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Exhibit 99.2
▇▇▇▇.▇▇▇, INC.
REGISTRATION RIGHTS AGREEMENT
February 8, 2001
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▇▇▇▇.▇▇▇, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made as of February 8, 2001 (the
"AGREEMENT") by and among ▇▇▇▇.▇▇▇, Inc., a Delaware corporation ("▇▇▇▇.▇▇▇"),
and each of the investors listed on the signature pages hereof (the
"INVESTORS").
RECITALS
A. ▇▇▇▇.▇▇▇ desires to sell and issue to the Investors and the
Investors desire to purchase from ▇▇▇▇.▇▇▇ 10% Senior Convertible Notes (the
"NOTES") of ▇▇▇▇.▇▇▇ pursuant to a Note Exchange Agreement of even date herewith
(the "NOTE EXCHANGE AGREEMENT").
B. In order to induce the Investors to purchase Notes pursuant to the
Note Exchange Agreement, ▇▇▇▇.▇▇▇ desires to grant to the holders of Notes (the
"HOLDERS") certain registration rights with respect to all of the shares of
Class A common stock, par value $.01 per share, issuable upon conversion of the
Notes (the "Conversion Shares") and all of the Class A common stock, par value
$.01 per share, issuable in payment of interest on the Notes as provided in the
Notes (the "Interest Payment Shares"), all on the terms and conditions set forth
herein.
In consideration of the foregoing and the promises and covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the
following respective meanings:
"ACT" means the U.S. Securities Act of 1933, as amended from time
to time.
"AGREEMENT" means this Agreement, as the same may be amended or
supplemented from time to time in accordance with the terms hereof.
"COMMON STOCK" means the shares of Class A common stock, par value
$.01 per share, that ▇▇▇▇.▇▇▇ is authorized to issue by way of ▇▇▇▇.▇▇▇'s
Amended and Restated Certificate of Incorporation, and amendments thereto.
"CONVERSION SHARES" has the meaning set forth in the recitals
above.
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"DEMAND REGISTRATION" has the meaning set forth in SECTION 2.01(a)
of this Agreement.
"HOLDERS" has the meaning set forth in the preface above.
"INDEMNIFIED PARTY" and "INDEMNIFYING PARTY" have the meanings set
forth in SECTION 2.07(c) of this Agreement.
"INTEREST PAYMENT SHARES" has the meaning set forth in the recitals
above.
"PIGGYBACK REGISTRATION" has the meaning set forth in Section 2.02
of this Agreement.
"REGISTRABLE SECURITIES" means (i) the Conversion Shares and the
Interest Payment Shares, (ii) any Class A common stock of ▇▇▇▇.▇▇▇ issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
that is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of the securities referenced in clause (i) and
this clause (ii), and (iii) any other shares of capital stock of ▇▇▇▇.▇▇▇ into
or for which the securities referenced in clauses (i) and (ii) may be converted
into or exchanged pursuant to a recapitalization or reclassification of
▇▇▇▇.▇▇▇'s capital stock; provided, however, that Registrable Securities shall
not include any securities that (w) have been registered and sold pursuant to
the Act, (x) have been distributed to the public through a broker, dealer or
market maker pursuant to Rule 144 under the Act, (y) are eligible for public
resale under Rule 144(k) under the Securities Act or in accordance with the law
governing any non-U.S. exchange where the Common Stock is publicly listed or (z)
have been sold in a transaction exempt from registration under the Act so that
all transfer restriction and restrictive legends with respect thereto are
removed upon consummation of such sale.
"REGISTRATION EXPENSES" means all expenses incident to ▇▇▇▇.▇▇▇'s
performance of or compliance with this Agreement, including, without limitation,
(i) all registration, filing, securities exchange listing, rating agency and
National Association of Securities Dealers fees, (ii) all registration, filing,
qualification and other fees and expenses of complying with securities or blue
sky laws of all jurisdictions in which the securities are to be registered and
any legal fees and expenses incurred in connection with the blue sky
qualification of the Registrable Securities and the determination of their
eligibility for investment under the laws of all such jurisdictions, (iii) all
word processing, duplicating, printing, messenger and delivery expenses, (iv)
the fees and disbursements of counsel for ▇▇▇▇.▇▇▇ and of its independent public
accountants, including, without limitation, the expenses of any special audits
or "cold comfort" letter required by or incident to such performance and
compliance, (v) in connection with any firm commitment, underwritten offering,
the reasonable fees and disbursements of any one counsel or one accounting firm
retained by the Holders of the Registrable Securities being registered, not to
exceed $15,000 in the aggregate for all of such fees and disbursements, (vi)
premiums and other costs of policies of insurance of ▇▇▇▇.▇▇▇ against
liabilities arising out of the public offering of the Registrable Securities
being registered to the extent ▇▇▇▇.▇▇▇ elects to obtain such insurance, and
(vii) any fees and disbursements of underwriters customarily paid by issuers or
sellers of securities (but excluding underwriting discounts and commissions), if
any, relating to the Registrable Securities.
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"SEC" means the U.S. Securities and Exchange Commission.
Other capitalized terms that are used herein that are not defined herein shall
have the respective meanings ascribed to such terms in the Note Exchange
Agreement.
ARTICLE II
REGISTRATION RIGHTS
▇▇▇▇.▇▇▇ and the Investors covenant and agree as follows:
Section 2.01 Form S-3 Registration
(a) Demand Registration. Promptly after the Closing Date (and in any
event not later than the time of filing any registration statement covering
shares issuable upon conversion of the Company's outstanding 10% Senior
Convertible Notes under the Note Purchase Agreement dated January 8, 2001),
▇▇▇▇.▇▇▇ agrees to prepare and file a shelf registration statement on Form S-3
or other available form for an offering to be made on a continuous basis
pursuant to Rule 415 (the "Registration Statement") covering all of the
Registrable Securities and to use reasonable commercial efforts to cause the
Registration Statement to become effective as soon as practicable thereafter
(the "DEMAND REGISTRATION"); provided, however, (1) ▇▇▇▇.▇▇▇ may delay the
filing or effectiveness of the Registration Statement under the Act as required
by this SECTION 2.01, or any sales thereunder, for a period of up to sixty (60)
days if ▇▇▇▇.▇▇▇ is currently engaged in negotiating a material financing or
acquisition or disposition or other material corporate transaction and the Board
of Directors of ▇▇▇▇.▇▇▇ determines in good faith that such Demand Registration
would be materially adverse to the interests of ▇▇▇▇.▇▇▇ in connection with such
financing, acquisition, disposition or other transaction; provided, however,
that ▇▇▇▇.▇▇▇ may not exercise this right more than twice in any twelve (12)
month period and (2) in no event shall ▇▇▇▇.▇▇▇ be required to file more than
one registration statement; provided, however, that if, after a Demand
Registration has become effective, the offering of Registrable Securities
pursuant thereto is suspended, blocked by any stop order, injunction or other
order of the SEC or any governmental agency or court, or withdrawn, such Demand
Registration will be deemed not to have been effected pursuant to this Section
2.01. If the Registration Statement in connection with a Demand Registration
shall not become effective on or before 120 days after the Closing Date, then
▇▇▇▇.▇▇▇ shall pay to each such holder an amount equal to 1% per month (2% per
month if the Registration Statement has not become effective initially on or
before 240 days after the Closing Date) of the principal amount of the Exchange
Notes held by such holder (pro rated for partial months) from such 120th day or
240th day, as applicable, until the earlier of the date on which the
Registration Statement becomes effective and the second anniversary of the
issuance of the Exchange Notes.
(b) Selection of Underwriters. If a Demand Registration pursuant to
this SECTION 2.01 involves an firm commitment underwritten offering, the
underwriter or underwriters (including the managing underwriter or underwriters)
thereof shall be a nationally-recognized investment banking firm selected by a
majority of the Holders requesting the underwritten offering, subject
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to ▇▇▇▇.▇▇▇'s approval (and subject to any contractual commitments that ▇▇▇▇.▇▇▇
may then have to any investment banking firm). Such approval will not be
unreasonably withheld.
(c) Underwritten Offerings. If requested by the underwriters for any
firm commitment underwritten offering by Holders pursuant to a Demand
Registration under SECTION 2.01(A), ▇▇▇▇.▇▇▇ will enter into an underwriting
agreement with such underwriters for such offering, such agreement to be
reasonably satisfactory in substance and form to the underwriters and to contain
such representations and warranties by ▇▇▇▇.▇▇▇ and such other terms as are
generally prevailing in agreements of such type, including, without limitation,
indemnities and contribution to the effect and to the extent provided in SECTION
2.07 and 2.08, respectively. The Holders of a majority of the Registrable
Securities participating in such underwritten offering will cooperate with
▇▇▇▇.▇▇▇ in the negotiation of the underwriting agreement. The Holders of
Registrable Securities to be distributed by such underwriters shall be parties
to such underwriting agreement and may, at their option, require that any or all
of the representations and warranties by, and the other agreements on the part
of, ▇▇▇▇.▇▇▇ 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. Any such Holder shall not be required to make any representations or
warranties to or agreements with ▇▇▇▇.▇▇▇ or the underwriters other than
representations, warranties or agreements regarding such Holder, such Holder's
title to Registrable Securities and such Holder's intended method of
distribution and any other representation required by law.
SECTION 2.02 Piggyback Registration. (a) Right to Piggyback. If
▇▇▇▇.▇▇▇ proposes to register any of its securities under the Act in connection
with a firm commitment underwritten offering (other than registrations solely
for the registration of shares in connection with an employee benefit plan or a
merger or consolidation and other than pursuant to SECTION 2.01) at any time
before all of the Registrable Securities are eligible for public resale by the
Holders pursuant to Rule 144(k) under the Act, whether or not for sale for
▇▇▇▇.▇▇▇'s own account, and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), ▇▇▇▇.▇▇▇
will at each such time give prompt written notice to all Holders of its
intention to do so and of such Holders' rights under this SECTION 2.02. Upon the
written request of any such Holder made within 30 days after the receipt of any
such notice (which request shall specify the Registrable Securities intended to
be disposed of by such Holder and the intended method of distribution thereof),
▇▇▇▇.▇▇▇ will use its reasonable commercial efforts to effect the registration
under the Act of all Registrable Securities which ▇▇▇▇.▇▇▇ has been so requested
to register by the Holders thereof, to the extent required to permit the
disposition (in accordance with such intended methods thereof) of the
Registrable Securities so to be registered, provided that if, at any time after
giving written notice of its intention to register any securities and prior to
the effective date of the registration statement filed in connection with such
registration, ▇▇▇▇.▇▇▇ shall determine for any reason not to register or to
delay registration of such securities, ▇▇▇▇.▇▇▇ may, at its election, give
written notice of such determination to each Holder and, thereupon, (i) in the
case of a determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration (but
not from its obligation to pay the registration expenses under SECTION 2.05 in
connection therewith), without prejudice, however, to the rights of any Holder
entitled to do so to request that such registration be effected as a Demand
Registration under SECTION 2.01, and (ii) in the case of a
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determination to delay registering, shall be permitted to delay registering any
Registrable Securities, for the same period as the delay in registering such
other securities. No registration effected under this SECTION 2.02 shall relieve
▇▇▇▇.▇▇▇ of its obligation to effect any Demand Registration upon request under
SECTION 2.01.
(b) Priority in Piggyback Registrations. If the managing underwriter of
a Piggyback Registration advises ▇▇▇▇.▇▇▇ in writing that, in its opinion, the
number of shares of Registrable Securities requested or proposed to be included
in such offering exceeds the number that can be sold in such offering without
materially affecting the offering price of any such securities, ▇▇▇▇.▇▇▇ shall
include in such registration (i) first, to the extent that securities of
▇▇▇▇.▇▇▇ are included in such registration, (A) such securities proposed to be
sold by ▇▇▇▇.▇▇▇ and (B) the securities of ▇▇▇▇.▇▇▇ held by persons who have
preferential registration rights to include such securities in such Piggyback
Registration in accordance with the agreements with respect to such registration
rights between ▇▇▇▇.▇▇▇ and such holders; and (ii) second, to the extent that
such Registrable Securities may be included in such registration without
materially affecting the offering price of the securities referred to in clause
(i), in the opinion of such managing underwriter, the Registrable Securities
requested by the Holders to be included in such Piggyback Registration pursuant
to SECTION 2.02(a) and any other securities of ▇▇▇▇.▇▇▇ held by persons other
than the Holders having rights to participate in such Piggyback Registration
that are non-preferential to the Holders of the Registrable Securities, pro rata
among all such holders on the basis of the total number of securities of
▇▇▇▇.▇▇▇, including Registrable Securities, requested by each such holder to be
included therein.
(c) Selection of Underwriters. ▇▇▇▇.▇▇▇ shall select the investment
banker(s) and manager(s) for the offering.
(d) Underwritten Piggyback Registrations. If ▇▇▇▇.▇▇▇ at any time
proposes to register any of its securities under the Act as to which rights
under this SECTION 2.02 have been exercised and such securities are to be
distributed by or through one or more underwriters, ▇▇▇▇.▇▇▇ will, if requested
by any Holder as provided in SECTION 2.02(a) and subject to the provisions of
SECTION 2.02 (a) AND (b), use its reasonable commercial efforts to arrange for
such underwriters to include all the Registrable Securities to be offered and
sold by such Holder among the Securities to be distributed by such underwriters.
Such Holders of the Registrable Securities to be distributed by such
underwriters shall be parties to the underwriting agreement between ▇▇▇▇.▇▇▇ and
such underwriters and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of,
▇▇▇▇.▇▇▇ to and for the benefit of such underwriters shall also be made to and
for the benefit of such Holders and that any or all of the conditions precedent
to the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such Holders. Any such Holder shall
not be required to make any representations or warranties to or agreements with
▇▇▇▇.▇▇▇ or the underwriters other than representations, warranties or
agreements regarding such Holder, such Holder's title to Registrable Securities
and such Holder's intended method of distribution and any other representation
required by law.
Section 2.03 Obligations of ▇▇▇▇.▇▇▇. In furtherance of its obligations
under SECTION 2.01 OR 2.02 to use its commercially reasonable efforts to effect
the registration of the Registrable Securities, ▇▇▇▇.▇▇▇ shall, as expeditiously
as reasonably possible,
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(a) Prepare and file with the SEC a registration statement with respect
to such Registrable Securities and use its commercially reasonable efforts to
cause such registration statement to become effective and keep such registration
statement effective until (i) in the case of a Demand Registration, the time
when all Registrable Securities are eligible for sale by the Holders pursuant to
Rule 144(k) and (ii) in the case of a Piggyback Registration, until 90 days
after the effectiveness of such 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 comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration until the earlier of
the time periods specified in SECTION 2.03(a) and such time as all of such
securities have been disposed of in accordance with the intended methods of
disposition by the Holders set forth in such registration statement;
(c) Furnish to the Holders such numbers of copies of such registration
statement and of each amendment and supplement thereto (in each case including
all exhibits) and prospectus, including any preliminary prospectus, in
conformity with the requirements of the Act, and such other documents as the
Holders may reasonably request in order to facilitate the disposition of the
Registrable Securities;
(d) Use its commercially reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions (domestic or foreign) as each Holder thereof
shall reasonably request, to keep such registration or qualification in effect
for so long as such registration statement remains in effect, and to take any
other action which may be reasonably necessary or advisable to enable such
Holder to consummate the disposition in such jurisdictions of the securities
owned by such Holder, except that ▇▇▇▇.▇▇▇ shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this SECTION
2.03(d) be obligated to be so qualified, to subject itself to taxation in any
such jurisdiction or to consent to general service of process in any such
jurisdiction;
(e) Use its reasonable commercial efforts to (i) obtain the withdrawal
of any order suspending the effectiveness of such registration statement or
sales thereunder at the earliest possible time and (ii) cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the Holders thereof to consummate the disposition of such Registrable
Securities;
(f) In connection with any firm commitment underwritten offering,
furnish to each Holder a signed counterpart, addressed to such Holder (and the
underwriters, if any) of
(i) an opinion of counsel for ▇▇▇▇.▇▇▇ dated the date of the
closing under the underwriting agreement, reasonably satisfactory in
form and substance to such underwriter, and
(ii) a "comfort" letter, dated the effective date of such
registration statement (and dated the date of the closing under the
underwriting
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agreement), signed by the independent public accountants who have
certified ▇▇▇▇.▇▇▇'s financial statements included in such registration
statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to the underwriters in underwritten public
offerings of securities;
(g) Notify in writing each Holder, at any time when a prospectus
relating thereto is required to be delivered under the Act, (a) upon discovery
that, or upon the happening of any event as a result of which, the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, and (b) of any request
for any amendment of or supplement to any registration statement or other
document relating to such offering promptly after receipt of such request from
the SEC or any other regulatory body or other body having jurisdiction and, in
either case, at the request of any such Holder promptly prepare and furnish to
such Holder a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made;
(h) Otherwise comply with all applicable federal and state securities
laws and rules and regulations of the SEC, and make available to the Holders, as
soon as reasonably practicable, an earning statement covering the period of at
least twelve months, but not more than eighteen months, beginning with the first
full calendar month after the effective date of such registration statement,
which earning statement shall satisfy the provisions of Section 11(a) of the Act
and Rule 158 under the Act, and will furnish to each Holder draft and final
versions of each registration statement and prospectus used in connection
therewith prior to the filing thereof, and any amendment or supplement to such
registration statement or prospectus and shall not file any thereof to which any
Holder shall have reasonably objected on the grounds that such registration
statement, prospectus, amendment or supplement does not comply in all material
respects with the requirements of the Act or the rules or regulations
thereunder;
(i) Provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such registration statement from and
after a date not later than the effective date of such registration statement;
and
(j) Use its reasonable commercial efforts to list all Registrable
Securities covered by such registration statement on each securities exchange
and inter-dealer quotation system on which similar securities issued by ▇▇▇▇.▇▇▇
are then listed.
▇▇▇▇.▇▇▇ may require each Holder as to which any registration is being
effected to furnish ▇▇▇▇.▇▇▇ such information regarding such Holder and the
distribution of such securities as ▇▇▇▇.▇▇▇ may from time to time reasonably
request in writing.
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Section 2.04 Furnish Information. It shall be a condition precedent to
the obligations of ▇▇▇▇.▇▇▇ to take any action pursuant to Article 2 that the
Holders shall furnish to ▇▇▇▇.▇▇▇ such information regarding such Holders, the
Registrable Securities held by such participating Holders and the intended
method of disposition thereof as ▇▇▇▇.▇▇▇ or its appointed agents shall
reasonably request and as shall be required in connection with the action to be
taken by ▇▇▇▇.▇▇▇.
Section 2.05 Registration Expenses. In the case of any registration
effected pursuant to SECTION 2.01 OR 2.02, ▇▇▇▇.▇▇▇ shall bear all Registration
Expenses; provided, however, that the Holders shall bear the fees and costs of
its own counsel (other than to the extent provided in the definition of
"Registration Expenses" in connection with a firm commitment, underwritten
offering) and all brokers' discounts and commissions with respect to the
Registrable Securities sold by such Person.
Section 2.06 Use of Prospectus.
Each Holder agrees that if ▇▇▇▇.▇▇▇ notifies the Holder in
writing of the happening of any event as a result of which the prospectus
included in such registration statement contains an untrue statement of a
material fact or omits any fact necessary to make the statements therein not
misleading, the Holder will discontinue immediately its disposition of
securities pursuant to the registration statement until the Holder receives
copies of an amended or supplemented prospectus, and if so directed by ▇▇▇▇.▇▇▇,
will deliver to ▇▇▇▇.▇▇▇ all copies then in Holder's possession of the
prospectus relating to such Registrable Securities current at the time of
receipt of such notice.
Section 2.07 Indemnification. If any Registrable Securities are
included in a registration statement pursuant to SECTION 2.01 OR 2.02, then,
(a) ▇▇▇▇.▇▇▇ shall indemnify and hold harmless the Holders, agents for
and officers and directors of the Holders, any underwriter of the Registrable
Securities, and each Person, if any, who controls any such Person within the
meaning of the Act, against any losses, claims, damages or liabilities, joint or
several (or actions in respect thereof), to which they may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained in
the registration statement, or any amendments or supplements to the registration
statement, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or any violation by ▇▇▇▇.▇▇▇ of any
rule or regulation promulgated under the Act or any state securities law or rule
or regulation applicable to ▇▇▇▇.▇▇▇, and will reimburse the Holders, the agents
for, and officers and directors of the Holders, any underwriter of the
Registrable Securities, or any such controlling Person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that ▇▇▇▇.▇▇▇ shall not be liable to any Holder in any such case to the extent
that any such loss, claim, damage
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or liability arises out of or is based upon any untrue statement or omission
based upon and in conformity with information furnished to ▇▇▇▇.▇▇▇ in writing
by such Holder.
(b) Each Holder shall indemnify and hold harmless ▇▇▇▇.▇▇▇, each of its
directors and each of its officers who have signed such registration statement
against any losses, claims, damages or liabilities to which ▇▇▇▇.▇▇▇ or any such
director or officer may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities arise out of or are based upon any
untrue or alleged untrue statement of any material fact contained in such
registration statement, including any preliminary prospectus or final prospectus
contained in the registration statement or any amendments or supplements to the
registration statement, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in such registration
statement, preliminary prospectus, or amendments or supplement thereto, in
reliance upon and in conformity with information furnished by the Holder in
writing expressly for the purpose of inclusion in such registration statement,
preliminary prospectus or amendments or supplements, and the Holders will
reimburse any legal or other expenses actually and reasonably incurred by
▇▇▇▇.▇▇▇ or any such director, officer or controlling Person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, that the Holder's liability under this SECTION 2.06(b) shall not
exceed the amount of the gross proceeds of the offering of the Holder's
Registrable Securities included therein.
(c) Each party entitled to indemnification (the "INDEMNIFIED PARTY")
shall give notice to the party required to provide indemnification
("INDEMNIFYING PARTY") promptly after such Indemnified Party has knowledge of
any claim as to which indemnity may be sought, and shall permit the Indemnifying
Party (at its expense) to assume the defense of any such claim or any litigation
resulting therefrom; provided, however, that counsel for the Indemnifying Party,
who shall conduct the defense of such claim or litigation, shall be reasonably
satisfactory to the Indemnified Party, and the Indemnified Party may participate
in such defense at such party's expense; provided, further, that the failure by
any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this SECTION 2.06, except to the
extent that the failure results in an omission of actual notice to the
Indemnifying Party and such Indemnifying Party is materially damaged as a result
of the failure to give notice. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to the entry of any judgment or enter into any settlement that does not
include as an unconditional term the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability with respect to such claim or
litigation.
Section 2.08 Contribution. (a) If the indemnification provided for in
SECTION 2.07 is unavailable to the Indemnified Party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each such 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, claims, damages or liabilities (or
actions in respect thereof) 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 the statement or
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omission which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue statement (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 statement or omission. The Company and
each Holder agree that it would not be just and equitable if contribution
pursuant to this SECTION 2.08 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above. The amount paid or payable by an Indemnified
Party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in this ARTICLE 2 shall be deemed to include any
legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
(b) Notwithstanding anything to the contrary contained herein, the
obligation of each Holder to contribute pursuant to this SECTION 2.08 is several
and not joint and no selling 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 selling Holder were offered to the public exceeds the amount
of any damages which such selling Holder has otherwise been required to pay by
reason of such untrue statement (or alleged untrue statement) or omission (or
alleged omission).
(c) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
Section 2.09 Transfer of Registration Rights. The registration rights
of the Investor under this ARTICLE 2 may be assigned and transferred (i) by each
Holder to any Affiliate of the Holder to whom any of the Notes or Conversion
Shares owned by the Holder are transferred, and (ii) by the Holder to any
transferee who acquires a majority of the Registrable Securities (adjusted to
reflect subsequent stock splits, combinations, stock dividends and
recapitalizations) initially issued to such Holder; provided, however, that
▇▇▇▇.▇▇▇ is given written notice by the Holder at the time of such assignment
and transfer stating the name and address of the transferee and identifying the
securities with respect to which the rights under this ARTICLE 2 are being
assigned and transferred. For the purposes of this SECTION 2.09, a change in
control of an Affiliate of the Holder holding shares entitling such Affiliate to
the registration rights hereunder, such that such Affiliate is subsequent to
such change of control no longer an Affiliate of the Holder, shall be deemed an
attempted transfer of the registration rights hereunder and such former
Affiliate of the Holder shall not be entitled to such registration rights except
to the extent such transfer would be permitted under CLAUSE (II) above.
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ARTICLE III
MISCELLANEOUS
Section 3.01 Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties hereto
(including permitted transferees of any shares of Registrable Securities).
Nothing in this Agreement is intended to confer upon any party other than the
parties hereto or their respective successors and assigns any rights, remedies,
obligations or liability under or by reason of this Agreement, except as
expressly provided in this Agreement.
Section 3.02 Notices.
All notices and other communications required or permitted
hereunder shall be in writing, shall be effective when given, and shall in any
event be deemed to be given upon receipt or, if earlier, (a) five (5) days after
deposit with the U.S. Postal Service or other applicable postal service, if
delivered by first class mail, postage prepaid, (b) upon delivery, if delivered
by hand or transmitted via facsimile (confirmed by letter sent by first class
mail, postage prepaid with the U.S. Postal Service or other applicable postal
service), or (c) one business day after the business day of deposit with Federal
Express or similar reputable, international overnight courier, freight prepaid.
Such notices, demands and other communications shall be sent to ▇▇▇▇.▇▇▇ at the
address set forth below and to any Holder of Registrable Securities at such
address set forth on Schedule A to the Note Exchange Agreement or at such
address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party. The address for ▇▇▇▇.▇▇▇
is:
▇▇▇▇.▇▇▇, Inc.
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Executive Officer
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy at the same address to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
or at such other address as a party may designate by ten (10) days advance
written notice to the other party pursuant to the provisions above.
Section 3.03 Governing Law; Forum and Consent to Jurisdiction.
(a) Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the law of the State of New
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York excluding choice-of-law principles of the law of such State that would
require the application of the laws of a jurisdiction other than such State.
(b) Submission to Jurisdiction; Service of Process. (i)
▇▇▇▇.▇▇▇ and the Holders agree that any action or proceeding brought by the
Holders in connection with this Agreement may be brought (and any action or
proceeding brought by ▇▇▇▇.▇▇▇ against the Holders in connection herewith shall
exclusively be brought) in the courts of the State of New York sitting in the
Borough of Manhattan or of the United States of America for the Southern
District of New York and, by execution and delivery of this Agreement, ▇▇▇▇.▇▇▇
and the Holders hereby irrevocably waive any objection, including, without
limitation, any objection to the laying of venue or based on the grounds of
forum non conveniens, which it may now or hereafter have to the bringing of any
such action or proceeding by ▇▇▇▇.▇▇▇ or the Holders in such non-exclusive
jurisdictions.
(ii) ▇▇▇▇.▇▇▇ hereby irrevocably appoint CT Corporation System
(the "Process Agent"), with an office on the date hereof at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, as their agent to receive on their
behalf service of copies of the summons and complaint and any other process that
may be served in any such action or proceeding. ▇▇▇▇.▇▇▇ irrevocably consents to
the service of process of any of the aforesaid courts in any such action or
proceeding by the mailing of copies thereof by registered mail, postage prepaid,
to it at its address set forth in this Agreement or to the Process Agent at its
address specified above.
Section 3.04 Waivers; Amendments. The waiver by the undersigned of any
of the provisions of this Agreement shall not operate or be construed as a
waiver of any subsequent breach. This Agreement may be amended, and any
provision of this Agreement may be waived, only by a written amendment executed
by (i) in the case of any amendment affecting the rights or obligations of
▇▇▇▇.▇▇▇, ▇▇▇▇.▇▇▇ and (ii) in the case of any amendment affecting the rights or
obligations of the Holder, Holders of a majority of the Registrable Securities
then outstanding (including Conversion Shares issuable upon conversion of then
outstanding Notes and Interest Payment Shares issuable in payment of interest on
the Notes).
Section 3.05 Headings. The section headings contained in this Agreement
are for reference purposes only and shall not affect the construction and
interpretation of this Agreement.
Section 3.06 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 is 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 this Agreement.
Section 3.07 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument. This Agreement may contain more
than one counterpart of the signature page and may be executed by the affixing
of the signatures of each of the parties hereto to one of these counterpart
signature pages. All of the counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
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Section 3.08 Aggregation of Stock. All shares of Registrable Securities
held or acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement.
Section 3.09 Construction. The parties hereto have participated jointly
in the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party hereto by virtue of the
authorship of any of the provisions of this Agreement.
Section 3.10 Entire Agreement. This Agreement contains the entire
agreement of the parties hereto. The parties hereto are not bound by any oral
statements that are made outside of this Agreement.
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WHEREAS, the parties hereto have executed this Agreement as of the date
first above written.
▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Executive Officer
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>
INVESTORS:
DEUTSCHE BANK AG, LONDON
BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
THE COMMON FUND
F/A/O ABSOLUTE RETURN FUND
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing General Partner
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HELIX CONVERTIBLE OPPORTUNITIES
FUND, LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing General Partner
HELIX CONVERIFBLE OPPORTUNITIES
FUND, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing General Partner
BNP PARIBAS EQUITY STRATEGIES,
S.N.C.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Financial Officer
BNP ▇▇▇▇▇▇ ▇▇▇▇ CONVERTIBLE
STRATEGIES FUND, L.P.
By: /s/ ▇▇▇ ▇'▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇'▇▇▇▇▇▇▇▇▇▇▇
Title: Director
J. N. INDUSTRIES INC.
By: /s/ A. ▇▇▇ ▇▇▇▇▇ ▇▇.
-------------------------------
Name: A. ▇▇▇ ▇▇▇▇▇ ▇▇.
Title: President
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MERCED PARTNERS LIMITED PARTNERSHIP
By: Global Capital Management,
Inc., General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Executive Officer
18