 SHORT-FORM REGISTRATIONS.
In addition to the Long-Form Registrations provided pursuant
to Section 2.2, each of the Required Sofedit Stockholders, the Required Sofedit
Institutional Stockholders and the Required CVC Stockholders will be entitled to
request an unlimited number of Short-Form Registrations, and the Required
Institutional Stockholders will be entitled to request three (3) Short-Form
Registrations. The Company will pay all Registration Expenses in connection with
any Short-Form Registrations. Demand Registrations will be Short-Form
Registrations whenever the Company is qualified to use any applicable short
form. Once the Company has become subject to the reporting requirements of the
Exchange Act, the Company will use its reasonable best efforts to make
Short-Form Registrations available for the sale of Registrable Securities.
2.4 EFFECTIVE REGISTRATION STATEMENT.
No Demand Registration shall be deemed to have been effected
for purposes of Section 2.2:
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(i) unless a registration statement with respect thereto has
become effective;
(ii) if, after it has become effective, any stop order,
injunction or other order or requirement of the Commission or
other governmental agency or court for any reason, affecting
any of the securities covered by such registration statement,
is issued or threatened by the Commission or other
governmental agency or court;
(iii) if the Company delivers a Black-Out Notice with respect
to such requested registration;
(iv) if the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection
with such registration are not satisfied by reason of a
failure by or inability of the Company to satisfy any of such
conditions, or the occurrence of an event outside the
reasonable control of the relevant Requesting Investor;
(v) the revocation notice described in the proviso to Section
2.1(b) has been delivered by the Requesting Investor; or
(vi) if the Requesting Investor is not able to register and
sell at least ninety percent (90%) of the amount of
Registrable Securities which were requested to be included by
it in such registration;
provided that the Company will pay all Registration Expenses in connection with
any registration if pursuant to this Section 2.4 the registration is deemed not
to have been effected.
2.5 PRIORITY ON DEMAND REGISTRATIONS.
(a) The Company will not include in any Demand Registration
any securities which are not Registrable Securities without the written consent
of the Required Sofedit Stockholders (if the Required Sofedit Stockholders have
requested such Demand Registration), the Required Sofedit Institutional
Stockholders (if the Required Sofedit Institutional Stockholders have requested
such Demand Registration), the Required CVC Stockholders (if the Required CVC
Stockholders have requested such Demand Registration) or the Required
Institutional Stockholders (if the Required Institutional Stockholders have
requested such Demand Registration).
(b) If the Requesting Investors and other holders of
Registrable Securities request Registrable Securities to be included in a Demand
Registration that is an underwritten
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offering and the managing underwriters advise the Company in writing that in
their opinion the number of Registrable Securities requested to be included
exceeds the number of Registrable Securities that can be sold in such offering
within a price range acceptable to the Requesting Investors who have made such
Demand Registration, then the Company will include any securities to be sold in
such Demand Registration in the following order and priority:
(A) (i) first, the Registrable Securities owned by the
Requesting Investors that have requested such
registration, provided, that if the managing
underwriters determine in good faith that a lower
number of Registrable Securities should be included,
then only that lower number of Registrable Securities
requested to be included by the Requesting Investors
shall be included in such registration, and the
Requesting Investors shall participate in the
registration pro rata based upon their total
ownership, on a fully diluted basis, of Registrable
Securities, (ii) second, the number of Registrable
Securities requested to be included by other
Stockholders (whether requested pursuant to this
Agreement or the Original Registration Rights
Agreement), which, in the opinion of such
underwriters, can be sold, pro rata among the
respective holders based upon their total ownership,
on a fully diluted basis, of Registrable Securities
and provided, further, that if the managing
underwriters determine in good faith that a lower
number of Registrable Securities held by Management
Stockholders (as defined herein and as defined in the
Original Registration Rights Agreement) and/or
Additional Stockholders (as defined herein and as
defined in the Original Registration Rights
Agreement) than such pro rata portion should be
included, then such lower number shall be included
and, as a result thereof, a greater number of
Registrable Securities owned by the other
Stockholders may be sold; (iii) third, the securities
the Company proposes to sell and (iv) fourth, any
securities other than Registrable Securities to be
sold by Persons other than the Company included
pursuant to Section 2.5(a) hereof.
(B) Any Person other than Stockholders including any
securities in such registration pursuant to Article
II hereof must pay its share of the Registration
Expenses as provided in Article VI hereof.
2.6 SELECTION OF UNDERWRITERS.
The Requesting Investors that have requested such registration
will have the right to select the underwriters and the managing underwriter to
administer any Demand Registration (which underwriters and managing underwriter
shall be reasonably acceptable to the Company).
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2.7 BLACK-OUT RIGHTS AND POSTPONEMENT.
(a) The Company shall not be required to provide a Demand
Registration if the Company, within the 90-day period preceding the date of a
request for a Demand Registration, has effected a registration of securities in
which the Requesting Investors were entitled to participate without cutback
pursuant to Demand Registration rights under Article II hereof or Piggyback
Registration rights under Article III hereof.
(b) The Company may, upon written notice (a "Black-Out
Notice") to each Requesting Investor requesting a Demand Registration, require
such Requesting Investor to withdraw such Demand Registration upon the good
faith determination by the Company that such postponement is necessary (i) to
avoid disclosure of material non-public information or (ii) as a result of a
pending material financing or acquisition transaction. In each case, each of the
Requesting Investors may not request another Demand Registration for a period of
up to sixty (60) days, as specified by the Company in such Black-Out Notice. The
Company may only give a Black-Out Notice where the giving of such notice has
been specifically approved by the Company's Board of Directors. Upon receipt of
a Black-Out Notice, the Demand Registration shall be deemed to be rescinded and
retracted and shall not be counted as a Demand Registration for any purpose. The
Company may not deliver more than one Black-Out Notice in any twelve-month
period.
ARTICLE III
PIGGYBACK REGISTRATIONS
3.1 RIGHT TO PIGGYBACK.
Whenever the Company proposes (other than pursuant to a Demand
Registration or an Initial Public Offering (unless otherwise agreed by the
Company)) to register any of its equity securities under the Securities Act
(whether for the Company's own account (other than on Forms S-4 or S-8 or any
successor forms), or for the account of any other Person) (a "Piggyback
Registration"), the Company will give prompt written notice to each Stockholder
(the "Piggyback Holders") of its intention to effect such a registration, and
such notice shall offer the Piggyback Holders the opportunity to register on the
same terms and conditions such number of shares of Registrable Securities as
such Piggyback Holder may request. The Company will include in such registration
all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 30 days after the receipt by such
Piggyback Holder of the Company's notice, subject to the provisions of Sections
3.3 and 3.4.
3.2 PIGGYBACK EXPENSES.
The Registration Expenses of the holders of Registrable
Securities will be paid by the Company in all Piggyback Registrations.
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3.3 PRIORITY ON PRIMARY REGISTRATIONS.
If a Piggyback Registration is an underwritten primary
registration on behalf of the Company, and the managing underwriters advise the
Company in writing that in their opinion the number of securities requested to
be included in such registration are such that the success of the offering would
be materially and adversely affected, the Company will include any securities to
be sold in such registration in the following order: (i) first, the securities
the Company proposes to sell, (ii) second, the Registrable Securities requested
to be included in such registration by the Piggyback Holders, provided that, if
the managing underwriters in good faith determine that a lower number of
Registrable Securities should be included, then the Company shall be required to
include in such registration only that lower number of Registrable Securities,
and the Piggyback Holders shall participate in the registration pro rata based
upon their total ownership, on a fully diluted basis, of Registrable Securities,
provided, further, that if the managing underwriters determine in good faith
that a lower number of Registrable Securities held by Management Stockholders
(as defined herein and as defined in the Original Registration Rights Agreement)
and/or Additional Stockholders (as defined herein and as defined in the Original
Registration Rights Agreement) than such pro rata portion should be included,
then such lower number shall be included and, as a result thereof, a greater
number of Registrable Securities owned by the other Stockholders shall be
included and (iii) third, other securities requested to be included in such
registration.
3.4 PRIORITY ON SECONDARY REGISTRATIONS.
If a Piggyback Registration is an underwritten secondary
registration on behalf of holders of the Company's securities and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration are such that the
success of the offering would be materially and adversely affected, the Company
will include any securities to be sold in such registration in the following
order: (i) first, the securities of such holders, (ii) second, the Registrable
Securities requested to be included in such registration by the Piggyback
Holders pursuant to Section 3.1 hereof, provided that, if the managing
underwriters in good faith determine that a lower number of Registrable
Securities should be included, then the Company shall be required to include in
such registration only that lower number of Registrable Securities, and the
Piggyback Holders shall participate in the registration pro rata based upon
their total ownership, on a fully diluted basis, of Registrable Securities,
provided, further, that if the managing underwriters determine in good faith
that a lower number of Registrable Securities held by Management Stockholders
(as defined herein and as defined in the Original Registration Rights Agreement)
and/or Additional Stockholders (as defined herein and as defined in the Original
Registration Rights Agreement) than such pro rata portion should be included,
then such lower number shall be included and, as a result thereof, a greater
number of Registrable Securities owned by the other Stockholders may be sold and
(iii) third, other securities requested to be included in such registration.
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ARTICLE IV
HOLDBACK AGREEMENTS
4.1 HOLDBACK.
Each holder of Registrable Securities agrees not to effect any
public sale or distribution of Registrable Securities, or any securities
convertible, exchangeable or exercisable for or into such securities, during the
seven days prior to, and the 90-day period beginning on, the effective date of
an Initial Public Offering or any underwritten Demand Registration or any
underwritten Piggyback Registration in which such holder had an opportunity to
participate without cutback under Article III hereof (in each case except as
part of such underwritten registration), unless the managing underwriters of the
registered public offering otherwise agree.
4.2 COMPANY HOLDBACK.
The Company agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities convertible,
exchangeable or exercisable for or into such securities, during the fourteen
(14) days prior to, and during the 90-day period beginning on, the effective
date of any underwritten Demand Registration or any underwritten Piggyback
Registration in which holders of Registrable Securities are selling stockholders
(except as part of such underwritten registration or pursuant to registrations
on Forms S-4 or S-8 or any successor form), unless the managing underwriters of
such underwritten Demand Registration or underwritten Piggyback Registration
otherwise agree, and (ii) to use all reasonable efforts to cause each holder of
at least five percent (5%) (on a fully diluted basis) of its equity securities,
or any securities convertible, exchangeable or exercisable for or into such
securities, to agree not to effect any public sale or distribution of any such
securities during such period (except as part of such underwritten registration,
if otherwise permitted), unless the managing underwriters of such underwritten
Demand Registration or underwritten Piggyback Registration otherwise agree.
ARTICLE V
REGISTRATION PROCEDURES
Whenever the Stockholders have requested that any Registrable
Securities be registered pursuant to this Agreement, the Company will use all
reasonable 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 (or, in the case
of clause (p) below, will not):
(a) prepare and file with the Commission a registration
statement with respect to such Registrable Securities (such registration
statement to include all information which the holders of the Registrable
Securities to be registered thereby shall reasonably request) and use all
reasonable efforts to cause such registration statement to become effective,
provided that as
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promptly as practicable before filing a registration statement or prospectus or
any amendments or supplements thereto, the Company will (i) furnish to counsel
selected by the holders of a majority (by number of shares) of the Registrable
Securities covered by such registration statement (and, if any Sofedit
Stockholders or any CVC Stockholders have requested inclusion of any Registrable
Securities pursuant to Article II or Article III, to one counsel for such
Sofedit Stockholders and to one counsel for such CVC Stockholders) copies of all
such documents proposed to be filed, and the Company shall not file any such
documents to which such counsel shall have reasonably objected on the grounds
that such document does not comply in all material respects with the
requirements of the Securities Act, and (ii) notify each holder of Registrable
Securities covered by such registration statement of (x) any request by the
Commission to amend such registration statement or amend or supplement any
prospectus or (y) any stop order issued or threatened by the Commission, and
take all reasonable actions required to prevent the entry of such stop order or
to remove it if entered;
(b) (i) 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 until all Registrable Securities covered by such Registration
Statement are sold in accordance with the intended plan of distribution set
forth in such Registration Statement and (ii) 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 by the sellers thereof set forth in such registration
statement;
(c) furnish to each seller such number of conformed copies of
such registration statement, each amendment and supplement thereto, the
prospectus included in such registration statement (including each preliminary
prospectus and, in each case, including all exhibits thereto and documents
incorporated by reference therein) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller thereof shall reasonably request, to keep such
registration or qualification in effect for so long as such registration
statement remains in effect and do any and all other acts and things which may
be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller, provided, however, 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 clause (d), (ii) subject itself to taxation in
any such jurisdiction or (iii) consent to general service of process in any such
jurisdiction;
(e) furnish to each seller of Registrable Securities a signed
copy, addressed to such seller (and the underwriters, if any) of an opinion of
counsel for the Company or special counsel to the selling stockholders, dated
the effective date of such registration statement (and, if
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such registration statement includes an underwritten public offering, dated the
date of the closing under the underwriting agreement), reasonably satisfactory
in form and substance to such seller, covering substantially the same matters
with respect to such registration statement (and the prospectus included
therein) as are customarily covered in opinions of issuer's counsel delivered to
the underwriters in underwritten public offerings, and such other legal matters
as the seller (or the underwriters, if any) may reasonably request;
(f) notify each seller of Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of any event known to the Company as a result
of which the prospectus included in such registration statement, as then in
effect, contains an untrue statement of a material fact or omits to state any
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances under which they were made, and, at
the request of any such seller, the Company will prepare and furnish to such
seller a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances under which they were made and in the event the
Company shall give such notice, the Company shall extend the period during which
such registration statement shall be maintained effective by the number of days
during the period from and including the date of the giving of such notice to
such seller to the date when the Company made available to such seller an
appropriately amended or supplemented prospectus;
(g) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and to enter into such customary agreements as may be required in
furtherance thereof, including without limitation listing applications and
indemnification agreements in customary form;
(h) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(i) enter into such customary arrangements and take all such
other actions as the holders of a majority (by number of shares) of the
Registrable Securities being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities (including without limitation use of its best efforts to effect a
stock split or a combination of shares);
(j) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information
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reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(k) subject to other provisions hereof, use all reasonable
efforts to cause such Registrable Securities covered by such registration
statement to be registered with or approved by such other governmental agencies
or authorities or self-regulatory organizations as may be necessary to enable
the sellers thereof to consummate the disposition of such Registrable
Securities;
(l) use all reasonable efforts to obtain a "comfort" letter,
dated the effective date of such registration statement (and, if such
registration includes an underwritten offering, dated the date of the closing
under the underwriting agreement), signed by the independent public accountants
who have certified the Company's financial statements, addressed to each seller,
and to the underwriters, if any, covering substantially the same matters with
respect to such registration statement (and the prospectus included therein) and
with respect to events subsequent to the date of such financial statements, as
are customarily covered in accountants' letters delivered to the underwriters in
underwritten public offerings of securities and such other financial matters as
such seller (or the underwriters, if any) may reasonably request;
(m) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the Commission and make available to its
security holders, in each case as soon as practicable, an earnings statement
covering a period of at least twelve months, beginning with the first month
after the effective date of the registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act;
(n) permit any holder of Registrable Securities, if such
holder determines, in its sole judgment, exercised in good faith, that it might
be deemed to be a controlling person of the Company (within the meaning of the
Securities Act or the Exchange Act), to participate in the preparation of any
registration statement covering such holder's Registrable Securities and to
include therein material, furnished to the Company in writing, which in the
reasonable judgment of such holder should be included and which is reasonably
acceptable to the Company;
(o) use all reasonable efforts to obtain the lifting at the
earliest possible time of any stop order suspending the effectiveness of any
registration statement or of any order preventing or suspending the use of any
preliminary prospectus;
(p) at any time file or make any amendment to a registration
statement, or any amendment of or supplement to a prospectus (including
amendments of the documents incorporated by reference into the prospectus), of
which each seller of Registrable Securities or the managing underwriters shall
not have previously been advised and furnished a copy or to which any sellers of
Registrable Securities, the managing underwriters, or counsel for such sellers
or for the underwriters shall reasonably object;
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(q) make such representations and warranties (subject to
appropriate disclosure schedule exceptions) to sellers of Registrable Securities
and the underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters and selling holders, as the case may be, in
underwritten public offerings of substantially the same type; and
(r) if any proposed registration statement refers to any
holder by name or otherwise as the holder of any securities of the Company then
(whether or not such holder is or might be deemed to be a controlling person of
the Company), (i) the Company shall be required at the request of such holder to
insert therein language, in form and substance reasonably satisfactory to such
holder, the Company and the managing underwriters, to the effect that the
holding by such holder of such securities is not to be construed as a
recommendation by such holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such holder
will assist in meeting any future financial requirements of the Company, or (ii)
in the event that such reference to such holder by name or otherwise is not
required by the Securities Act, any similar Federal or state statute, or any
rule or regulation of any other regulatory body having jurisdiction over the
offering, then in force, the Company shall be required at the request of such
holder to delete the reference to such holder.
ARTICLE VI
REGISTRATION EXPENSES
6.1 FEES GENERALLY.
All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation internal expenses
(including without limitation all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance, the expenses
and fees for listing the securities to be registered on each securities exchange
on which similar securities issued by the Company are then listed, all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws (including without limitation reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the Registrable
Securities), printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company (all such expenses being herein called
"Registration Expenses") shall be borne as provided for in Sections 2.2, 2.3,
2.4, 2.5, 3.2 and this Article VI; provided, that each Stockholder shall pay any
underwriting fees, discounts or commissions attributable to the sale of its
Registrable Securities.
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6.2 COUNSEL FEES.
In connection with each Demand Registration, the Company will
reimburse the Requesting Investor for such Demand Registration for the
reasonable fees and disbursements of one counsel chosen by the relevant
Requesting Investor.
ARTICLE VII
UNDERWRITTEN OFFERINGS
7.1 DEMAND UNDERWRITTEN OFFERINGS.
If requested by the underwriters for any underwritten
offerings of Registrable Securities pursuant to a Demand Registration, the
Company will enter into an underwriting agreement with such underwriters for
such offering, such agreement to be satisfactory in substance and form to a
majority (by number of shares) of holders of Registrable Securities being
offered and the underwriters, and to contain such representations and warranties
by the Company and such other terms as are generally included in agreements of
this type, including without limitation indemnities customarily included in such
agreements. The holders of the Registrable Securities will cooperate in good
faith with the Company in the negotiation of the underwriting agreement. The
holders of Registrable Securities to be distributed by such underwriters may be
parties to such underwriting agreement and may, at their option, 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 of Registrable Securities 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 of Registrable Securities. The Company shall
cooperate with any such holder of Registrable Securities in order to limit any
representations or warranties to, or agreements with, the Company or the
underwriters to be made by such holder only to those representations, warranties
or agreements regarding such holder, such holder's Registrable Securities and
such holder's intended method of distribution and any other representation
required by applicable law.
7.2 INCIDENTAL UNDERWRITTEN OFFERINGS.
If the Company at any time proposes to register any of its
securities under the Securities Act as contemplated by Article III of this
Agreement and such securities are to be distributed by or through one or more
underwriters, the Company will, if requested by any holder of Registrable
Securities as provided in Article III of this Agreement, arrange for such
underwriters to include all the Registrable Securities to be offered and sold by
such holder, subject to the limitations set forth in Article III hereof, among
the securities to be distributed by such underwriters. The holders of
Registrable Securities to be distributed by such underwriters shall be parties
to the underwriting agreement between the Company and such underwriters, and
may, at their option, require that any or all of the representations and
warranties by, and the other
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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 of
Registrable Securities 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 of Registrable Securities. The
Company shall cooperate with any such holder of Registrable Securities in order
to limit any representations or warranties to, or agreements with, the Company
or the underwriters to be made by such holder only to those representations,
warranties or agreements regarding such holder, such holder's Registrable
Securities and such holder's intended method of distribution and any other
representation required by applicable law.
ARTICLE VIII
INDEMNIFICATION
8.1 INDEMNIFICATION BY THE COMPANY.
The Company agrees to indemnify and hold harmless, to the
fullest extent permitted by law, each of the holders of any Registrable
Securities covered by such registration statement, each other Person, if any,
who controls such holder within the meaning of the Securities Act or the
Exchange Act (each such Person, a "Controlling Person"), and each of their
respective directors, officers, managers, partners, members, stockholders and
other Controlling Persons, as follows:
(i) against any and all loss, liability, claim, damage or
expense arising out of or based upon an untrue statement or
alleged untrue statement of a material fact contained in any
registration statement (or any amendment or supplement
thereto), including all documents incorporated therein by
reference, or in any preliminary prospectus or final or
summary prospectus (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense to the extent of the aggregate amount paid in
settlement of any litigation, investigation or proceeding by
any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement
or omission or any such alleged untrue statement or omission,
if such settlement is effected with the written consent of the
Company; and
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(iii) against any and all expense incurred by them in
connection with investigating, preparing or defending against
any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or
omission or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under clause (i)
or (ii) above;
provided, that this indemnity does not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such holder expressly for use in the preparation of any registration statement
(or any amendment or supplement thereto), including all documents incorporated
therein by reference, or in any preliminary prospectus or final or summary
prospectus (or any amendment or supplement thereto); and provided, further, that
the Company will not be liable to any holder under the indemnity agreement in
this Section 8.1, with respect to any preliminary prospectus or the final
prospectus or the final prospectus as amended or supplemented, as the case may
be, to the extent that any such loss, liability, claim, damage or expense of
such controlling Person or holder results from the fact that such holder sold
Registrable Securities to a Person to whom there was not sent or given, at or
prior to the written confirmation of such sale, a copy of the final prospectus
or of the final prospectus as then amended or supplemented, whichever is most
recent, if the Company has previously and timely furnished copies thereof to
such holder. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of such holder, such Controlling Person
or any such director, officer, manager, partner, member, stockholder or other
Controlling Person and shall survive the transfer of such securities by such
seller.
8.2 INDEMNIFICATION BY A SELLING STOCKHOLDER.
In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder agrees to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 8.1 of this Agreement), to the extent permitted by law, the
Company, each Controlling Person of the Company, and each of their respective
directors, officers, managers, partners, members, stockholders and other
Controlling Persons, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary,
final or summary prospectus contained therein, or any amendment or supplement
thereto, if such statement or alleged statement or omission or alleged omission
was made in reliance upon and in conformity with written information that
relates only to such holder or the plan of distribution that is expressly
furnished to the Company by or on behalf of such holder for use in the
preparation of such registration statement, preliminary, final or summary
prospectus, amendment or supplement. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of the Company,
such holder, or any of their respective Controlling Persons, as the case may be,
or any
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of their respective directors, officers, managers, partners, members,
stockholders or other Controlling Persons and shall survive the transfer of such
securities by such holder. With respect to each claim pursuant to this Section
8.2, each holder's maximum liability under this Section shall be limited to an
amount equal to the net proceeds actually received by such holder (after
deducting any underwriting discount and expenses) from the sale of Registrable
Securities being sold pursuant to such registration statement or prospectus by
such holder.
8.3 INDEMNIFICATION PROCEDURE.
Promptly after receipt by an indemnified party hereunder of
written notice of the commencement of any action or proceeding involving a claim
referred to in Section 8.1 or Section 8.2 of this Agreement, 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 that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under Section
8.1 or Section 8.2 of this Agreement except to the extent that the indemnifying
party is actually prejudiced by such failure to give notice. In case any such
action is brought against an indemnified party, the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified, to the extent that it may wish,
with counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal fees and expenses subsequently incurred by the
latter in connection with the defense thereof, unless in such indemnified
party's reasonable judgment an actual or potential conflict of interest between
such indemnified and indemnifying parties may exist in respect of such claim, in
which case the indemnifying party shall not be liable for the fees and expenses
of (i) more than one counsel (in addition to any local counsel) for all holders
of Registrable Securities, selected by a majority (by number of shares) of the
holders of Registrable Securities, or (ii) more than one counsel (in addition to
any local counsel) for the Company in connection with any one action or separate
but similar or related actions. An indemnifying party who is not entitled to
(pursuant to an immediately preceding sentence), or elects not to, assume the
defense of a claim will not be obligated to pay the fees and expenses of more
than one counsel (in addition to any local counsel) for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party an actual or potential conflict of interest
may exist between such indemnified party and any other of such indemnified
parties with respect to such claim, in which event the indemnifying party shall
be obligated to pay the fees and expenses of such additional counsel or
counsels. The indemnifying party will not, without the prior written consent of
each indemnified party, settle or compromise or consent to the entry of any
judgment in any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder (whether or not such
indemnified party or any Person who controls such indemnified party is a party
to such claim, action, suit or proceeding), unless such settlement, compromise
or consent includes an unconditional release of such indemnified party from all
liability arising out of such claim, action, suit or proceeding. Notwithstanding
anything to the contrary set forth herein, and
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without limiting any of the rights set forth above, in any event any party will
have the right to retain, at its own expense, counsel with respect to the
defense of a claim.
8.4 UNDERWRITING AGREEMENT.
The Company and each holder of Registrable Securities
requesting registration shall provide for the foregoing indemnity (with
appropriate modifications) in any underwriting agreement with respect to any
required registration or other qualification of securities under any federal or
state law or regulation of any governmental authority.
8.5 CONTRIBUTION.
If the indemnification provided for in Sections 8.1 and 8.2 of
this Agreement is unavailable (for any reason other than a determination of its
inapplicability by a court of competent jurisdiction) to hold harmless an
indemnified party under such Sections, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to in Section 8.1 or
Section 8.2 of this Agreement in such proportion as is appropriate to reflect
the relative fault of the indemnifying party on the one hand, and the
indemnified party on the other, in connection with statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations, including without limitation the
relative benefits received by each party from the offering of the securities
covered by such registration statement, the parties' relative knowledge and
access to information concerning the matter with respect to which the claim was
asserted and the opportunity to correct and prevent any statement or omission.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statements or omission. The parties hereto agree that it
would not be just and equitable if contributions pursuant to this Section 8.5
were to be determined by pro rata or per capita allocation (even if the
underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the first and second sentences of this Section 8.5. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this Section 8.5 shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim (which shall be limited as provided in Section 8.3 of this Agreement if
the indemnifying party has assumed the defense of any such action in accordance
with the provisions thereof) which is the subject of this Section 8.5. Promptly
after receipt by an indemnified party under this Section 8.5 of notice of the
commencement of any action against such party in respect of which a claim for
contribution may be made against an indemnifying party under this Section 8.5,
such indemnified party shall notify the indemnifying party in writing of the
commencement thereof if the notice specified in Section 8.3 of this Agreement
has not been given with respect to such
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action; provided that the omission to so notify the indemnifying party shall not
relieve the indemnifying party from any liability which it may otherwise have to
any indemnified party under this Section 8.5, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice. The
Company and each holder of Registrable Securities agrees with each other and the
underwriters of the Registrable Securities, if requested by such underwriters,
(i) that the underwriters' portion of such contribution shall not exceed the
underwriting discount and (ii) that the amount of such contribution shall not
exceed an amount equal to the net proceeds actually received by such
indemnifying party from the sale of Registrable Securities in the offering to
which the losses, liabilities, claims, damages or expenses of the indemnified
parties relate. 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.
8.6 PERIODIC PAYMENTS.
The indemnification required by this Article VIII shall be
made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
ARTICLE IX
RULE 144
If the Company shall have filed a registration statement
pursuant to the requirements of Section 12 of the Exchange Act or a registration
statement pursuant to the requirements of the Securities Act, the Company
covenants that it will file the reports required to be filed by it under the
Securities Act and the Exchange Act (or, if the Company is not required to file
such reports, it will, upon the request of any holder of Registrable Securities,
make publicly available other information), and it will take such further action
as any holder of Registrable Securities may reasonably request, all to the
extent required from time to time to enable such holder to sell shares of
Registrable Securities without registration under the Securities Act in
compliance with (i) Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or (ii) any similar rule or regulation hereafter
adopted by the Commission. Upon the request of any holder of Registrable
Securities, the Company will deliver to such holder a written statement as to
whether it has complied with such requirements.
ARTICLE X
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Person may participate in any underwritten registration
hereunder unless such Person (i) agrees to sell such Person's securities on the
basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such
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arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements, escrow agreements and other
documents reasonably required under the terms of such underwriting arrangements
and consistent with the provisions of this Agreement.
ARTICLE XI
MISCELLANEOUS
11.1 NO INCONSISTENT AGREEMENTS.
The Company represents and warrants that it does not currently
have, and covenants that it will not hereafter enter into, any agreement which
is inconsistent with, or would otherwise restrict the performance by the Company
of, its obligations hereunder.
11.2 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES.
The Company will not take any action, or fail to take any
action which it may properly take, with respect to its securities which would
adversely affect the ability of the holders of Registrable Securities to include
Registrable Securities in a registration undertaken pursuant to this Agreement
or which, to the extent within its control, would adversely affect the
marketability of such Registrable Securities in any such registration (including
without limitation effecting a stock split or a combination of shares).
11.3 SPECIFIC PERFORMANCE.
The parties hereto agree that irreparable damage would occur
in the event any provision of this Agreement was not performed in accordance
with the terms hereof and that the parties shall be entitled to specific
performance of the terms hereof, in addition to any other remedy at law or
equity; provided, however, that each of the parties agrees to provide the other
parties with written notice at least two business days prior to filing any
motion or other pleading seeking a temporary restraining order, a temporary or
permanent injunction, specific performance, or any other equitable remedy and to
give such other parties and their counsel a reasonable opportunity to attend and
participate in any judicial or administrative hearing or other proceeding held
to adjudicate or rule upon any such motion or pleading.
11.4 ACTIONS TAKEN; AMENDMENTS AND WAIVERS.
Except as otherwise provided herein, no modification,
amendment or waiver of any provision of this Agreement will be effective against
the Company or any holder of Registrable Securities, unless such modification,
amendment or waiver is approved in writing by a written instrument duly executed
by the Company, the CVC Stockholders and the Sofedit Stockholders; provided that
the Company shall provide twenty (20) days' prior written notice of any such
amendment not governed by the next proviso; and provided further that (a) any
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amendment, modification, or supplement that adversely and disproportionately
affects, in their capacity as holders of Registrable Securities, the Sofedit
Institutional Stockholders, the Institutional Stockholders, Former Management
Stockholders, Management Stockholders or Additional Stockholders, as the case
may be, shall also require the consent of the Sofedit Institutional
Stockholders, Institutional Stockholders, Former Management Stockholders,
Management Stockholders or Additional Stockholders, respectively, and (b) any
amendment, modification or supplement that adversely and disproportionately
affects less than all of the Sofedit Institutional Stockholders, Institutional
Stockholders, Former Management Stockholders, Management Stockholders or
Additional Stockholders, as the case may be, shall also require consent of the
Sofedit Institutional Stockholders, Institutional Stockholders, Former
Management Stockholders, Management Stockholders or Additional Stockholders so
affected. The failure of any party to enforce any of the provisions of this
Agreement will in no way be construed as a waiver of such provisions and will
not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
11.5 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Agreement by or on behalf
of any of the parties hereto will bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not; in addition, whether or not any express assignment has been made, the
provisions of this Agreement which are for the benefit of purchasers or holders
of Registrable Securities are also for the benefit of, and enforceable by, any
subsequent holder of Registrable Securities, except to the extent reserved to or
by the transferor in connection with any such transfer; provided, that the
benefits of this Agreement shall inure to and be enforceable by any transferee
of Registrable Securities so long as such transferee shall have acquired such
securities in accordance with the terms of the Stockholders Agreement and shall
have executed a Registration Rights Joinder Agreement. The parties hereto agree
that in connection with the award of the Options to any employee, the Company
may allow such employee to execute a Registration Rights Joinder Agreement, and
thereby enter into and become a party to this Agreement as a Management
Stockholder hereunder.
11.6 NOTICES.
All notices, requests and other communications hereunder shall
be given in the manner set forth in the Stockholders Agreement.
11.7 HEADINGS.
The headings used in this Agreement have been inserted for
convenience of reference only and do not affect the provisions hereof.
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11.8 GENDER.
Whenever the pronouns "he" or "his" are used herein, they
shall also be deemed to mean "she" or "hers" or "it" or "its" whenever
applicable. Words in the singular shall be read and construed as though in the
plural, and words in the plural shall be construed as though in the singular in
all cases where they would so apply.
11.9 INVALID PROVISIONS.
If any provision of this Agreement is held to be illegal,
invalid or unenforceable under any present or future law, and if the rights or
obligations of any party hereto under this Agreement will not be materially and
adversely affected thereby, (i) such provision will be fully severable, (ii)
this Agreement will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, (iii) the remaining
provisions of this Agreement will remain in full force and effect and will not
be affected by the illegal, invalid or unenforceable provision or by its
severance herefrom and (iv) in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid and enforceable provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible.
11.10 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT
TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW
YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF
ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
11.11 COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
each of which will be deemed an original, but all of which together will
constitute one and the same instrument.
11.12 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
EACH PARTY OTHER THAN THE STATE OF MICHIGAN, CONSENTS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF NEW
YORK, STATE OF NEW YORK AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS
RELATING TO THIS AGREEMENT MAY BE LITIGATED IN SUCH COURTS. EACH SUCH PARTY
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND
BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS
25
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AGREEMENT. EACH SUCH PARTY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO THE PARTY AT THE ADDRESS SPECIFIED IN THIS AGREEMENT, SUCH SERVICE
TO BECOME EFFECTIVE FIFTEEN (15) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL
IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY PARTY HERETO TO SERVE ANY SUCH
LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER OR TO BRING ACTIONS, SUITS OR
PROCEEDINGS AGAINST ANY OF THE OTHER PARTIES HERETO IN SUCH OTHER JURISDICTIONS,
AND IN SUCH MANNER, AS MAY BE PERMITTED BY ANY APPLICABLE LAW.
11.13 WAIVER OF JURY TRIAL.
EACH PARTY, OTHER THAN THE STATE OF MICHIGAN, HEREBY WAIVES
ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS AGREEMENT. EACH SUCH PARTY ALSO WAIVES ANY BOND OR SURETY
OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF SUCH
PARTY. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND
ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT
MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
EACH SUCH PARTY FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER
WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
MS ACQUISITION CORP.
By:
-----------------------------------------
Name:
Title:
FORMER SOFEDIT INVESTORS
CEFI
By:
-----------------------------------------
Name:
Title:
YACESE S.A.
By:
-----------------------------------------
Name:
Title:
H.H.A. WAY
By:
-----------------------------------------
Name:
Title:
[Signature page to Registration Rights Agreement]
30
SOFEDIT INSTITUTIONAL
INVESTORS
COMPAGNIE DE FINANCEMENT
INDUSTRIEL S.A.
By:
-----------------------------------------
Name:
Title:
JAFCO I SAINT ▇▇▇▇▇▇ ▇.▇.
By:
-----------------------------------------
Name:
Title:
JAFCO II SAINT ▇▇▇▇▇▇ ▇.▇.
By:
-----------------------------------------
Name:
Title:
TOCQUEVILLE EUROPE L.P.
By:
-----------------------------------------
Name:
Title:
BIDASSOA INVESTISSEMENTS S.A.
By:
-----------------------------------------
Name:
Title:
[Signature page to Registration Rights Agreement]
31
CININDEV
By:
-----------------------------------------
Name:
Title:
CFJPE S.A.
By:
-----------------------------------------
Name:
Title:
OBERON S.A.
By:
-----------------------------------------
Name:
Title:
EURO SYNERGIES S.A.
By:
-----------------------------------------
Name:
Title:
VENTADOUR INVESTISSEMENTS S.A.
By:
-----------------------------------------
Name:
Title:
COGEPA S.A.
By:
-----------------------------------------
Name:
Title:
[Signature page to Registration Rights Agreement]
32
SOFEDICI S.C.
By:
-----------------------------------------
Name:
Title:
APAX PARTNER CLUB S.A.
By:
-----------------------------------------
Name:
Title:
ALTAMIR S.A.
By:
-----------------------------------------
Name:
Title:
APAX FRANCE IV S.A.
By:
-----------------------------------------
Name:
Title:
CVC
CITICORP VENTURE CAPITAL, LTD.
By:
-----------------------------------------
Name:
Title:
[Signature page to Registration Rights Agreement]
33
CVC CO-INVESTORS
-----------------------------------
▇▇▇▇▇▇▇ ▇. COMFORT
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
[Signature page to Registration Rights Agreement]
34
BERKSHIRE FUND
THE BERKSHIRE FUND,
A LIMITED PARTNERSHIP
By: BERKSHIRE CAPITAL ASSOCIATES,
LIMITED PARTNERSHIP
Its General Partner
By:
-----------------------------------
A General Partner
BERKSHIRE GROUP
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
J. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
LEA ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
[Signature page to Registration Rights Agreement]
35
PRUDENTIAL
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:
--------------------------------
Name:
Title:
PRUCO
PRUCO LIFE INSURANCE COMPANY
By:
--------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇,
CUSTODIAN OF THE PUBLIC SCHOOL EMPLOYEES'
RETIREMENT SYSTEM; STATE EMPLOYEES'
RETIREMENT SYSTEM; MICHIGAN STATE POLICE
RETIREMENT SYSTEM; JUDGES' RETIREMENT
SYSTEM; AND PROBATE JUDGES' RETIREMENT
SYSTEM
By:
--------------------------------
Name:
Title
[Signature page to Registration Rights Agreement]
36
FORMER MANAGEMENT GROUP
----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
MANAGEMENT GROUP
--------------------------------
UELI SPRING
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
[Signature page to Registration Rights Agreement]
37
--------------------------------
▇▇▇▇▇ ▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
[Signature page to Registration Rights Agreement]
38
CVC CO-INVESTORS, CONTINUED
CCT PARTNERS III, L.P.,
by its General Partner
By:
-------------------------------
Name:
Title:
[Signature page to Registration Rights Agreement]