EXHIBIT B
[FORM OF REGISTRATION RIGHTS AND SHAREHOLDERS AGREEMENT]
REGISTRATION RIGHTS AND SHAREHOLDERS AGREEMENT
This
REGISTRATION RIGHTS AND SHAREHOLDERS AGREEMENT, dated as of
_________
(this "Agreement"), is made among Scottish Re Group Limited, an
exempted company
limited by shares organized and existing under the laws of the
Cayman Islands
(the "Company"), MassMutual Capital Partners LLC, a Delaware
limited liability
company ("MassMutual"), SRGL Acquisition, LLC ("Cerberus"; and
together with
MassMutual, the "Investors") and the shareholders of the Company
listed on
Schedule 1 hereto (collectively, the "Cypress Shareholders"), each
of which
Cypress Shareholders own on the date hereof, beneficially and as of
record, the
number of Ordinary Shares set forth opposite such Cypress
Shareholder's name on
Schedule 1 hereto.
RECITALS:
A.
The Company has agreed to issue and sell, and the Investors have
agreed
to purchase, pursuant to the Securities Purchase Agreement, dated
as of November
26, 2006 (the "Securities Purchase Agreement"), by and among the
Company and the
Investors, an aggregate of 1,000,000 shares of 7.25% convertible
cumulative
participating preferred shares, par value $0.01 per share, of the
Company (the
"Convertible Shares").
B.
In satisfaction of certain conditions to the obligations of the
parties
to the Securities Purchase Agreement, the parties are entering into
this
agreement.
C.
Capitalized terms used in this Agreement and not otherwise defined
are
used as defined in Section 15.
Now,
therefore, the parties hereto agree as follows:
1.
Demand Registrations.
(a)
Requests for Registration. At any time following the date hereof,
the
Required Investor Holders, or at any time following the earlier of
(i) two years
from the date hereof, or (ii) the date of the completion of the
audit of the
Company's financial statements for the fiscal year ended December
31, 2007, the
Required Cypress Holders, may request in writing that the Company
effect the
registration (a "Demand Registration") of all or any part of the
Registrable
Securities held by such Required Investor Holders or Required
Cypress Holders,
as the case may be, specifying the intended method of disposition
thereof (a
"Registration Request") by filing with the Commission a Demand
Registration
Statement. Promptly after its receipt of any Registration Request,
but no later
than 10 days after receipt of such Registration Request, the
Company will give
written notice of such request to all other Holders, and will use
its reasonable
best efforts to register, as expeditiously as practicable following
a
Registration Request in accordance with the provisions of this
Agreement, all
Registrable Securities
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(subject to any reduction pursuant to Section 1(f)) that have been
requested to
be registered by the Initiating Holders in the Registration Request
or by any
other Holders by written notice to the Company given within 30 days
after the
date the Company has given such Holders notice of the Registration
Request to
the extent necessary to permit the disposition of such Registrable
Securities so
to be registered in accordance with the intended methods of
disposition thereof
specified in such Registration Request or further requests
(including, without
limitation, only with respect to a Registration request of the
Required Investor
Holders, by means of a shelf registration pursuant to Rule 415
under the
Securities Act (a "Shelf Registration") if so requested and if the
Company is
then eligible to use such a registration). The Company shall use
its reasonable
best efforts to have such Demand Registration Statement declared
effective by
the Commission as soon as practicable after the filing thereof and
to keep such
Demand Registration Statement continuously effective for the period
specified in
Section 3. Notwithstanding anything in this Section 1(a) to the
contrary, the
Company will not be required to effect a registration pursuant to
this Section
1(a) unless the aggregate gross proceeds resulting from such Demand
Registration
could reasonably be expected to equal or exceed (x) $50,000,000, in
the case of
a Demand Registration initiated by the Required Investor Holders,
or (y) the
lesser of (1) $25,000,000 or (2) all of the Registrable Securities
then held by
the Cypress Shareholders in the aggregate, in the case of the
Required Cypress
Holders. The Company will pay all Registration Expenses incurred in
connection
with any registration pursuant to this Section 1.
(b)
Limitation on Demand Registrations. Other than as provided in
Section
1(c), the Company will not be obligated to effect or pay the
Registration
Expenses of more than three registrations requested by the Required
Investor
Holders or one registration requested by the Required Cypress
Holders, pursuant
to this Section 1, provided, however that such number shall be
increased to the
extent the Company does not include in what would otherwise be the
final
registration for which the Company is required to pay Registration
Expenses the
number of Registrable Securities requested to be registered by the
Holders by
reason of Section 1(f); provided, further, that a request for
registration will
not count for the purposes of this limitation if (i) the Majority
Holders of the
Registration determine in good faith to withdraw (provided that, if
such
registration is a Demand Registration requested by the Required
Cypress Holders,
for the purposes of this provision the "Majority Holders of the
Registration"
shall mean the Required Cypress Holders) (x) such Registration
Request prior to
the filing of a Demand Registration Statement or (y) such Demand
Registration
Statement (prior to the effective date of the Demand Registration
Statement
relating to such request) due to (1) marketing or regulatory
reasons, (2)
because of a material adverse change in the business, financial
condition or
prospects of the Company or (3) due to the exercise by the Company
of its rights
under Section 1(d) hereof, (ii) the Registration Statement relating
to such
request is not declared effective within 180 days of the date such
registration
statement is first filed with the Commission (other than solely by
reason of
Holders refusing to proceed) and the Majority Holders of the
Registration
withdraw such Registration Request prior to the
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effective date of the Demand Registration Statement relating to
such request
(provided that, if such registration is a Demand Registration
requested by the
Required Cypress Holders, for the purposes of this provision the
"Majority
Holders of the Registration" shall mean the Required Cypress
Holders), (iii)
prior to the sale of at least 90% of the Registrable Securities
included in the
registration relating to such request, such registration is
adversely affected
by any stop order, injunction or other order or requirement of the
Commission or
other governmental agency or court for any reason and the Company
fails to have
such stop order, injunction or other order or requirement removed,
withdrawn or
resolved to the reasonable satisfaction of the Majority Holders of
the
Registration within 30 days of the date of such order, (iv) more
than 10% of the
Registrable Securities requested by the Required Investor Holders
or the
Required Cypress Holders, as the case may be, to be included in the
registration
are not so included pursuant to Section 1(f), or (v) the conditions
to closing
specified in the underwriting agreement or purchase agreement
entered into in
connection with the registration relating to such request are not
satisfied
(other than as a result of a material default or breach thereunder
by the
Required Investor Holders or the Required Cypress Holders, as the
case may be).
Notwithstanding the foregoing, the Company will pay all
Registration Expenses in
connection with any request for registration pursuant to Section
1(a) regardless
of whether or not such request counts toward the limitation set
forth above
until such limit is reached.
(c)
Short-Form Registrations.
(i) S-3 Registration. If at any time (i) one or more Holders of
Registrable Securities (including to register the Registrable
Securities
registered pursuant to the Cypress Shareholders' one Demand
Registration)
request that the Company file a registration statement on Form S-3
or any
successor form thereto for a public offering of all or any portion
of the
shares of Registrable Securities held by such Holder or Holders,
the
reasonably anticipated aggregate price to the public of which would
exceed
$25,000,000, and (ii) the Company is a registrant entitled to use
Form S-3
or
any successor form thereto to register such securities, then the
Company
shall, as expeditiously as practicable following such request, use
its
reasonable best efforts to register under the Securities Act on
Form S-3 or
any
successor form thereto, for public sale in accordance with the
intended
methods of disposition specified in such request or any related
subsequent
requests (including, without limitation, by means of a Shelf
Registration)
the
Registrable Securities specified in such Request and any
related
subsequent requests; provided, that if such registration is for
an
Underwritten Offering, the terms of Sections 1(e) and 1(f)
shall
apply (and any reference to "Demand Registration" therein shall,
for
purposes of this Section 1(c), instead be deemed a reference to
"S-3
Registration"). Whenever the Company is required by this Section
1(c) to
use
its reasonable best efforts to effect the registration of
Registrable
Securities, each of the procedures and requirements of Section
1(a)
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and
1(g) (including but not limited to the requirements that the
Company
(A)
notify all Holders of Registrable Securities from whom such request
-
for
registration has not been received and provide them with the
opportunity to participate in the offering and (B) use its
reasonable best
efforts to have such S-3 Registration Statement declared and -
remain
effective for the time period specified herein) shall apply to
such
registration (and any reference in such Sections 1(e) and 1(f) to
"Demand
Registration" shall, for purposes of this Section 1(c)(i), instead
be
deemed a reference to "S-3 Registration"). Notwithstanding anything
to the
contrary contained herein, no request may be made under this
Section 1(c)
within 90 days after the effective date of a Registration Statement
filed
by
the Company covering a firm commitment Underwritten Offering in
which
the
Holders of Registrable Securities shall have been entitled to
join
pursuant to this Agreement in which there shall have been
effectively
registered all shares of Registrable Securities as to which
registration
shall have been requested (subject to any reduction pursuant to
Section
1(f)). There is no limitation on the number of S-3 Registrations
that the
Company is obligated to effect. The Company will pay all
Registration
Expenses incurred in connection with any S-3 Registration.
(ii) Shelf Registration. If a request made pursuant to Section 1(a)
or
1(c)
(other than such a request by the Cypress Shareholders) is for a
Shelf
Registration, the Company shall use its reasonable best efforts to
keep the
Shelf Registration continuously effective through the date on which
all of
the
Registrable Securities covered by such Shelf Registration may be
sold
pursuant to Rule 144(k) under the Securities Act (or any
successor
provision having similar effect); provided, however, that prior to
the
termination of such Shelf Registration, the Company shall
first furnish to each Holder of Registrable Securities
participating in
such
Shelf Registration (i) an opinion, in form and substance
satisfactory
to
the - Majority Holders of the Registration, of counsel for the
Company
satisfactory to the Majority Holders of the Registration stating
that such
Registrable Securities are freely saleable pursuant to Rule 144(k)
under
the
Securities Act (or any successor provision having similar effect)
or
(ii)
a "No-Action Letter" -- from the staff of the SEC stating that the
SEC
would not recommend enforcement action if the Registrable
Securities
included in such Shelf Registration were sold in a public sale
other than
pursuant to an effective registration statement.
(d)
Restrictions on Demand Registrations. The Company may postpone for
a
reasonable period of time, not to exceed 90 days, the filing of a
Prospectus or
the effectiveness of a Registration Statement for a Demand
Registration or S-3
Registration if the Company furnishes to the Holders a certificate
signed by the
Chief Executive Officer of the Company, following consultation
with, and after
obtaining the good faith approval of, the board of directors (the
"Board") of
the Company, stating that the Company believes that such Demand
Registration or
S-3 Registration would have a material
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adverse effect on any proposal by the Company to engage in any
acquisition of
assets (other than in the ordinary course of business) or any
merger,
amalgamation, consolidation, tender offer, scheme of arrangement or
similar
transaction, or otherwise would require disclosure of a material
corporate
development that the Company is not otherwise required to disclose,
and which
disclosure would be detrimental to the Company and its shareholders
or would
have a material adverse effect on the business, assets, operations,
prospects or
financial condition of the Company. The Company may only delay a
Demand
Registration or an S-3 Registration pursuant to this Section 1(d)
by delivery of
a Blackout Notice (as defined below) within 30 days of delivery of
the request
for such Registration under Section 1(a) or (c), as applicable, and
may delay a
Demand Registration or an S-3 Registration and require the Holders
of
Registrable Securities to discontinue the disposition of their
securities
covered by a Shelf Registration only for a reasonable period of
time not to
exceed 90 days (or such earlier time as such transaction is
consummated or no
longer proposed) (the "Blackout Period"). There shall not be more
than two
Blackout Periods in any 12 month period and the aggregate length of
such
Blackout Periods shall not exceed 90 days in any 12 month period.
The Company
shall promptly notify the Holders in writing (a "Blackout Notice")
of any
decision to postpone a Demand Registration or an S-3 Registration
or to
discontinue sales of Registrable Securities covered by a Shelf
Registration
pursuant to this Section 1(d) and shall include a general statement
of the
reason for such postponement, an approximation of the anticipated
delay and an
undertaking by the Company promptly to notify the Holders as soon
as a Demand
Registration or an S-3 Registration may be effected or sales of
Registrable
Securities covered by a Shelf Registration may resume. If the
Company shall
postpone the filing of a Demand Registration Statement or an S-3
Registration
Statement, the Majority Holders of the Registration who were to
participate
therein shall have the right to withdraw the request for
registration (provided
that, if such registration is a Demand Registration requested by
the Required
Cypress Holders, for the purposes of this provision the "Majority
Holders of the
Registration" shall mean the Required Cypress Holders). Any such
withdrawal
shall be made by giving written notice to the Company within 30
days after
receipt of the Blackout Notice. Such withdrawn registration request
shall not be
treated as a request for a Demand Registration effected pursuant to
Section 1(a)
(and shall not be counted towards the number of Demand
Registrations effected),
and the Company shall pay all Registration Expenses in connection
therewith.
(e)
Selection of Underwriters. If the Initiating Holders holding a
majority
of the Registrable Securities for which registration was requested
intend to
distribute the Registrable Securities covered by their Registration
Request by
means of an Underwritten Offering, they will so advise the Company
as a part of
the Registration Request, and the Company will include such
information in the
notice sent by the Company to the other Holders with respect to
such
Registration Request and the offering of such Registrable
Securities pursuant to
such Demand Registration shall be in the form of a firm commitment
Underwritten
Offering. In such event, the Initiating Holders holding a majority
of the
Registrable Securities for which registration was requested
will
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have the right to select the Underwriters or other investment
banker(s) and
manager(s) to administer the offering, subject to the Company's
approval which
will not be unreasonably withheld, conditioned or delayed. If the
offering is an
Underwritten Offering, the Company will use reasonable best efforts
to ensure
that the right of any Person (including other Holders) to
participate in such
registration will be conditioned upon such Person's participation
in such
underwriting at the same price and on the same terms of
underwriting applicable
to the Initiating Holders and the inclusion of such Person's
Registrable
Securities in the Underwritten Offering (unless otherwise agreed by
the Majority
Holders of the Registration), and each such Person will (together
with the
Company and the other Holders distributing their securities through
such
Underwritten Offering) enter into an underwriting agreement in
customary form
with the Underwriter or Underwriters selected for such Underwritten
Offering. If
any Holder disapproves of the terms of the Underwritten Offering,
such Holder
may elect to withdraw therefrom by written notice to the Company,
the managing
Underwriter and the Majority Holders of the Registration.
(f)
Priority on Demand Registrations. The Company will not include in
any
underwritten registration pursuant to Sections 1(a) or (c) any
securities that
are not Registrable Securities without the prior written consent of
the
Initiating Holders holding a majority of the Registrable Securities
for which
registration was requested. Other than in connection with a Shelf
Registration,
if the managing Underwriter advises the Company that in its opinion
the number
of Registrable Securities (and, if permitted hereunder, other
securities
requested to be included in such offering) exceeds the number of
securities that
can be sold in such offering without materially adversely affecting
the
successful marketability of the offering (including a material
adverse effect on
the per share offering price), the Company will include in such
offering only
such number of securities that in the opinion of such Underwriters
can be sold
without materially adversely affecting the successful marketability
of the
offering, which securities will be so included in the following
order of
priority: (A) if such registration is requested by the Required
Investor
Holders, (i) first, Registrable Securities, pro rata among the
respective
Holders thereof on the basis of the aggregate number of Registrable
Securities
requested to be included in such registration by each of them, and
(ii) second,
any other securities of the Company that have been requested to be
so included;
and (B) if such registration is requested by the Required Cypress
Holders, (i)
first, Registrable Securities, pro rata among the respective
Holders thereof
that are Cypress Shareholders on the basis of the aggregate number
of
Registrable Securities requested to be included in such
registration by each of
them, (ii) second, Registrable Securities, pro rata among the
respective other
Holders thereof that on the basis of the aggregate number of
Registrable
Securities requested to be included in such registration by each of
them, and
(iii) third, any other securities of the Company that have been
requested to be
so included. Notwithstanding the foregoing, no employee of the
Company or any
subsidiary thereof will be entitled to participate, directly or
indirectly, in
any such registration to the extent that the managing Underwriter
determines in
good faith that the participation of such employee in such
registration
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would adversely affect the marketability or offering price of the
securities
being sold in such registration. In the event the Company shall
not, by virtue
of this Section 1(f), include in any Demand Registration all of the
Registrable
Securities of any Holder requesting to be included in such Demand
Registration,
such Holder may, upon written notice to the Company given within
five days of
the time such Holder first is notified of such matter, reduce the
amount of
Registrable Securities it desires to have included in such Demand
Registration,
whereupon only the Registrable Securities, if any, it desires to
have included
will be so included and the Holders not so reducing shall be
entitled to a
corresponding increase in the amount of Registrable Securities to
be included in
such Demand Registration.
(g)
Registration of Other Securities. Whenever the Company shall effect
a
Demand Registration, no securities other than the Registrable
Securities shall
be covered by such registration unless the Majority Holders of the
Registration
shall have consented in writing to the inclusion of such other
securities
(provided that, if such registration is a Demand Registration
requested by the
Required Cypress Holders, for the purposes of this provision the
"Majority
Holders of the Registration" shall mean the Required Cypress
Holders).
(h)
Registration Statement Form. Registrations under this Section 1
shall
be on such appropriate registration form of the Commission (i) as
shall be
selected by the Initiating Holders holding a majority of the
Registrable
Securities for which registration was requested in the Registration
Request, and
(ii) which shall be available for the sale of Registrable
Securities in
accordance with (A) the intended method or methods of disposition
specified in
the requests for registration and (B) applicable law. The Company
agrees to
consult with any selling Holder with respect to any information
which such
selling Holder, upon advice of counsel, has reasonably requested to
be included
in such Registration Statement.
(i)
Conversions; Exercises. Notwithstanding anything to the
contrary
herein, in order for any Registrable Securities that are issuable
upon the
exercise of conversion rights, options or warrants to be included
in any
registration pursuant to Section 1 or 2 hereof, the exercise of
such conversion
rights, options or warrants must be effected no later than
immediately prior to
the closing of any sales under the Registration Statement pursuant
to which such
Registrable Securities are to be sold.
(j)
Exclusive Rights. The registration rights granted pursuant to
the
provisions of this Section 1 shall be in addition to the
registration rights
granted pursuant to the other provisions of Section 2 hereof.
2.
Piggyback Registrations.
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(a)
Right to Piggyback. Whenever the Company proposes to register any
of
its securities (including in response to a demand of a shareholder
not party
hereto, but excluding a registration pursuant to Section 1,
relating solely to
employee benefit plans, or relating solely to the sale of debt or
convertible
debt instruments) and the registration form to be filed may be used
for the
registration or qualification for distribution of Registrable
Securities, the
Company will give prompt written notice to all Holders of its
intention to
effect such a registration and will include in such registration
all Registrable
Securities with respect to which the Company has received written
requests for
inclusion therein within fifteen (15) days after the date of the
Company's
notice (a "Piggyback Registration"). Any Holder that has made such
a written
request may withdraw its Registrable Securities from such Piggyback
Registration
by giving written notice to the Company and the managing
Underwriter, if any, on
or before the thirtieth (30th) day prior to the planned effective
date of such
Piggyback Registration. The Company may delay, terminate or
withdraw any
registration under this Section 2 prior to the effectiveness of
such
registration, whether or not any Holder has elected to include
Registrable
Securities in such registration, and except for the obligation to
pay
Registration Expenses pursuant to Section 2(c) the Company will
have no
liability to any Holder in connection with such delay, termination
or
withdrawal; provided, however, that if such delay shall extend
beyond 120 days
from the date the Company received a request to include Registrable
Securities
in such Piggyback Registration, then the Company shall again give
all Holders
the opportunity to participate therein and shall follow the
notification
procedures set forth in this Section 2(a). There is no limitation
on the number
of such Piggyback Registrations pursuant to this Section 2 which
the Company is
obligated to effect. The registration rights granted pursuant to
the provisions
of this Section 2 shall be in addition to the registration rights
granted
pursuant to the other provisions of Section 1 hereof.
(b)
Underwritten Registration. If any Piggyback Registration involves
an
Underwritten Offering, the Company will so advise the Holders as a
part of the
written notice given pursuant to Section 2(a). In such event, the
Company will
use reasonable best efforts to ensure that the right of any Holder
to
registration pursuant to this Section 2 will be conditioned upon
such Holder's
participation in such Underwritten Offering and the inclusion of
such Holder's
Registrable Securities in the Underwritten Offering, and each such
Holder will
(together with the Company and the other Holders distributing their
securities
through such Underwritten Offering) enter into an underwriting
agreement in
customary form with the Underwriter or Underwriters selected for
such
Underwritten Offering by the Company. If any Holder disapproves of
the terms of
the Underwritten Offering, such Holder may elect to withdraw
therefrom by
written notice to the Company, the managing Underwriter and the
Holders
participating in the Underwritten Offering.
(c)
Piggyback Registration Expenses. The Company will pay all
Registration
Expenses in connection with any Piggyback Registration, whether or
not any
registration or Prospectus becomes effective or final.
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(d)
Priority on Primary Registrations. If a Piggyback Registration
relates
to an underwritten primary offering on behalf of the Company, and
the managing
Underwriters advise the Company (a copy of such notice if in
writing or prompt
communication of the content of such notice, if oral, to be
provided by the
Company to each Holder requesting registration) that in their
opinion the number
of securities requested to be included in such registration exceeds
the number
which can be sold without materially adversely affecting the
successful
marketability of such offering, the Company will include in such
registration or
Prospectus only such number of securities that in the opinion of
such
Underwriters can be sold without materially adversely affecting the
successful
marketability of the offering, which securities will be so included
in the
following order of priority: (i) first, the securities the Company
proposes to
sell, (ii) second, the Registrable Securities requested to be
included in such
registration, pro rata among the Holders of such Registrable
Securities on the
basis of the number of Registrable Securities so requested to be
included
therein owned by each such Holder, and (iii) third, other
securities requested
to be included in such registration; provided, however, that in the
event the
Company will not, by virtue of this Section 2(d), include in any
such
registration all of the Registrable Securities of any Holder
requested to be
included in such registration, such Holder may, upon written notice
to the
Company given within three days of the time such Holder first is
notified of
such matter, reduce the amount of Registrable Securities it desires
to have
included in such registration, whereupon only the Registrable
Securities, if
any, it desires to have included will be so included and the
Holders not so
reducing shall be entitled to a corresponding increase in the
amount of
Registrable Securities to be included in such registration.
Notwithstanding the
foregoing, any employee of the Company or any subsidiary thereof
will not be
entitled to participate, directly or indirectly, in any such
registration to the
extent that the managing Underwriter determines in good faith that
the
participation of such employee in such registration would adversely
affect the
marketability or offering price of the securities being sold in
such
registration.
(e)
Priority on Secondary Registrations. If a Piggyback
Registration
relates to an underwritten secondary registration on behalf of
holders of the
Company's securities other than the Holders of Registrable
Securities, and the
managing Underwriters advise the Company (a copy of such notice if
in writing or
prompt communication of the content of such notice, if oral, to be
provided by
the Company to each Holder requesting registration) that in their
opinion the
number of securities requested to be included in such registration
exceeds the
number which can be sold without materially adversely affecting the
successful
marketability of the offering, the Company will include in such
registration
only such number of securities that in the opinion of such
Underwriters can be
sold without materially adversely affecting the successful
marketability of the
offering, which securities will be so included in the following
order of
priority: (i) first, the securities requested to be included
therein by the
holders requesting such registration and the Registrable Securities
requested to
be included in such registration, pro rata among the holders of
such securities
and Registrable Securities on the basis of the
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number of securities so requested to be included therein owned by
each such
holder, and (ii) second, other securities requested to be included
in such
registration; provided, however, that in the event the Company will
not, by
virtue of this Section 2(e), include in any such registration all
of the
Registrable Securities of any Holder requested to be included in
such
registration, such Holder may, upon written notice to the Company
given within
three days of the time such Holder first is notified of such
matter, reduce the
amount of Registrable Securities it desires to have included in
such
registration, whereupon only the Registrable Securities, if any, it
desires to
have included will be so included and the Holders not so reducing
shall be
entitled to a corresponding increase in the amount of Registrable
Securities to
be included in such registration. Notwithstanding the foregoing,
any employee of
the Company or any subsidiary thereof will not be entitled to
participate,
directly or indirectly, in any such registration to the extent that
the managing
Underwriter determines in good faith that the participation of such
employee in
such registration would adversely affect the marketability or
offering price of
the securities being sold in such registration.
(f)
Other Registrations. If the Company receives a Registration Request
or
files a Registration Statement with respect to Registrable
Securities pursuant
to Section 1 or Section 2, and if such registration has not been
withdrawn or
abandoned, the Company will not file or cause to be effected any
other
registration of any of its equity securities or securities
convertible or
exchangeable into or exercisable for its equity securities under
the Securities
Act (except on Form S-4 or S-8 or any successor or similar forms),
whether on
its own behalf or at the request of any holder or holders of such
securities,
from a period beginning on the date of a Registration Request and
ending at
least 180 days from the effective date of the effectiveness of such
Registration
Statement, and shall not be required to do so notwithstanding any
other
provision of this Agreement.
3.
Registration Procedures. Subject to Section 1(d), whenever the
Holders
of Registrable Securities have requested that any Registrable
Securities be
registered pursuant to this Agreement, the Company will use its
reasonable best
efforts to effect the registration and sale of such Registrable
Securities in
accordance with the intended method of disposition thereof. Without
limiting the
generality of the foregoing, the Company will, as expeditiously as
practicable:
(a) prepare and (within 60 days after the end of the thirty-day
period
within which requests for registration may be given to the Company
pursuant
hereto) file with the Commission a Registration Statement with
respect to
such
Registrable Securities which Registration Statement shall comply as
to
form
in all material respects with the requirements of the applicable
form
and
include all financial statements required by the Commission to be
filed
therewith, make all required filings with the National Association
of
Securities Dealers, Inc. and thereafter use its reasonable best
efforts to
cause such Registration Statement to become effective, provided
that before
filing a Registration Statement or any
<PAGE>
amendments or supplements thereto, the Company will furnish to the
Holders'
Counsel copies of all such documents proposed to be filed, which
documents
will
be subject to review of such counsel at the Company's expense and
the
Company shall provide the Holders' Counsel and any attorney,
accountant or
other agent retained by any such seller or any Underwriter (each,
an
"Inspector" and, collectively, the "Inspectors") with a
reasonable
opportunity, in light of the circumstances, to participate in
the
preparation of such Registration Statement and each Prospectus
included
therein (and each amendment or supplement thereto or comparable
statement)
to
be filed with the Commission. Unless such Holders' Counsel has
reasonably objected in writing to the filing of such
Registration
Statement, amendment or supplement prior thereto, the Company will
file
such
Registration Statement, Prospectus, amendment or supplement or
comparable statement as required by this Agreement. The Company
will not
file
any Registration Statement or amendment or post-effective amendment
or
supplement to such Registration Statement to which such Holders'
Counsel
has
reasonably objected in writing on the grounds that (and explaining
why)
such
amendment or supplement does not comply in all material respects
with
the
requirements of the Securities Act or of the rules or
regulations
thereunder;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the Prospectus used
in
connection therewith as may be necessary to keep such
Registration
Statement effective and to comply with the provisions of the
Securities Act
with
respect to the disposition of all securities covered by such
Registration Statement until such time as all of such securities
have been
disposed of in accordance with the intended methods of disposition
by the
seller or sellers thereof set forth in such Registration
Statement;
provided, that except with respect to any Shelf Registration, such
period
need
not extend beyond nine months after the effective date of the
Registration Statement; and provided further, that with respect to
any
Shelf Registration, such period need not extend beyond the time
period
provided in Section 1(c), and which periods, in any event, shall
terminate
when
all Registrable Securities covered by such Registration Statement
have
been
sold (but not before the expiration of the 90 day period referred
to
in
Section 4(3) of the Securities Act and Rule 174 thereunder, if
applicable);
(c) furnish to each seller of Registrable Securities and each
Underwriter, if any, such number of copies, without charge, of
such
Registration Statement, each amendment and supplement thereto,
including
each
preliminary Prospectus, final Prospectus, all exhibits and
other
documents filed therewith and such other documents as such seller
may
reasonably request including in order to facilitate the disposition
of the
Registrable Securities owned by such seller;
11
<PAGE>
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws
of such
jurisdictions as any seller or the sole or lead managing
Underwriter, if
any,
reasonably requests, to continue such registration or qualification
in
effect in each such jurisdiction for as long as such Registration
Statement
remains in effect (including through new filings or amendments or
renewals)
and
do any and all other acts and things that may be necessary or
reasonably advisable to enable such seller to consummate the
disposition in
such
jurisdictions of the Registrable Securities owned by such
seller
(provided that the Company will not be required to (i) - qualify
generally
to
do business in any jurisdiction where it would not otherwise be
required
to
qualify but for this subsection, (ii) subject itself to taxation in
any
such
jurisdiction or (iii) consent to -- --- general service of process
in
any
such jurisdiction);
(e) use its reasonable best efforts to cause all Registrable
Securities covered by such Registration Statement to be registered
with or
approved by such other governmental agencies, authorities or
self-regulatory bodies as may be necessary or reasonably advisable
in light
of
the business and operations of the Company to enable the seller
or
sellers thereof to consummate the disposition of such
Registrable
Securities in accordance with the intended method or methods of
disposition
thereof;
(f) promptly notify the Holders' Counsel, the sole or lead
managing
Underwriter, if any, and each seller of such Registrable
Securities, at any
time
when a Registration Statement related thereto is required to be
amended or supplemented or a Prospectus relating thereto is
required to be
delivered under the Securities Act, upon discovery that, or upon
the
discovery of the happening of any event as a result of which,
the
Registration Statement or the Prospectus 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, as promptly as practicable, prepare and furnish to such
seller a
reasonable number of copies of a supplement or amendment to
such
Registration Statement or Prospectus so that, as thereafter
delivered to
the
purchasers of such Registrable Securities, such Registration
Statement
or
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;
(g) notify each seller of any Registrable Securities covered by
such
Registration Statement (i) when the Prospectus or any Prospectus
supplement
or
post-effective amendment has been filed and, with respect to
such
Registration Statement or any post-effective amendment, when the
same has
become effective, (ii) of any request by the Commission or any
state
securities or blue sky authority
12
<PAGE>
for
amendments or supplements to the Registration Statement or the
Prospectus related thereto or for additional information, (iii) of
the
issuance by the Commission of any stop order suspending the
effectiveness
of
such Registration Statement or the initiation or threat (of which
the
Company has knowledge) of any proceedings for any of such purposes
or (iv)
of
the receipt by the Company of any notification with respect to
the
suspension of the qualification of any Registrable Securities for
sale
under the securities or blue sky laws of any jurisdiction or the
initiation
of
any proceeding for such purpose;
(h) if so requested by the Majority Holders of the Registration,
use
its
reasonable best efforts to cause all such Registrable Securities to
be
listed on each securities exchange on which similar securities
issued by
the
Company are then listed or, if no similar securities issued by
the
Company are then listed on any securities exchange (or if the
listing of
Registrable Securities is not permitted under the rules of each
national
securities exchange on which the Company's securities are then
listed), use
its
reasonable best efforts to cause all such Registrable Securities to
be
listed on The New York Stock Exchange or Nasdaq Stock Market (as
determined
by
the Majority Holders of the Registration in consultation with
the
Company);
(i) provide a CUSIP number for all Registrable Securities and
provide
and
caused to be maintained a transfer agent and registrar for all
such
Registrable Securities not later than the effective date of, or
date of
final receipt, for such Registration Statement;
(j) enter into and perform such customary agreements (including
underwriting agreements with customary provisions) and provide
officers'
certificates and other customary closing documents and take all
such other
actions as the Majority Holders of the Registration or the
Underwriters, if
any,
reasonably request in order to expedite or facilitate the
disposition
of
such Registrable Securities (including, without limitation,
effecting a
share split or a combination of shares);
(k) make available for inspection by any seller of Registrable
Securities, Holders' Counsel, any Underwriter participating in
any
disposition pursuant to such Registration Statement and any
Inspector, all
financial and other records, pertinent corporate documents and
documents
relating to the business of the Company, and cause the Company's
officers,
directors, employees and independent accountants to supply all
information
reasonably requested by any such seller, Holders' Counsel,
Underwriter, or
Inspector in connection with such Registration Statement; provided
that
each
Holder will, and will use its commercially reasonable efforts to
cause
each
such Underwriter or Inspector to (i) enter into a
confidentiality
agreement in form and substance reasonably
13
<PAGE>
satisfactory to the Company and (ii) minimize the disruption to
the
Company's business in connection with the foregoing; provided,
further,
that
the Company shall not be required to make available for inspection
any
documents containing material non-public information or otherwise
provide
such
material non-public information to any person unless permitted
under
applicable securities laws without also making public disclosure
thereof;
(l) otherwise use its reasonable best efforts to comply with
all
applicable rules and regulations of the Commission and any
other
governmental agency or authority having jurisdiction over the
offering, and
make
available to its security holders, as soon as reasonably
practicable
but
no later than 90 days after the end of any 12-month period,
earnings
statements (i) commencing at the end of any month in - which
Registrable
Securities are sold to Underwriters in an Underwritten Offering and
(ii)
commencing -- with the first day of the Company's calendar month
next
succeeding each sale of Registrable Securities after the effective
date of
a
Registration Statement, which statements shall cover such
12-month
periods, in a manner which satisfies the provisions of Section
11(a) of the
Securities Act and Rule 158 thereunder;
(m) 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 ceasing trading of
any
securities included in such Registration Statement for sale in
any
jurisdiction, use its reasonable best efforts promptly to obtain
the
withdrawal of such order;
(n) cooperate with each selling Holder 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 NASD and make reasonably available
its
employees and personnel and otherwise provide reasonable assistance
to the
Underwriters (taking into account the needs of the Company's
businesses and
the
requirements of the marketing process) in the marketing of
Registrable
Securities in any Underwritten Offering, including, without
limitation,
preparing for and participating in such number of "road shows" and
all such
other customary selling efforts as the Underwriters reasonably
