Amended and Restated Registration Rights Agreement By and Between MISCOR Group, Ltd., Tontine Capital Partners, L.P. And Tontine Capital Overseas Master Fund, L.P. November 30, 2007
Exhibit
10.5
Amended
and Restated
By
and Between
Tontine
Capital Partners, L.P.
And
Tontine
Capital Overseas Master Fund, L.P.
November
30, 2007
TABLE
OF CONTENTS
Page
|
ARTICLE
1
|
Definitions
|
1
|
|
|
ARTICLE
2
|
Registration
Rights
|
4
|
|
|
2.1
|
Current
Public Information
|
4
|
|
|
2.2
|
Registration
|
4
|
|
|
2.3
|
Demand
Registration
|
5
|
|
|
2.4
|
Piggyback
Registration.
|
8
|
|
|
2.5
|
Underwriting;
Holdback Agreements.
|
9
|
|
|
2.6
|
Registration
Procedures
|
10
|
|
|
2.7
|
Conditions
Precedent to Company’s Obligations Pursuant to this
Agreement
|
12
|
|
|
2.8
|
Fees
and Expenses
|
12
|
|
|
2.9
|
Indemnification.
|
12
|
|
|
2.10
|
Participation
in Registrations.
|
15
|
|
|
2.11
|
Compliance
|
16
|
|
|
ARTICLE
3
|
Transfers
of Certain Rights
|
16
|
|
|
3.1
|
Transfer
|
16
|
|
|
3.2
|
Transferees
|
16
|
|
|
3.3
|
Subsequent
Transferees
|
16
|
|
|
ARTICLE
4
|
Miscellaneous
|
16
|
|
|
4.1
|
Recapitalizations,
Exchanges, etc
|
16
|
|
|
4.2
|
No
Inconsistent Agreements
|
16
|
|
|
4.3
|
Amendments
and Waivers
|
17
|
|
|
4.4
|
Severability
|
17
|
|
|
4.5
|
Counterparts
|
17
|
|
|
4.6
|
Notices
|
17
|
|
|
4.7
|
Governing
Law
|
18
|
|
|
4.8
|
Forum;
Service of Process
|
18
|
|
|
4.9
|
Captions
|
18
|
|
|
4.10
|
No
Prejudice
|
18
|
|
|
4.11
|
Words
in Singular and Plural Form
|
18
|
|
|
4.12
|
Remedy
for Breach
|
18
|
|
|
4.13
|
Successors
and Assigns, Third Party Beneficiaries
|
18
|
|
|
4.14
|
Amendment
and Restatement
|
19
|
|
|
4.15
|
Attorneys’
Fees
|
19
|
|
|
4.16
|
Termination
of Rights
|
19
|
AMENDED
AND RESTATED
This
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
“Agreement”), dated as of November 30, 2007, is
entered into by and between MISCOR GROUP, LTD., an Indiana corporation (the
“Company”), TONTINE CAPITAL PARTNERS, L.P., a Delaware
limited partnership (“TCP” or a
“Buyer”) and TONTINE CAPITAL
OVERSEAS MASTER FUND,
L.P., a Cayman Islands limited partnership
(a“Buyer” and
together with TCP,
the“Buyers”).
RECITALS:
A. Pursuant
to a Securities Purchase Agreement, dated as of January 18, 2007, entered into
by and between the Company and the Buyers (the “Initial Securities
Purchase Agreement”), the Company issued and sold 62,500,000
shares of its Common Stock (the “Initial Shares”) to
the Buyers.
B. In
connection with the execution and delivery of the Initial Securities Purchase
Agreement, the Company and the Buyers entered into a Registration Rights
Agreement, dated as of January 18, 2007 (the “Initial Registration
Rights Agreement”), pursuant to which the Company agreed under
certain circumstances to register the resale of the Initial Shares under the
1933 Act and the rules and regulations promulgated thereunder, and applicable
state securities laws.
C. Pursuant
to the terms of the Initial Registration Rights Agreement, the Company filed
a
registration statement on Form S-1 (File No. 333-144557) covering the resale
of
the Initial Shares on July 13, 2007 (the “Initial Registration
Statement”).
D. The
Company desires to issue and sell an additional 83,333,333 shares of its Common
Stock to the Buyers as set forth in the Securities Purchase Agreement, dated
as
of November 30, 2007, entered into by and between the Company and the Buyers
(the “New Securities Purchase
Agreement”).
E. The
Company and the Buyers desire to amend and restate the Initial Registration
Rights Agreement in connection with the consummation of the transactions
contemplated by the New Securities Purchase Agreement.
F. Certain
terms used in this Agreement are defined in Article 1
hereof.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
and agreements hereinafter contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
intending to be legally bound, the parties hereto, desiring to amend and restate
the Initial Registration Rights Agreement, do hereby agree as
follows:
ARTICLE
1
DEFINITIONS
“Affiliate”
means any Person that directly or indirectly controls, or is under control
with,
or is controlled by such Person. As used in this definition,
“control” (including with its correlative meanings, “controlled by” and “under
common control with”) shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a Person
(whether through ownership of securities or partnership or other ownership
interests, by contract or otherwise).
1
“Agreement”
has the meaning set forth in the preamble.
“Business
Day” means any day excluding Saturday, Sunday or any other day
which is a legal holiday under the laws of the State of Indiana or is a day
on
which banking institutions therein located are authorized or required by law
or
other governmental action to close.
“Common
Stock” means the common stock, no par value per share, of the
Company.
“Company”
has the meaning set forth in the preamble.
“Cut
Back Shares” has the meaning set forth in Section 2.2.
“Demand
Notice” has the meaning set forth in Section 2.3.
“Designated
Holders” means the Buyers and any qualifying transferees of the
Buyers under Section 3.1 hereof
who hold Registrable Securities.
“Effectiveness
Date” means (a) with respect to the Initial
Registration Statement, the earlier of: (i) January 18, 2008, and
(ii) the fifth trading day following the date on which the Company is notified
by the SEC that the Initial Registration Statement is no longer subject to
further review and comments, (b) with respect to the Registration Statement
required to be filed pursuant to Section 2.2(b), the earlier of: (i) the 120th
day following the
date on which such Registration Statement is required to be filed, and (ii)
the
fifth trading day following the date on which the Company is notified by the
SEC
that such Registration Statement will not be reviewed or is no longer subject
to
further review and comments, and (c) with respect to any additional Registration
Statements that may be required pursuant to Section 2.2(c), the earlier of (i) the 120th
day following the
Filing Date of such Registration Statement, and (ii) the fifth trading day
following the date on which the Company is notified by the SEC that such
additional Registration Statement will not be reviewed or is no longer subject
to further review and comments.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
“Filing
Date” means with respect to any Registration Statements that may
be required pursuant to Section 2.2(c) because (a) the Company has
not included
some or all of the remaining Registrable Securities proposed to be included
on
previously-filed Registration Statements as a result of written comments from
the SEC related to Rule 415, the date that is 180 days following the date the
most recent Registration Statement covering Registrable Securities has been
declared effective, (b) the SEC shall have notified the Company in writing
that
certain Registrable Securities were not eligible for inclusion on a
previously-filed Registration Statement for any reason other than as described
in clause (a) above, the 45th day following
the
date or time on which the SEC shall indicate as being the first date or time
that such Registrable Securities may then be included in a Registration, or
(c)
if any such Registration Statement(s) is required for a reason other than as
described in clauses (a) or (b) above, the 45th day following
the
date on which the Company first knows, or reasonably should have known, that
such additional Registration Statement(s) is required.
“Indemnified
Party” has the meaning set forth in Section 2.9.
“Initial
Registration Rights Agreement” has the meaning set forth in the
Recitals.
2
“Initial
Registration Statement” has the meaning set forth in the
Recitals.
“Initial
Shares” has the meaning set forth in the Recitals.
“Initial
Securities Purchase Agreement” has the meaning set forth in the
Recitals.
“Losses”
has the meaning set forth in Section 2.9.
“Majority
Holders” means those Designated Holders holding a majority of the
Registrable Securities.
“Person”
means any individual, company, partnership, firm, joint venture, association,
joint-stock company, trust, unincorporated organization, governmental body
or
other entity.
“Piggyback
Registration” has the meaning set forth in
Section 2.4.
“Buyers”
has the meaning set forth in the preamble.
“Purchase
Price” has the meaning ascribed to such term in the Securities
Purchase Agreement.
“Registrable
Securities” means, subject to the immediately following sentences,
(i) shares of Common Stock acquired by the Buyers from the Company pursuant
to the Initial Securities Purchase Agreement and the New Securities Purchase
Agreement or, so long as this Agreement is still in effect, any other shares
of
Common Stock acquired by the Buyers after the date hereof, and (ii) any shares
of Common Stock issued or issuable, directly or indirectly, with respect to
the
securities referred to in clause (i) by way of stock dividend or stock split
or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. In addition, any particular
shares of Common Stock constituting Registrable Securities will cease to be
Registrable Securities when they (x) have been effectively registered under
the
Securities Act and disposed of in accordance with a Registration Statement
covering them, (y) have been sold to the public pursuant to Rule 144 (or by
similar provision under the Securities Act), or (z) are eligible for resale
under Rule 144(k) (or by similar provision under the Securities Act) without
any
limitation on the amount of securities that may be sold under paragraph (e)
thereof.
“Registration
Statement” means a registration statement on Form S-3 (or, if the
Company is not eligible to use Form S-3, such other appropriate registration
form of the SEC pursuant to which the Company is eligible to register the resale
of Registrable Securities) filed by the Company under the Securities Act which
covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all material incorporated by reference in such registration statement, which
shall permit the Buyers to offer and sell, on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act, the Registrable Securities,
including, but not limited to, the Initial Registration Statement.
“register,”
“registered” and
“registration” each shall refer to
a registration
effected by preparing and filing a registration statement or statements or
similar documents in compliance with the Securities Act and the declaration
or
ordering of effectiveness of such registration statement(s) or documents by
the
SEC.
“Representatives”
has the meaning set forth in Section 2.9.
3
“Rule
144” means Rule 144 promulgated by the SEC
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the SEC having
substantially the same effect as such Rule.
“Rule
415” means Rule 415 promulgated by the SEC
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the SEC having
substantially the same effect as such Rule.
“SEC”
means the United States Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
“Securities
Purchase Agreement” has the meaning set forth in the
recitals.
ARTICLE
2
REGISTRATION
RIGHTS
2.1 Current
Public Information. The Company covenants that it will use its
best efforts to file all reports required to be filed by it under the Exchange
Act and the rules and regulations adopted by the SEC thereunder, and will use
its reasonable best efforts to take such further action as the Designated
Holders may reasonably request, all to the extent required to enable the
Designated Holders to sell Registrable Securities pursuant to Rule 144 or Rule
144A adopted by the SEC under the Securities Act or any similar rule or
regulation hereafter adopted by the SEC. The Company shall, upon the
request of a Designated Holder, deliver to such Designated Holder a written
statement as to whether it has complied with such requirements during the twelve
month period immediately preceding the date of such request.
2.2 Registration. The
Company has received written comments from the SEC with respect to the Initial
Registration Statement pertaining to Rule 415, a copy of which has been provided
to the Buyers by the Company, which, unless rebutted by the Company, requires
the Company to treat the registration of the Initial Shares under the Initial
Registration Statement as a “primary offering” with the effect that the Buyers
would be deemed to be “underwriters” for purposes of the Securities Act with
respect to the sale of the Initial Shares in the Initial Registration
Statement. The Company represents and warrants to the Buyers that,
after consultation with the Buyers and following discussions with the SEC in
which the Company used its reasonable best efforts and devoted a reasonable
amount of time to cause as many Registrable Securities as possible to be
included in the Initial Registration Statement without characterizing any
Designated Holder as an underwriter, the Company has been unable to cause the
inclusion of all of the Initial Shares in the Initial Registration Statement
and
has determined to remove from the Initial Registration Statement a certain
portion of the Initial Shares (the “Cut Back
Shares”).
(a) The
Company shall use its reasonable best efforts to cause the Initial Registration
Statement to be declared effective under the Securities Act as soon as possible,
but in any event, no later than the Effectiveness Date, and shall use its
reasonable best efforts to keep the Initial Registration Statement continuously
effective, supplemented and amended to the extent necessary to ensure that
it is
available for the resale of all Registrable Securities registered thereunder
by
the Designated Holders and that it conforms in all material respects to the
requirements of the Securities Act during the entire period beginning on the
Effectiveness Date and ending on the date on which all Registrable Securities
registered thereunder have ceased to be Registrable Securities.
4
(b) No
later
than the 180th
day following the date the Initial Registration Statement is declared effective
by the SEC, the Company shall prepare and file with the SEC an additional
Registration Statement covering the resale of all Registrable Securities not
already covered by the Initial Registration Statement (including the Cut Back
Shares and the shares of Common Stock sold under the New Securities Purchase
Agreement) for an offering to be made on a continuous basis pursuant to Rule
415. Such Registration Statement shall provide for the resale from
time to time, and pursuant to any method or combination of methods legally
available by the Designated Holders of any and all Registrable Securities
registered thereunder; provided, however, that the Company shall only be
required to register such number of Registrable Securities pursuant to this
Section 2.2(b),
such that the offering of such Registrable
Securities will not be deemed, in the reasonable judgment of the Company after
consultation with the Buyers and with the SEC, to be a “primary
offering.” The Company shall use its reasonable best efforts to cause
such Registration Statement to be declared effective under the Securities Act
as
soon as possible but, in any event, no later than its Effectiveness Date, and
shall use its reasonable best efforts to keep the Registration Statement
continuously effective, supplemented and amended to the extent necessary to
ensure that is available for the resale of all Registrable Securities registered
thereunder by the Designated Holders and that it conforms in all material
respects to the requirements of the Securities Act during the entire period
beginning on the applicable Effectiveness Date and ending on the date on which
all Registrable Securities registered thereunder have ceased to be Registrable
Securities.
(c) If,
for
any reason, the Company has been unable to include all of the remaining
Registrable Securities (including the Cut Back Shares and the shares of Common
Stock issued under the New Securities Purchase Agreement ) in the Registration
Statement filed pursuant to Section 2.2(b),
then the Company shall prepare and file as soon as reasonably possible after
the
date on which the SEC shall indicate as being the first date or time that such
filing may be made, but in any event by the Filing Date therefore, one or more
additional Registration Statements covering the resale of all Registrable
Securities not already covered by an existing and effective Registration
Statement for an offering to be made on a continuous basis pursuant to Rule
415. Each such Registration Statement shall provide for the resale
from time to time, and pursuant to any method or combination of methods legally
available by the Designated Holders of any and all Registrable Securities
registered thereunder. The Company shall use its reasonable best
efforts to cause each such Registration Statement to be declared effective
under
the Securities Act as soon as possible but, in any event, no later than its
Effectiveness Date, and shall use its reasonable best efforts to keep such
Registration Statement continuously effective under the Securities Act during
the entire period beginning on the applicable Effectiveness Date and ending
on
the date on which all Registrable Securities registered thereunder have ceased
to be Registrable Securities. For the avoidance of doubt, the Company
will prepare and file additional Registration Statements in accordance with
the
terms hereof until such time as all of the Registrable Securities are covered
by
effective Registration Statements.
(d) The
Company may, at any time it is eligible to do so, file a post-effective
amendment on Form S-3 to any Registration Statement on Form S-1 for the resale
of any then existing Registrable Securities or in any such other manner as
is
preferred or permitted by the SEC to convert such Registration Statement to
a
Form S-3 Registration Statement. Upon the effectiveness of such Form
S-3 Registration Statement, all references to a Registration Statement in this
Agreement shall then automatically be deemed to be a reference to the Form
S-3
Registration Statement.
2.3 Demand
Registration. In addition to the registration obligations of the
Company set forth in Section 2.2
herein, the following provisions shall apply:
(a) Subject
to Section 2.3(i), upon the
written request of the Majority Holders, requesting that the Company effect
the
registration under the Securities Act of all or part of such Designated Holders’
Registrable Securities and specifying the intended method of disposition thereof
(the “Demand Notice”), the Company will promptly give
written notice of such requested registration to all Designated Holders, and
thereupon the Company will use its reasonable best efforts to file with the
SEC
as soon as reasonably practicable following the Demand Notice (but in no event
later than the date that is 90 days after the Demand Notice) a Registration
Statement. The Company shall use its reasonable best efforts to cause
such Registration Statement to be declared effective by the SEC within 90 days
after the initial filing of the Registration Statement. The Company
shall include in such Registration Statement:
5
(i) the
Registrable Securities which the Company has been so requested to be registered
by such Designated Holders for disposition in accordance with the intended
method of disposition stated in such request;
(ii) all
other
Registrable Securities the holders of which shall have made a written request
to
the Company for registration thereof within 30 days after the giving of such
written notice by the Company (which request shall specify the intended method
of disposition of such Registrable Securities); and
(iii) all
shares of Common Stock which the Company or Persons entitled to exercise
“piggy-back” registration rights pursuant to contractual commitments of the
Company may elect to register in connection with the offering of Registrable
Securities pursuant to this Section 2.3;
all
to
the extent requisite to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities and the additional
shares of Common Stock, if any, so to be registered; provided, that, the
provisions of this Section 2.3
shall not require
the Company to effect more than two registrations of Registrable
Securities.
(b) Notwithstanding
anything to the contrary contained in this Agreement, the Company shall not
be
required to effect a registration pursuant to this Section 2.3 within 180 days following the
effective
date of a registration statement filed by the Company in accordance with
Sections 2.2, 2.3
or 2.4
for the account of another Designated Holder of Registrable Securities if the
Designated Holders were afforded the opportunity to include the Registrable
Securities in such registration.
(c) The
registrations under this Section 2.3 shall be on an appropriate Registration
Statement that permits the disposition of such Registrable Securities in
accordance with the intended methods of distribution specified by the Majority
Holders in their request for registration. The Company agrees to
include in any such Registration Statement all information which Designated
Holders of Registrable Securities being registered shall reasonably request
to
effect the registration.
(d) A
registration requested pursuant to this Section 2.3 shall not be deemed to have
been effected
(i) unless a Registration Statement with respect thereto has become effective;
provided, that a Registration Statement which does not become effective after
the Company has filed a Registration Statement with respect thereto solely
by
reason of the refusal to proceed of the Majority Holders (other than a refusal
to proceed based upon the advice of counsel relating to a matter with respect
to
the Company) or because of a breach of this Agreement by any Designated Holder
shall be deemed to have been effected by the Company at the request of the
Majority Holders unless the Designated Holders electing to have Registrable
Securities registered pursuant to such Registration Statement shall have elected
to pay all fees and expenses otherwise payable by the Company in connection
with
such registration pursuant to Section 2.8, (ii) if, after it has become
effective,
such registration is withdrawn by the Company (other than at the request of
the
Majority Holders) or interfered with by any stop order, injunction or other
order or requirement of the SEC or other governmental agency or court for any
reason prior to the expiration of a 180 day period following such Registration
Statement’s effectiveness, or (iii) if the conditions to closing specified in
any purchase agreement or underwriting agreement entered into in connection
with
such registration are not satisfied, other than due solely to some act or
omission by the Designated Holders electing to have Registrable Securities
registered pursuant to such Registration Statement.
6
(e) Intentionally
Omitted.
(f) If
a
requested registration pursuant to this Section 2.3 involves an underwritten offering,
and the
managing underwriter shall advise the Company in writing (with a copy to each
Designated Holder of Registrable Securities requesting registration) that,
in
its opinion, the number of securities requested to be included in such
registration (including securities of the Company which are not Registrable
Securities) exceeds the number which can be sold in such offering within a
price
range reasonably acceptable to the Company and to the holders of a majority
(by
number of shares) of the Registrable Securities requested to be included in
such
Registration Statement, the Company will include in such registration, to the
extent of the number which the Company is so advised can be sold in such
offering, (i) first, the Registrable Securities which have been requested to
be
included in such registration by the Designated Holders pursuant to this
Agreement (pro rata based on the amount of Registrable Securities sought to
be
registered by such Persons), (ii) second, provided that no securities sought
to
be included by the Designated Holders have been excluded from such registration,
the securities of other Persons entitled to exercise “piggy-back” registration
rights pursuant to contractual commitments of the Company (pro rata based on
the
amount of securities sought to be registered by such Persons) and (iii) third,
securities the Company proposes to register.
(g) The
Company shall use its reasonable best efforts to keep any Registration Statement
filed pursuant to this Section 2.3 continuously effective (i) for
a period of
two years after the Registration Statement first becomes effective, plus the
number of days during which such Registration Statement was not effective or
usable pursuant to Sections2.6(e) or
2.6(i);
or (ii) if such Registration
Statement related to an underwritten offering, for such period as in the opinion
of counsel for the underwriters a prospectus is required by law to be delivered
in connection with sales of Registrable Securities by an underwriter or
dealer. In the event the Company shall give any notice pursuant to
Sections 2.6(e) or (i),
the additional time period mentioned in
Section 2.3(f)(i) during
which the Registration Statement is to remain effective shall be extended by
the
number of days during the period from and including the date of the giving
of
such notice pursuant to Sections 2.6(e) or (i)
to and including the date when each seller
of a Registrable Security covered by the Registration Statement shall have
received the copies of the supplemented or amended prospectus contemplated
by
Sections 2.6(e) or (i).
(h) The
Company shall have the right at any time, to suspend the filing of a
Registration Statement under this Section 2.3 or require that the Designated
Holders of
Registrable Securities suspend further open market offers and sales of
Registrable Securities pursuant to a Registration Statement filed hereunder
for
a period not to exceed an aggregate of 30 days in any six month period or an
aggregate of 60 days in any twelve-month period for valid business reasons
(not
including avoidance of their obligations hereunder) (i) to avoid premature
public disclosure of a pending corporate transaction, including pending
acquisitions or divestitures of assets, mergers and combinations and similar
events; (ii) upon the occurrence of any of the events specified in
Section 2.6(e), until the time
that the Designated Holders receive copies of a supplement or amendment to
the
prospectus included in the applicable Registration Statement as contemplated
in
Section 2.6(e); and (iii) upon
the occurrence of any of the events specified in Section 2.6(i), until the time the Company
notifies the
Designated Holders in writing that such suspension is no longer
effective.
(i) The
right
of Designated Holders to register Registrable Securities pursuant to this
Section 2.3 is only exercisable
if, prior to such time as all of the Registrable Securities have ceased to
be
Registrable Securities, the Company becomes ineligible to register the
Registrable Securities on the Registration Statement contemplated by
Section 2.2 or such Registration
Statement otherwise becomes unusable (other than due solely to some act or
omission by the Designated Holders electing to have Registrable Securities
registered pursuant to such Registration Statement) or ineffective and the
Company is not able to correct the misstatements, have the applicable stop
order
rescinded or otherwise restore the effectiveness of the Registration Statement
as contemplated by this Agreement.
7
2.4 Piggyback
Registration.
(a) Whenever
the Company proposes to register any of its securities under the Securities
Act
(other than pursuant to a registration pursuant to Section 2.2 or Section 2.3
or a registration on Form S-4 or S-8 or any
successor or similar forms) and the registration form to be used may be used
for
the registration of Registrable Securities, whether or not for sale for its
own
account, the Company will give prompt written notice (but in no event less
than
30 days before the anticipated filing date) to all Designated Holders (other
than Designated Holders all of whose Registrable Securities are then covered
by
an effective Registration Statement), and such notice shall describe the
proposed registration and distribution and offer to all such Designated Holders
the opportunity to register the number of Registrable Securities as each such
Designated Holder may request. The Company will include in such
registration statement all Registrable Securities with respect to which the
Company has received written requests for inclusion therein within 15 days
after
the Designated Holders’ receipt of the Company’s notice (a
“Piggyback Registration”).
(b) The
Company shall use its reasonable best efforts to cause the managing underwriter
or underwriters of a proposed underwritten offering involving a Piggyback
Registration to permit the Registrable Securities requested to be included
in a
Piggyback Registration to be included on the same terms and conditions as any
similar securities of the Company or any other security holder included therein
and to permit the sale or other disposition of such Registrable Securities
in
accordance with the intended method of distribution thereof.
(c) Any
Designated Holder shall have the right to withdraw its request for inclusion
of
its Registrable Securities in any Registration Statement pursuant to this
Section 2.4 by giving written
notice to the Company of its request to withdraw; provided, that in the event
of
such withdrawal (other than pursuant to Section 2.4(e) hereof, the Company shall not
be
required to reimburse such Designated Holder for the fees and expenses referred
to in Section 2.8 hereof
incurred by such Designated Holder prior to such withdrawal, unless such
withdrawal was due to a material adverse change to the Company. The
Company may withdraw a Piggyback Registration at any time prior to the time
it
becomes effective.
(d) If
(i) a
Piggyback Registration involves an underwritten offering of the securities
being
registered, whether or not for sale for the account of the Company, to be
distributed (on a firm commitment basis) by or through one or more underwriters
of recognized standing under underwriting terms appropriate for such a
transaction, and (ii) the managing underwriter of such underwritten offering
shall inform the Company and Designated Holders requesting such registration
by
letter of its belief that the distribution of all or a specified number of
such
Registrable Securities concurrently with the securities being distributed by
such underwriters would interfere with the successful marketing of the
securities being distributed by such underwriters (such writing to state the
basis of such belief and the approximate number of such Registrable Securities
which may be distributed without such effect), then the Company will be required
to include in such registration only the amount of securities which it is so
advised should be included in such registration. In such event: (x)
in cases initially involving the registration for sale of securities for the
Company’s own account, securities shall be registered in such offering in the
following order of priority: (i) first, the securities which the Company
proposes to register, and (ii) second, Registrable Securities and securities
which have been requested to be included in such registration by Persons
entitled to exercise “piggy-back” registration rights pursuant to contractual
commitments of the Company (pro rata based on the amount of securities sought
to
be registered by Designated Holders and such other Persons); and (y) in cases
not initially involving the registration for sale of securities for the
Company’s own account, securities shall be registered in such offering in the
following order of priority: (i) first, the securities of any Person whose
exercise of a “demand” registration right pursuant to a contractual commitment
of the Company is the basis for the registration, (ii) second, Registrable
Securities and securities which have been requested to be included in such
registration by Persons entitled to exercise “piggy-back” registration rights
pursuant to contractual commitments of the Company (pro rata based on the amount
of securities sought to be registered by Designated Holders and such other
Persons), and (iii) third, the securities which the Company proposes to
register.
8
(e) If,
as a
result of the proration provisions of this Section 2.4, any Designated Holders shall
not be
entitled to include all Registrable Securities in a Piggyback Registration
that
such Designated Holders has requested to be included, such holder may elect
to
withdraw his request to include Registrable Securities in such
registration.
(f) The
right
of the Designated Holders to register Registrable Securities pursuant to this
Section 2.4 is only exercisable
with respect to Registrable Securities not then covered by an effective
Registration Statement.
2.5 Underwriting;
Holdback Agreements.
(a) In
the
event that one or more Designated Holders elect to dispose of Registrable
Securities under a Registration Statement pursuant to an underwritten offering
or a requested registration pursuant to Section 2.3 involves an underwritten offering,
the
managing underwriter or underwriters shall be selected by the holders of a
majority (by number of shares) of the Registrable Securities to be sold in
the
underwritten offering or requested to be included in such Registration Statement
and shall be reasonably acceptable to the Company. In connection with
any such underwritten offering, the Company shall take all such reasonable
actions as are required by the managing underwriters in order to expedite and
facilitate the registration and disposition of the Registrable Securities,
including the Company causing appropriate officers of the company or its
Affiliates to participate in a “road show” or similar marketing effort being
conducted by such managing underwriters with respect to such underwritten
offering.
(b) All
Designated Holders proposing to distribute their Registrable Securities through
an underwritten offering shall enter into an underwriting agreement in customary
form with the managing underwriters selected for such underwritten
offering.
(c) To
the
extent not inconsistent with applicable law, in connection with a public
offering of securities of the Company, upon the request of the Company or,
in
the case of an underwritten public offering of the Company’s securities, the
managing underwriters, each Designated Holder who beneficially owns (as defined
in Rule 13d-3 adopted by the SEC under the Exchange Act) at least 5% of the
outstanding capital stock of the Company will not effect any sale or
distribution (other than those included in the registration statement being
filed with respect to such public offering) of, or any short sale of, or any
grant of option to purchase, or any hedging or similar transaction with respect
to, any securities of the Company, or any securities, options or rights
convertible into or exchangeable or exercisable for such securities during
the
14 days prior to and the 90-day period beginning on the effective date of such
public offering, unless the Company, or in the case of an underwritten public
offering, the managing underwriters otherwise agree to a shorter period of
time. At the request of the Company or the managing underwriters,
each such Designated Holder shall execute a customary “lock-up” agreement
consistent with the provisions of this Section 2.5; provided, however, that no
Designated
Holder shall be required to enter into any such “lock up” agreement unless and
until all of the Company’s executive officers and directors execute
substantially similar “lock up” agreements and the Company uses commercially
reasonable efforts to cause each holder of more than 5% of its outstanding
capital stock to execute substantially similar “lock up”
agreements. Neither the Company nor the underwriter shall terminate,
materially amend or waive the enforcement of any material provision under a
“lock up” agreement unless each “lock up” agreement with a Designated Holder is
also amended or waived in a similar manner or terminated, as the case may
be. The Company may impose stop-transfer instructions to enforce the
restrictions imposed by this Section 2.5.
9
2.6 Registration
Procedures. The Company will use its reasonable best efforts to
effect the registration of Registrable Securities pursuant to this Agreement
in
accordance with the intended methods of disposition thereof, and pursuant
thereto the Company will as expeditiously as possible:
(a) before
filing the Registration Statement, the Company will furnish to any counsel
selected by the holders of a majority of the Registrable Securities a copy
of
such Registration Statement, and will provided such counsel with all written
correspondence with the SEC regarding the Registration Statement;
(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 the periods provided for in
Section 2.2 and
Section 2.3,
or the periods
contemplated by the Company or the Persons requesting any Registration Statement
filed pursuant to Section 2.4;
(c) furnish
to each Designated Holder selling such Registrable Securities such number of
copies of such Registration Statement, each amendment and supplement thereto,
the prospectus included in the Registration Statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Designated Holder;
(d) use
its
reasonable best efforts to register or qualify such Registrable Securities
under
such other state securities or blue sky laws as the selling Designated Holders
selling such Registrable Securities reasonably requests and do any and all
other
acts and things which may be reasonably necessary or reasonably advisable to
enable such Designated Holder to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such Designated Holder
and
to keep each such registration or qualification (or exemption therefrom)
effective during the period which the Registration Statement is required to
be
kept effective (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 subparagraph, (ii) subject itself to taxation
in any such jurisdiction or (iii) consent to general service of process in
any
such jurisdiction);
(e) notify
each Designated Holder selling such Registrable Securities, at any time when
a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in the Registration Statement contains an untrue statement of a material fact
or
omits any fact necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, and, at the request
of
any such Designated Holder, the Company will as soon as possible prepare and
furnish to such Designated a reasonable number of copies 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 fact necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made;
10
(f) cause
all
such Registrable Securities to be listed or quoted on each securities exchange
or quotation service on which similar securities issued by the Company are
then
listed or quoted and, if not so listed, to be approved for trading on any
automated quotation system of a national securities association on which similar
securities of the Company are quoted;
(g) provide
a
transfer agent and registrar for all such Registrable Securities not later
than
the effective date of such Registration Statement;
(h) enter
into such customary agreements (including underwriting agreements containing
customary representations and warranties) and take all other customary and
appropriate actions as the holders of a majority of the Registrable Securities
being sold or the managing underwriters, if any, reasonably request in order
to
expedite or facilitate the disposition of such Registrable
Securities;
(i) notify
each Designated Holder of any stop order issued or threatened by the
SEC;
(j) otherwise
comply with all applicable rules and regulations of the SEC, and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months beginning with the
first
day of the Company’s first full calendar quarter after the effective date of the
Registration Statement, which earnings statement shall satisfy the provisions
of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) in
the
event of the issuance of any stop order suspending the effectiveness of a
Registration Statement, or of any order suspending or preventing the use of
any
related prospectus or suspending the qualification of any securities included
in
such Registration Statement for sale in any jurisdiction, the Company will
use
its reasonable best efforts to promptly obtain the withdrawal of such
order;
(l) with
respect to an underwritten offering pursuant to any Registration Statement
filed
under Section 2.2 or
Section 2.3,
obtain one or more
comfort letters, dated the effective date of the Registration Statement and,
if
required by the managing underwriters, dated the date of the closing under
the
underwriting agreement, signed by the Company’s independent public accountants
in customary form and covering such matter of the type customarily covered
by
comfort letters in similar transactions;
(m) with
respect to an underwritten offering pursuant to any Registration Statement
filed
under Section 2.2 or
Section 2.3,
obtain a legal
opinion of the Company’s outside counsel, dated the effective date of such
Registration Statement and, if required by the managing underwriters, dated
the
date of the closing under the underwriting agreement, with respect to the
Registration Statement, each amendment and supplement thereto, the prospectus
included therein (including the preliminary prospectus) and such other documents
relating thereto in customary form and covering such matters of the type
customarily covered by legal opinions in similar transactions;
(n) subject
to execution and delivery of mutually satisfactory confidentiality agreements,
make available at reasonable times for inspection by each Designated Holder
selling such Registrable Securities, any managing underwriter participating
in
any disposition of such Registrable Securities pursuant to the Registration
Statement, and any attorney, accountant or other agent retained by such
Designated Holder or any such managing underwriter, during normal business
hours
of the Company at the Company’s corporate office in South Bend, Indiana and
without unreasonable disruption of the Company’s business or unreasonable
expense to Company and solely for the purpose of due diligence with respect
to
the Registration Statement, legally disclosable, financial and other records
and
pertinent corporate documents of the Company and its subsidiaries reasonable
requested by such Persons, and cause the Company’s employees to, and request its
independent accountants to, supply all similar information reasonably requested
by any such Person, as shall be reasonably necessary to enable them to exercise
their due diligence responsibility;
11
(o) cooperate
with each seller of Registrable Securities and each underwriter participating
in
the disposition of such Registrable Securities and their respective counsel
in
connection with any filings required to be made with the OTC Bulletin Board
or
the National Association of Securities Dealers; and
(p) take
all
other steps reasonably necessary to effect the registration of the. Registrable
Securities contemplated hereby.
2.7 Conditions
Precedent to Company’s Obligations Pursuant to this Agreement. It
shall be a condition precedent to the obligations of the Company to take any
action pursuant to this Article 2 with respect to the Registrable
Securities of any Designated Holder that such Designated Holder shall timely
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of distribution of such securities
as shall reasonably be required to effect the registration of such Designated
Holder’s Registrable Securities.
2.8 Fees
and Expenses. All expenses incident to the Company’s performance
of or compliance with this Agreement including, without limitation, all
registration and filing fees payable by the Company, fees and expenses of
compliance by the Company with securities or blue sky laws, printing expenses
of
the Company, messenger and delivery expenses of the Company, and fees and
disbursements of counsel for the Company and all independent certified public
accountants of the Company, and other Persons retained by the Company will
be
borne by the Company, and the Company will pay its internal expenses (including,
without limitation, all salaries and expenses of the Company’s employees
performing legal or accounting duties), the expense of any annual audit or
quarterly review, the expense of any liability insurance of the Company and
the
expenses and fees for listing or approval for trading of the securities to
be
registered on each securities exchange on which similar securities issued by
the
Company are then listed or on any automated quotation system of a national
securities association on which similar securities of the Company are
quoted. In connection with any Registration Statement filed
hereunder, the Company will pay the reasonable fees and expenses of a single
counsel retained by the Designated Holders of a majority (by number of shares)
of the Registrable Securities requested to be included in such Registration
Statement. The Company shall have no obligation to pay any
underwriting discounts or commissions attributable to the sale of Registrable
Securities and any of the expenses incurred by any Designated Holder which
are
not payable by the Company, such costs to be borne by such Designated Holder
or
Holders, including, without limitation, underwriting fees, discounts and
expenses, if any, applicable to any Designated Holder’s Registrable Securities;
fees and disbursements of counsel or other professionals that any Designated
Holder may choose to retain in connection with a Registration Statement filed
pursuant to this Agreement (except as otherwise provided herein); selling
commissions or stock transfer taxes applicable to the Registrable Securities
registered on behalf of any Designated Holder; any other expenses incurred
by or
on behalf of such Designated Holder in connection with the offer and sale of
such Designated Holder’s Registrable Securities other than expenses which the
Company is expressly obligated to pay pursuant to this Agreement.
2.9 Indemnification.
(a) The
Company agrees to indemnify and hold harmless, to the fullest extent permitted
by law, each Designated Holder and its general or limited partners, officers,
directors, members, managers, employees, advisors, representatives, agents
and
Affiliates (collectively, the “Representatives”), and
each underwriter, if any, and any Person who controls such underwriter (within
the meaning of Section 15 of the Securities Act), from and against any loss,
claim, damage, liability, reasonable attorney’s fees, cost or expense and costs
and expenses of investigating and defending any such claim (collectively, the
“Losses”), joint or several, and any action in respect
thereof to which such Designated Holder or its Representatives may become
subject under the Securities Act or otherwise, insofar as such Losses (or
actions or proceedings, whether commenced or threatened, in respect thereto)
arise out of or are based upon (i) any breach by the Company of any of its
representations, warranties or covenants contained in this Agreement, (ii)
any
untrue or alleged untrue statement of a material fact contained in any
Registration Statement, prospectus or preliminary or summary prospectus or
any
amendment or supplement thereto or (iii) 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, and the Company shall reimburse each
such
Designated Holder and its Representatives for any reasonable legal or any other
expenses incurred by them in connection with investigating or defending or
preparing to defend against any such Loss, action or proceeding; provided,
however, that the Company shall not be liable to any such Designated Holder
or
other indemnitee in any such case to the extent that any such Loss (or action
or
proceeding, whether commenced or threatened, in respect thereof) arises out
of
or is based upon (x) an untrue statement or alleged untrue statement or omission
or alleged omission, made in such Registration Statement, any such prospectus
or
preliminary or summary prospectus or any amendment or supplement thereto, in
reliance upon, and in conformity with, written information prepared and
furnished to the Company by any Designated Holder or its Representatives
expressly for use therein and, with respect to any untrue statement or omission
or alleged untrue statement or omission made in any preliminary prospectus
relating to the Registration Statement, to the extent that a prospectus relating
to the Registrable Securities was required to be delivered by such Designated
Holder under the Securities Act in connection with such purchase, there was
not
sent or given to such Person, at or prior to the written confirmation of the
sale of such Registrable Securities to such Person, a copy of the final
prospectus that corrects such untrue statement or alleged untrue statement
or
omission or alleged omission if the Company had previously furnished copies
thereof to such Designated Holder or (y) use of a Registration Statement or
the
related prospectus during a period when a stop order has been issued in respect
of such Registration Statement or any proceedings for that purpose have been
initiated or use of a prospectus when use of such prospectus has been suspended
pursuant to Sections 2.6(e) or (i); provided that in each case, that
such Holder received prior written notice of such stop order, initiation of
proceedings or suspension from the Company. In no event, however,
shall the Company be liable for indirect, incidental or consequential or special
damages of any kind.
12
(b) In
connection with the filing of the Registration Statement by the Company pursuant
to this Agreement, the Designated Holders will furnish to the Company in writing
such information as the Company reasonably requests for use in connection with
such Registration Statement and the related prospectus and, to the fullest
extent permitted by law, each such Designated Holder will indemnify and hold
harmless the Company and its Representatives, and each underwriter, if any,
and
any Person who controls such underwriter (within the meaning of Section 15
of
the Securities Act), from and against any Losses, severally but not jointly,
and
any action in respect thereof to which the Company and its Representatives
may
become subject under the Securities Act or otherwise, insofar as such Losses
(or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon (i) the purchase or sale of Registrable
Securities during a suspension as set forth in Section 2.6(e) or Section 2.6(i)
in each case after receipt of written
notice of such suspension, (ii) any untrue or alleged untrue statement of a
material fact contained in the Registration Statement, prospectus or preliminary
or summary prospectus or any amendment or supplement thereto, or (iii) any
omission or alleged omission of a material fact required to be stated therein
or
necessary to make the statements therein not misleading, but, with respect
to
clauses (ii) and (iii) above, only to the extent that such untrue statement
or
omission is made in such Registration Statement, any such prospectus or
preliminary or summary prospectus or any amendment or supplement thereto, in
reliance upon and in conformity with written information prepared and furnished
to the Company by such Designated Holder expressly for use therein or by failure
of such Designated Holder to deliver a copy of the Registration Statement or
prospectus or any amendments or supplements thereto, and such Designated Holder
will reimburse the Company and each Representative for any reasonable legal
or
any other expenses incurred by them in connection with investigating or
defending or preparing to defend against any such Loss, action or proceeding;
provided, however, that such Designated Holder shall not be liable in any such
case to the extent that prior to the filing of any such Registration Statement
or prospectus or amendment or supplement thereto, such Designated Holder has
furnished in writing to the Company information expressly for use in such
Registration Statement or prospectus or any amendment or supplement thereto
which corrected or made not misleading information previously furnished to
the
Company. The obligation of each Designated Holder to indemnify the
Company and its Representatives shall be limited to the net proceeds received
by
such Designated Holder from the sale of Registrable Securities under such
Registration Statement. In no event, however, shall any Designated
Holder be liable for indirect, incidental or consequential or special damages
of
any kind.
(c) Promptly
after receipt by any Person in respect of which indemnity may be sought pursuant
to Section 2.9(a) or 2.9(b)
(an “Indemnified
Party”) of notice of any claim or the commencement of any action,
the Indemnified Party shall, if a claim in respect thereof is to be made against
the Person against whom such indemnity may be sought (an
“Indemnifying Party”), promptly notify the
Indemnifying Party in writing of the claim or the commencement of such action;
provided, that the failure to notify the Indemnifying Party shall not relieve
the Indemnifying Party from any liability which it may have to an Indemnified
Party under Section 2.9(a) or 2.9(b)
except to the extent of any actual
prejudice resulting therefrom. 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 reasonably
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
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 Indemnified Party shall have the right to
employ separate counsel to represent the Indemnified Party and its
Representatives who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Indemnified Party against the
Indemnifying Party, but the fees and expenses of such counsel shall be for
the
account of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such counsel
or
(ii) in the written opinion of counsel to such Indemnified Party, representation
of both parties by the same counsel would be inappropriate due to actual or
potential conflicts of interest between them, it being understood, however,
that
the Indemnifying Party shall not, in connection with any one such claim or
action or separate but substantially similar or related claims or actions in
the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all Indemnified
Parties. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any claim or pending
or threatened proceeding in respect of which the Indemnified Party is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release
of
such Indemnified Party from all liability arising out of such claim or
proceeding other than the payment of monetary damages by the Indemnifying Party
on behalf of the Indemnified Party. Whether or not the defense of any
claim or action is assumed by the Indemnifying Party, such Indemnifying Party
will not be subject to any liability for any settlement made without its written
consent, which consent will not be unreasonably withheld.
(d) If
the
indemnification provided for in this Section 2.9 is unavailable to the Indemnified
Parties
in respect of any Losses referred to herein notwithstanding that this
Section 2.9 by its terms
provides for indemnification in such case, then each Indemnifying Party, in
lieu
of indemnifying such Indemnified Party, shall contribute to the amount paid
or
payable by such Indemnified Party as a result of such Losses in such proportion
as is appropriate to reflect the relative benefits received by the Company
on
the one hand and the Designated Holders on the other from the offering of the
Registrable Securities, or if such allocation is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits but also the relative fault of the Company on the one hand and the
Designated Holders on the other in connection with the statements or omissions
which resulted in such Losses, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of each
Designated Holder on the other shall be determined by reference to, among other
things, whether any action taken, including any 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 such party, and the parties’
relative intent, knowledge, access to information and opportunity to correct
or
prevent such statement or omission.
13
The
Company and the Designated Holders agree that it would not be just and equitable
if contribution pursuant to this Section 2.9(d) were determined by pro rata
allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a
result of the Losses referred to in the immediately preceding paragraph shall
be
deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 2.9, no Designated Holder shall
be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities of such Designated Holder were offered to the public
exceeds the amount of any Losses which such Designated Holder has otherwise
paid
by reason of such untrue or alleged untrue statement or omission or alleged
omission. 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. Each Designated Holder’s obligations to contribute
pursuant to this Section 2.9 is
several in the proportion that the proceeds of the offering received by such
Designated Holder bears to the total proceeds of the offering received by all
the Designated Holders. The indemnification provided by this
Section 2.9 shall be a
continuing right to indemnification with respect to sales of Registrable
Securities and shall survive the registration and sale of any Registrable
Securities by any Designated Holder and the expiration or termination of this
Agreement. The indemnity and contribution agreements contained herein
are in addition to any liability that any Indemnifying Party might have to
any
Indemnified Party.
(e) Notwithstanding
the foregoing, to the extent the provisions on indemnification and contribution
contained in the underwriting agreement entered into in connection with an
underwritten public offering are in conflict with the foregoing provisions,
the
provisions in the underwriting agreement shall control for parties to that
agreement.
2.10 Participation
in Registrations.
(a) No
Person
may participate in any registration hereunder which is underwritten 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 arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements and this
Agreement.
(b) Each
Person that is participating in any registration under this Agreement agrees
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 2.6(e) or Section 2.6(i)
above, such Person will forthwith
discontinue the disposition of its Registrable Securities pursuant to the
Registration Statement and all use of the Registration Statement or any
prospectus or related document until such Person’s receipt of the copies of a
supplemented or amended prospectus as contemplated by such
Section 2.6(e) or
Section 2.6(i)
and, if so
directed by the Company, will deliver to the Company (at the Company’s expense)
all copies, other than permanent file copies, then in such Designated Holder’s
possession of such documents at the time of receipt of such
notice. Furthermore, each Designated Holder agrees that if such
Designated Holder uses a prospectus in connection with the offering and sale
of
any of the Registrable Securities, the Designated Holder will use only the
latest version of such prospectus provided by Company.
14
2.11 Compliance. With
respect to any registration under this Agreement, each Designated Holder shall
comply in all material respects with all applicable securities and other laws,
rules and regulations, including but not limited to all rules and regulations
of
the SEC, the National Association of Securities Dealers and any securities
exchange or quotation service on which the Company’s securities are listed or
quoted.
ARTICLE
3
TRANSFERS
OF CERTAIN RIGHTS
3.1 Transfer. The rights granted to the Buyers under this Agreement may be transferred, subject to the provisions of Sections 3.2 and 3.3; provided that nothing contained herein shall be deemed to permit an assignment, transfer or disposition of the Registrable Securities in violation of the terms and conditions of the Securities Purchase Agreement or applicable law.
3.2 Transferees. Any
transferee to whom rights under this Agreement are transferred shall, before
and
as a condition to such transfer, deliver to the Company a written instrument
(i)
stating the name and address of the transferor and the transferee and the number
of Registrable Securities with respect to which the rights are intended to
be
transferred, and (ii) by which such transferee agrees to be bound by the
obligations imposed upon the Buyers under this Agreement to the same extent
as
if such transferee were a Buyer hereunder.
3.3 Subsequent
Transferees. A transferee to whom rights are transferred pursuant
to this Section 3 may not again transfer such rights to any other
Person, other than as provided in Sections 3.1 or 3.2
above.
ARTICLE
4
MISCELLANEOUS
4.1 Recapitalizations,
Exchanges, etc. The provisions of this Agreement shall apply to
the full extent set forth herein with respect to (a) the Registrable Securities,
(b) any and all shares of Common Stock into which the Registrable Securities
are
converted, exchanged or substituted in any recapitalization or other capital
reorganization by the Company, and (c) any and all equity securities of the
Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect
of,
in conversion of, in exchange for or in substitution of, the Registrable
Securities and shall be appropriately adjusted for any stock dividends, splits,
reverse splits, combinations, recapitalizations and the like occurring after
the
date hereof. The Company shall cause any successor or assign (whether by merger,
consolidation, sale of assets or otherwise) to enter into a new registration
rights agreement with the Designated Holders on terms substantially the same
as
this Agreement as a condition of any such transaction.
4.2 No
Inconsistent Agreements. The Company has not and shall not enter
into any agreement with respect to its securities that is inconsistent with
the
rights granted to the Buyers in this Agreement. The parties
acknowledge and agree that the Company may grant registration rights hereafter,
which shall be pari passu with the registration rights of the Buyers, and shall
not be deemed to conflict with this covenant.
15
4.3 Amendments
and Waivers. The provisions of this Agreement may be amended and
the Company may take action herein prohibited, or omit to perform any act herein
required to be performed by it, if, but only if, the Company has obtained the
written consent of Designated Holders of at least a majority of the Registrable
Securities then in existence.
4.4 Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of
this
Agreement shall be held to be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such prohibition
or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
4.5 Counterparts. This
Agreement may be executed in one or more counterparts each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
4.6 Notices. Any
notices required or permitted to be given under the terms of this Agreement
shall be sent by certified or registered mail (return receipt requested) or
delivered personally or by courier (including a recognized overnight delivery
service) or by facsimile and shall be effective five days after being placed
in
the mail, if mailed by regular United States mail, or upon receipt, if delivered
personally or by courier (including a recognized overnight delivery service)
or
by facsimile, in each case addressed to a party. The addresses for
such communications shall be:
If
to the
Company:
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇. ▇▇▇▇▇▇
▇▇▇▇▇
▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
With
copy
to:
▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇▇ LLP
600
1st Source
Center
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
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If
to the
Buyer:
Tontine
Capital Partners, L.P.
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
With
copy
to:
Barack
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Each
party shall provide notice to the other party of any change in
address.
4.7 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana, without regard to the
conflicts of laws rules or provisions.
4.8 Forum;
Service of Process. Any legal suit, action or proceeding brought
by the Company, Buyers, any other Designated Holders, any Person entitled to
indemnification or contribution hereunder, or any of their respective Affiliates
arising out of or based upon this Agreement shall be instituted exclusively
in
any federal or state court in the State of Indiana, and each such Person
irrevocably waives any objection which it may now or hereafter have to the
laying of venue or any such proceeding, and irrevocably submits to the
jurisdiction of such courts in any such suit, action or proceeding.
4.9 Captions. The
captions, headings and arrangements used in this Agreement are for convenience
only and do not in any way limit or amplify the terms and provisions
hereof.
4.10 No
Prejudice. The terms of this Agreement shall not be construed in
favor of or against any party on account of its participation in the preparation
hereof.
4.11 Words
in Singular and Plural Form. Words used in the singular form in
this Agreement shall be deemed to import the plural, and vice versa, as the
sense may require.
4.12 Remedy
for Breach. The Company hereby acknowledges that in the event of
any breach or threatened breach by the Company of any of the provisions of
this
Agreement, the Designated Holders would have no adequate remedy at law and
could
suffer substantial and irreparable damage. Accordingly, the Company
hereby agrees that, in such event, the Designated Holders shall be entitled,
and
notwithstanding any election by any Designated Holder to claim damages, to
obtain a temporary and/or permanent injunction to restrain any such breach
or
threatened breach or to obtain specific performance of any such provisions,
all
without prejudice to any and all other remedies which any Designated Holders
may
have at law or in equity.
4.13 Successors
and Assigns, Third Party Beneficiaries. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto, each assignee of the Designated Holders pursuant to Article
3 and their respective successors and assigns and executors, administrators
and heirs. Designated Holders are intended third party beneficiaries
of this Agreement and this Agreement may be enforced by such Designated
Holders.
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4.14 Amendment
and Restatement. This Agreement amends and restates in its
entirety the Initial Registration Rights Agreement and sets forth the entire
agreement and understanding between the parties as to the subject matter hereof
and merges and supersedes all prior discussions, agreements and understandings
of any and every nature among them.
4.15 Attorneys’
Fees. In the event of any action or suit based upon or arising
out of any actual or alleged breach by any party of any representation,
warranty, covenant or agreement in this Agreement, the prevailing party shall
be
entitled to recover its reasonable attorneys’ fees and expenses of such action
or suit from the other party in addition to any other relief ordered by any
court.
4.16 Termination
of Rights. All rights under this Agreement will terminate as to a
Designated Holder when that Designated Holder no longer holds any Registrable
Securities.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amended and Restated
Registration Rights Agreement to be duly executed as of the date and year first
written above.
|
COMPANY:
|
||
|
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
|
Title:
|
President | |
|
BUYERS:
|
||||
|
TONTINE
CAPITAL PARTNERS, L.P.
|
||||
|
By:
|
Tontine
Capital Management, LLC, its general partner
|
|||
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, as managing member
|
||||
|
TONTINE
CAPITAL OVERSEAS MASTER FUND, L.P.
|
||||
|
By:
|
Tontine
Capital Overseas GP, L.L.C., its general partner
|
|||
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, as managing member
|
||||
19