EXHIBIT 2.2
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REGISTRATION RIGHTS AGREEMENT
among
TRANSPORT CORPORATION OF AMERICA, INC.,
and
THE SHAREHOLDERS NAMED HEREIN
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Dated: June 30, 1998
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TABLE OF CONTENTS
PAGE
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1. Definitions...............................................................1
2. General: Securities Subject to this Agreement.............................2
3. Demand Registration.......................................................3
(a) Request for Demand Registration..................................3
(b) Demand Registration Participation Rights.........................3
(c) Effective Demand Registration....................................4
(d) Expenses.........................................................4
(e) Underwriting.....................................................4
(f) Prior Registration Rights under the Conversion Agreement.........5
4. Incidental or "Piggy-Back" Registration...................................6
(a) Request for Incidental Registration..............................6
(b) Expenses.........................................................6
(c) Prior Registration Rights Under the Conversion Agreement.........7
5. Holdback Agreements.......................................................7
(a) Restrictions on Public Sale by Designated Holders................7
(b) Restrictions on Public Sale by the Company.......................7
6. Registration Procedures...................................................7
(a) Obligations of the Company.......................................7
(b) Obligations of the Designated Holders............................9
(c) Notice to Discontinue............................................9
7. Indemnification; Contribution............................................10
(a) Indemnification by the Company..................................10
(b) Indemnification by Designated Holders...........................10
(c) Conduct of Indemnification Proceedings..........................10
(d) Contribution....................................................11
(e) Limitations on Indemnification and Contribution.................12
8. Rule 144.................................................................12
9. Miscellaneous............................................................12
(a) Holder of Registrable Securities................................12
(b) Amendments and Waivers..........................................12
(c) Notices.........................................................12
(d) Successors and Assigns, Third Party Beneficiaries...............13
(e) Counterparts....................................................13
(f) Headings........................................................14
(g) Governing Law...................................................14
(h) Severability....................................................14
(i) Entire Agreement................................................14
Schedule 1: North Star Shareholders
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated June 30, 1998 (this "Agreement"),
by and among Transport Corporation of America, Inc, a Minnesota corporation (the
"Company"), and the shareholders listed on Schedule 1 hereto (individually, a
"Shareholder" and collectively, the "Shareholders").
This Agreement is made in connection with the Stock Purchase Agreement,
dated as of May 20, 1998, by and among the Company, North Star Transport, Inc.,
a Minnesota corporation ("North Star"), and the Shareholders (the "Purchase
Agreement"), pursuant to which the Company will acquire all of the outstanding
capital stock of North Star and the Shareholders will receive Common Stock of
the Company as a portion of the consideration for their North Star shares. In
order to induce North Star and the Shareholders to enter into the Purchase
Agreement, the Company has agreed to grant registration rights with respect to
the Registrable Securities (as hereinafter defined) as set forth in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premise, mutual
promises and agreements set forth herein and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. As used in this Agreement the following capitalized
terms have the meanings stated below, which shall be applicable equally to the
singular and plural forms of the terms so defined. Capitalized terms used and
not otherwise defined in this Agreement shall have the meanings provided in the
Purchase Agreement.
"Common Stock" means the Common Shares, par value $.01 per share, of
the Company or any other equity securities of the Company into which such
securities are converted, reclassified, reconstituted or exchanged.
"Company" has the meaning assigned to such term in the recital to this
Agreement.
"Conversion Agreement" means that certain Preferred Stock Conversion
Agreement by and among the Company and the investors named therein, dated March
24, 1992.
"Demand Registration" has the meaning set forth in Section 3(a) of this
Agreement.
"Designated Holder" means any Person or Persons to whom Registrable
Securities were originally issued or, subject to Section 9(d), Permitted
Transferees who hold Registrable Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Incidental Registration" has the meaning set forth in Section 4(a) of
this Agreement.
"Indemnified Party" has the meaning set forth in Section 7(c) of this
Agreement.
"Indemnifying Party" has the meaning set forth in Section 7(c) of this
Agreement.
"Initiating Holder" has the meaning set forth in Section 3(a) of this
Agreement.
"Permitted Transferee" has the meaning set forth in Section 9(d) of
this Agreement.
"Person" means any individual, firm, corporation, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, limited liability company, government (or an
agency or political subdivision thereof) or other entity of any kind, and shall
include any successor (by merger or otherwise) of such entity.
"Purchase Agreement" has the meaning assigned to such term in the
recital to this Agreement.
"Registrable Securities" means each of the following: (a) any and all
shares of Common Stock issued by the Company pursuant to the Purchase Agreement
and (b) any shares of Common Stock issued or issuable with respect to shares of
Common Stock referred to in clause (a) as a result of a stock dividend, stock
split, combination, recapitalization, merger, consolidation or other
reorganization or otherwise.
"Registration Statement" means a registration statement filed pursuant
to the Securities Act.
"SEC" means the Securities and Exchange Commission or any similar
agency then having jurisdiction to enforce the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
2. General: Securities Subject to this Agreement.
(a) The Company hereby grants registration rights to the
Shareholders upon the terms and conditions set forth in this Agreement.
(b) For the purposes of this Agreement, Registrable Securities
will cease to be Registrable Securities when (i) a Registration Statement
covering such Registrable Securities has been declared effective under the
Securities Act by the SEC and such Registrable Securities have been disposed of
pursuant to such effective Registration Statement, (ii) the entire amount of
Registrable Securities proposed to be sold by a Designated Holder in a single
sale, in the opinion
of counsel satisfactory to the Company and the Designated Holder, each in their
reasonable judgment, may be distributed to the public without any limitation as
to volume pursuant to Rule 144 (or any successor provision then in effect) under
the Securities Act, (iii) the Registrable Securities are proposed to be sold or
distributed by a Person not entitled to the registration rights granted by this
Agreement, or (iv) the Registrable Securities are, transferred, sold or
distributed to a Person that is not a Permitted Transferee.
3. Demand Registration.
(a) Request for Demand Registration. At any time after the
Closing Date until the fifth (5th) anniversary of the Closing Date, any holder
or holders of greater than twenty-five percent (25%) of the outstanding
Registrable Securities (the "Initiating Holder(s)") may make a written request
to the Company to register, under the Securities Act (other than pursuant to a
Registration Statement on Form S-4 or S-8 or any successor form thereto) and
under the securities or "blue sky" laws of any jurisdiction designated by such
holder or holders (a "Demand Registration"), the number of Registrable
Securities stated in such request; provided, however, that the Company shall not
be obligated to effect more than two (2) Demand Registrations pursuant to this
Section 3. If at the time of any request to register Registrable Securities
pursuant to this Section 3(a), the Company is engaged in, or has fixed plans to
engage in within ninety (90) days of the time of such request, a registered
public offering or is engaged in any other activity which, in the good faith
determination of the Board of Directors of the Company, would be adversely
affected by the requested registration to the serious detriment of the Company,
then the Company may at its option direct that such request be delayed for a
reasonable period not in excess of six (6) months from the effective date of
such offering or the date of completion of such other activity, as the case may
be, such right to delay a request to be exercised by the Company not more than
once in any one-year period. In addition, the Company shall not be required to
effect any registration within ninety (90) days after the effective date of any
other Registration Statement of the Company. Each request for a Demand
Registration by the Initiating Holder(s) shall state the amount of the
Registrable Securities proposed to be sold and the intended method of
disposition thereof. Upon a request for a Demand Registration, the Company shall
promptly take such steps as are necessary or appropriate to prepare for the
registration of the Registrable Securities to be registered.
(b) Demand Registration Participation Rights.
(i) Each of the Designated Holders may participate in any
Demand Registration pursuant to this Section 3. Within ten (10) days after the
date of the request for a Demand Registration from the Initiating Holder(s) to
the Company, the Company shall give written notice thereof to all of the
Designated Holders (other than the Initiating Holder(s)), with a copy of the
same sent to the Initiating Holder(s).
(ii) The Company shall include in the Demand Registration
all of the Registrable Securities held by those Designated Holders from whom the
Company has received a
written request for inclusion therein within twenty (20) days of the date of the
written notice referred to clause (i) above. Each such request by such
Designated Holders shall specify the number of Registrable Securities proposed
to be registered and the intended method of disposition thereof; and
(iii) The failure of any Designated Holder to respond
within such 20- day period referred to in clause (ii) above shall be deemed to
be a waiver of such Designated Holder's rights to participate in the offering
which is the subject of the notice under this Section 3, provided that any
Designated Holder may waive its rights under this Section 3 with respect to such
offering prior to the expiration of such 20-day period by giving written notice
to the Company, with a copy to the Initiating Holder(s).
(c) Effective Demand Registration. The Company shall use its
best efforts to cause any Demand Registration to become and remain effective as
soon as practicable, but in any event not later than 120 days after it receives
a request under Section 3(a) hereof. At the request of the Initiating Holder(s),
the Demand Registration shall be a "Shelf" Registration under Rule 415
promulgated pursuant to the Securities Act. A registration shall not constitute
a Demand Registration until it has become effective and remains continuously
effective for the lesser of (i) the period during which all Registrable
Securities registered in the Demand Registration are sold and (ii) 180 days.
Except as may be required by Section 6(c), the Company shall not be required to
maintain the effectiveness of a Registration Statement under this Section 3 for
more than 180 days.
(d) Expenses. All fees, costs and expenses incurred by the
Company in connection with any Demand Registration pursuant to this Section 3,
including without limitation, all registration, filing and qualification fees,
printing expenses, accounting fees, and fees and disbursements of counsel for
the Company shall be born by the holders of Registrable Securities participating
in the registration whether or not such registration becomes effective. If any
holder of registrable securities under the Conversion Agreement (the "Conversion
Agreement Holders") participates in the Demand Registration pursuant to Section
3(f) hereof, the Company's obligations with respect to the payment of expenses
to the Conversion Agreement Holders shall be governed by the Conversion
Agreement. In such case and with respect to expenses that inure to the benefit
of both the holders of Registrable Securities and the Conversion Agreement
Holders, such as printing, registration and accounting fees (the "Shared
Expenses"), the holders of Registrable Securities shall only be obligated to pay
their pro rata share of such expenses, calculated by multiplying the total
amount of the Shared Expenses by a fraction, the numerator of which equals the
aggregate number of Registrable Securities included in such registration and the
denominator of which is the aggregate number of all securities included in such
registration.
(e) Underwriting. If the Initiating Holders holding a majority
of the Registrable Securities held by all of the Initiating Holders to which the
requested Demand Registration relates so elect and notify the Company of such
election as part of their request
made pursuant to Section 3(a), the offering of such Registrable Securities
pursuant to such Demand Registration shall be in the form of a firm commitment
underwritten offering and the managing underwriter or underwriters selected for
such offering shall be selected by the Company and concurred in by the
Initiating Holder(s), whose concurrence shall not be unreasonably withheld,
delayed or conditioned.(the "Approved Underwriter"). In connection with any
Demand Registration under this Section 3 involving an underwriting, none of the
Registrable Securities held by any Designated Holder making a request for
inclusion of such Registrable Securities pursuant to Section 3(b) hereof shall
be included in such underwriting unless such Designated Holder accepts the terms
of the underwriting as agreed upon by the Company, the Initiating Holders and
the Approved Underwriter. The Company shall (together with all holders of
Registrable Securities proposing to distribute their securities through such
underwriting) enter into an underwriting agreement in customary form with the
Approved Underwriter, provided that such underwriting agreement shall not
provide for indemnification or contribution obligations of the Company toward
the holders of Registrable Securities greater than as set forth in Section 7(a).
Notwithstanding any other provision of this Section 3, if the Approved
Underwriter advises the Company that marketing factors require a limitation of
the number of shares to be underwritten or that the inclusion of all Registrable
Securities requested to be included in the Demand Registration would materially
adversely affect the offering, the Company shall so advise all holders of
Registrable Securities proposed to be sold in the offering, and the number of
shares of Registrable Securities that may be included in the Demand Registration
and underwriting shall be limited to the number advised by the Approved
Underwriters and shall be allocated among all holders of Registrable Securities
proposed to be included therein (and, if participating in the Demand
Registration, Conversion Agreement Holders) in proportion, as nearly as
practicable, to the respective amounts of such securities held by such holders.
In the event that such allocation causes the holders of Registrable Securities
desiring to participate in such distribution to be able to include less than 75%
of the Registrable Securities proposed to be included in such offering, such
offering will not be counted for purposes of the limitation on the number of
offerings under Section 3(a) above. If any Designated Holder disapproves of the
terms of the underwriting, such holder may elect to withdraw therefrom by
written notice to the Company, the Approved Underwriter and the Initiating
Holders but the offering shall be counted for purposes of the limitation of
offerings under Section 3(a). Any Registrable Securities which are excluded from
the underwriting by reason of the underwriter's marketing limitation or
withdrawn from such underwriting shall be withdrawn from such registration.
(f) Prior Registration Rights under the Conversion Agreement.
All holders of registrable securities under the Conversion Agreement shall have
the right to participate in any Demand Registration under this Section 3 on a
pro rata basis with all Designated Holders (including the Initiating Holders) in
accordance with the terms of the Conversion Agreement; provided, however, that
if the participation of the holders of registrable securities under the
Conversion Agreement causes the holders of Registrable Securities desiring to
participate in a Demand Registration under this Section 3 to be able to include
less than 75% of the Registrable
Securities proposed to be included in such offering, such offering will not be
counted for purposes of the limitation on the number of offerings under Section
3(a) above.
4. Incidental or "Piggy-Back" Registration.
(a) Request for Incidental Registration. At any time after the
Closing Date until the fifth (5th) anniversary of the Closing Date, if the
Company proposes to file a Registration Statement under the Securities Act with
respect to an offering by the Company for its own account (other than a
Registration Statement on Form S-4 or S-8 or any successor form thereto or any
other similarly inapplicable form), then the Company shall give written notice
of such proposed filing to each Designated Holder at least twenty (20) days
before the anticipated filing date, and such notice shall describe the proposed
registration and distribution and offer the Designated Holder the opportunity to
register the number of Registrable Securities as each such holder may request
(an "Incidental Registration"). The Company shall permit each Designated Holder
who has requested in writing twenty (20) days of the date of the notice provided
for in the preceding sentence to include its or his Registrable Securities in
such offering on the same terms and conditions as the securities of the Company
included therein. In connection with any Incidental Registration under this
Section 4(a) involving an underwriting, the Company shall not be required to
include any Registrable Securities in such underwriting unless the holders
thereof accept the terms of the underwriting as agreed upon between the Company
and the underwriter, and then only in such quantity as will not, in the opinion
of the underwriter, jeopardize the success of the offering by the Company. If in
the opinion of the underwriter marketing factors require a limitation of the
number of shares of Registrable Securities to be underwritten or the
registration of all or part of the Registrable Securities which the holders have
requested to be included would materially adversely affect such offering, then
the Company shall be required to include in such Incidental Registration, to the
extent of the amount that the underwriter believes may be sold without causing
such adverse effect, (i) first, all of the securities to be offered for the
account of the Company; and (ii) second, all of the Registrable Securities to be
offered pursuant to this Section 4 and any other securities of the Company
having incidental or "piggy-back" rights to participate in the registration
which rights have been exercised. In the event not all of the securities
described in (ii) above can, in the opinion of the underwriter, be included in
such registration, the number to be so included shall be limited to the number
of shares in proportion, as nearly as practicable, to the respective amounts of
securities held by such holders.
(b) Expenses. The Company shall bear all reasonable expenses
(other than underwriting discounts and commissions with respect to the
Registrable Securities) incurred in connection with any Incidental Registration
pursuant to this Section 4, including without limitation, all registration,
filing and qualification fees, printing expenses, accounting fees, and fees and
disbursements of counsel for the Company whether or not such Incidental
Registration becomes effective; provided, however, that each holder of
Registrable Securities participating in the Incidental Registration shall bear
the costs of its own legal counsel and any applicable qualification or "blue
sky" fees in states in which the Company is not selling its securities.
(c) Prior Registration Rights Under the Conversion Agreement.
The Incidental Registration rights under this Section 4 shall not apply to any
registration by the Company undertaken pursuant to Section 6.2 of the Conversion
Agreement.
5. Holdback Agreements.
(a) Restrictions on Public Sale by Designated Holders. Each of
the Designated Holders agrees not to effect any public sale or distribution of
any Registrable Securities being registered or of any securities convertible
into or exchangeable or exercisable for such Registrable Securities or of any
other securities of the Company held by the Designated Holder, including a sale
pursuant to Rule 144 under the Securities Act, during the 90-day period
beginning on the effective date of such Registration Statement (except as part
of such registration).
(b) Restrictions on Public Sale by the Company. The Company
agrees not to effect any public sale or distribution of any of its securities,
or any securities convertible into or exchangeable or exercisable for such
securities (except pursuant to such registration or registrations on Form S-4 or
S-8 or any successor form thereto), during the period beginning on the effective
date of any Registration Statement in which the Designated Holders are
participating and ending on the earlier of (i) the date on which all Registrable
Securities registered on such Registration Statement are sold and (ii) 90 days
after the effective date of such Registration Statement.
6. Registration Procedures.
(a) Obligations of the Company. Whenever registration of
Registrable Securities has been requested pursuant to Section 3 or Section 4 of
this Agreement, the Company shall use its best efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as soon as practicable, and in
connection with any such request, the Company shall:
(i) use its best efforts to prepare and file with the SEC
a Registration Statement on any form for which the Company then qualifies or
which counsel for the Company shall deem appropriate and which form shall be
available for the sale of such Registrable Securities in accordance with the
intended method of distribution thereof, and use its best efforts to cause such
Registration Statement to become effective;
(ii) 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 lesser of (x) 180 days and (y) such shorter period which will terminate when
all Registrable Securities covered by such Registration Statement have been
sold, and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement;
(iii) as soon as reasonably possible, furnish to each
seller of Registrable Securities, prior to filing a Registration Statement,
copies of such Registration Statement as is proposed to be filed, and thereafter
such number of copies of such Registration Statement, each amendment and
supplement thereto (in each case including all exhibits thereto), the prospectus
included in such Registration Statement (including each preliminary prospectus)
and such other documents as each such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such seller;
(iv) use its best efforts to register or qualify such
Registrable Securities under such other securities or "blue sky" laws of such
jurisdictions as any seller of Registrable Securities may reasonably request,
and to continue such qualification in effect in such jurisdiction for 180 days
or for as long as any such seller requests or until all of such Registrable
Securities are sold, whichever is shortest, and do any and all other acts and
things which may be reasonably necessary or advisable to enable any such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; provided, however, that the Company shall not
be required to (x) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section 6(a)(iv), (y)
subject itself to taxation in any such jurisdiction or (z) consent to general
service of process in any such jurisdiction;
(v) notify each seller of Registrable Securities of the
happening of any event of which the Company has knowledge, as a result of which
the prospectus included in the 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 light of the circumstances under which they were made, and the
Company shall use its best efforts to promptly prepare a supplement or amendment
to such prospectus and furnish to each seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that,
after delivery to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made;
(vi) notify each seller of Registrable Securities of any
stop order issued or threatened by the SEC and take all reasonable action
required to prevent or remove the entry of such stop order;
(vii) if such sale is pursuant to an underwritten
offering, use its best efforts to obtain a "cold comfort" letter from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by "cold comfort" letters as the
underwriter reasonably requests;
(viii) cause all such Registrable Securities to be listed
on each securities exchange on which similar securities issued by the Company
are then listed, provided that the applicable listing requirements are
satisfied; and
(ix) 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 National Association of Securities Dealers, Inc.
(b) Obligations of the Designated Holders.
(i) In connection with any registration in which a
Designated Holder is participating pursuant to Section 3 or Section 4 hereof,
each such Designated Holder shall furnish to the Company such information with
respect to such Designated Holder and the proposed method of distribution as the
Company may reasonably request or as may be required by law for use in
connection with the Registration Statement or prospectus;
(ii) Each Designated Holder participating in a Demand
Registration or an Incidental Registration shall notify the Company in writing
of the happening of any event of which the Designated Holder has knowledge, as a
result of which the prospectus included in the 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 light of the circumstances under which they were made;
and
(iii) Each Designated Holder participating in a Demand
Registration or an Incidental Registration shall cooperate with the Company and
each underwriter participating in the disposition of the Registrable Securities
and their respective counsel in connection with the registration.
(c) Notice to Discontinue. Each Designated Holder agrees that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 6(a)(v) or 6(a)(vi), such Designated Holder shall
forthwith discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such
Designated Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 6(a)(v), or until removal of the stop order,
and, if so directed by the Company, such Designated Holder shall deliver to the
Company all copies, other than permanent file copies then in such Designated
Holder's possession, of the prospectus covering such Registrable Securities
which is current at the time of receipt of such notice. If the Company shall
give any such notice, the Company shall extend the period during which such
Registration Statement shall be maintained effective pursuant to this Agreement
(including, without limitation, the period referred to in Section 6(a)(ii)) by
the number of days during the period from and including the date of the giving
of notice pursuant to this section to and including the date when the Designated
Holder shall have received the copies of the supplemented or amended
prospectus contemplated by and meeting the requirements of Section 6(a)(v) or
the date on which the stop order was lifted, as applicable; provided, however,
that the Company shall not be obligated to extend the period if the events
described in Sections 6(a)(v) or 6(a)(vi) resulted from or were caused by an act
or omission of a Designated Holder or the breach by a Designated Holder of any
provision of this Agreement.
7. Indemnification; Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the fullest extent permitted by law, each
Designated Holder, its officers, directors, trustees, partners, employees,
advisors and agents and each Person who controls (within the meaning of the
Securities Act or the Exchange Act) such Designated Holder from and against any
and all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue, or allegedly
untrue, statement of a material fact contained in any Registration Statement,
prospectus or preliminary prospectus or notification or offering circular (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or arising out of or based upon 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, except insofar as the
same are caused by or contained in any information concerning such Designated
Holder furnished to the Company by such Designated Holder for use therein.
(b) Indemnification by Designated Holders. Each Designated
Holder, severally and not jointly, agrees to indemnify and hold harmless, to the
fullest extent permitted by law, the Company, any underwriter retained by the
Company and their respective directors, officers, employees and each Person who
controls the Company or such underwriter (within the meaning of the Securities
Act and the Exchange Act) from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue, or allegedly untrue, statement of a material
fact contained in any Registration Statement, prospectus or preliminary
prospectus or notification or offering circular (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) or
arising out of or based upon 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 as the same are caused by or contained in any information
concerning such Designated Holder furnished to the Company by such Designated
Holder for use therein.
(c) Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder (the "Indemnified Party") agrees to give
prompt written notice to the indemnifying party (the "Indemnifying Party") after
the receipt by the Indemnified Party of any written notice of the commencement
of any action, suit, proceeding or investigation or threat thereof made in
writing for which the Indemnified Party intends to claim indemnification or
contribution pursuant to this Agreement. The failure of any Indemnified Party to
give notice as provided herein shall relieve the Indemnifying Party of its
obligations hereunder, but only to the
extent that such failure results in actual detriment to the Indemnifying Party.
If notice of commencement of any such action is given to the Indemnifying Party
as above provided, the Indemnifying Party shall be entitled to participate in
and, to the extent it may wish, jointly with any other Indemnifying Party
similarly notified, to assume the defense of such action at its own expense,
with counsel chosen by it and reasonably satisfactory to such Indemnified Party.
The Indemnified Party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel (other than reasonable costs of investigation) shall be paid by the
Indemnified Party unless (i) the Indemnifying Party agrees to pay the same, (ii)
the Indemnifying Party fails to assume the defense of such action with counsel
reasonably satisfactory to the Indemnified Party in its reasonable judgment or
(iii) the named parties to any such action (including any impleaded parties)
have been advised by such counsel that either (x) representation of such
Indemnified Party and the Indemnifying Party by the same counsel would be
inappropriate under applicable standards of professional conduct or (y) there
may be one or more legal defenses available to it which are different from or
additional to those available to the Indemnifying Party. In either of such
cases, the Indemnifying Party shall not have the right to assume the defense of
such action on behalf of such Indemnified Party. No Indemnifying Party shall be
liable for any settlement entered into without its written consent, which
consent shall not be unreasonably withheld, delayed or conditioned.
(d) Contribution. If the indemnification provided for in this
Section 7 from the Indemnifying Party is unavailable to an Indemnified Party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the 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, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party and Indemnified Party in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative faults of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Sections 7(a), 7(b) and 7(c), any legal
or other fees, charges or expenses reasonably incurred by such party in
connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(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.
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.
(e) Limitations on Indemnification and Contribution. The
aggregate liability of each Designated Holder under this Section 7 shall be
limited to an amount equal to the gross proceeds received by such Designated
Holder in connection with the sale of Registrable Securities giving rise to a
claim for indemnification or contribution hereunder.
8. Rule 144. The Company covenants that it shall file (a) any reports
required to be filed by it under the Exchange Act and (b) take such further
action as each Designated Holder of Registrable Securities may reasonably
request (including providing any information necessary to comply with Rules 144
and 144A under the Securities Act), all to the extent required from time to time
to enable such Designated Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such rule may be amended
from time to time, or (ii) any similar rules or regulations hereafter adopted by
the SEC.
9. Miscellaneous.
(a) Holder of Registrable Securities. A Person is deemed to be
a holder of Registrable Securities whenever such Person beneficially owns of
record such Registrable Securities and is either a Shareholder or a Permitted
Transferee. If the Company receives conflicting instructions, notices or
elections from two or more Persons with respect to the same Registrable
Securities, the Company may act upon the basis of the instructions, notice or
election received from the registered owner of such Registrable Securities who
is also either a Shareholder or a Permitted Transferee.
(b) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless consented to in writing by the Company and the holders
of greater than 60% of the Registrable Securities (after giving effect to any
adjustments). Any such written consent shall be binding upon the Company and all
of the Designated Holders.
(c) Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be made
by registered or certified first-class mail, return receipt requested, facsimile
transmission, courier overnight mail or personal delivery, to the parties at the
addresses or facsimile numbers set forth below:
(i) if to the Company:
Transport Corporation of America, Inc.
1769 Yankee Doodle Road
Eagan, MN 55121
Facsimile: (612) 686-2565
Attention: Robert J. Meyers
with a copy to:
Lindquist & Vennum P.L.L.P.
4200 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402
Facsimile: (612) 371-3207
Attention: John R. Houston, Esq.
(ii) if to any Designated Holder, at its address as it
appears on the record books of the Company with a
copy to:
Moss & Barnett, a Professional Association
4800 Norwest Center
90 South Seventh Street
Minneapolis, Minnesota 55402
Facsimile: (612)339-6686
Attention: Mitchell H. Cox, Esq.
All such notices and communications shall be deemed to have been duly
given when delivered by hand, if personally delivered; when delivered by courier
or overnight mail, if delivered by commercial courier service or overnight mail;
five (5) Business Days after being deposited in the mail, postage prepaid, if
mailed; and when receipt is mechanically acknowledged, if by facsimile
transmission.
(d) Successors and Assigns, Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company. The rights and obligations of the Designated Holders
contained in this Agreement shall be, with respect to any Registrable Security,
transferred by such Designated Holder only to a Person who is a Permitted
Transferee of such Designated Holder. No Person other than the parties hereto
and, with respect to the Company, its successors and assigns, and , with respect
to the Shareholders, their Permitted Transferees, is intended to be a
beneficiary of any of the rights granted hereunder. A "Permitted Transferee"
shall mean a Person to which any Registrable Security is transferred by a
Shareholder, provided, however, that such transferee is (i) one of the
Shareholders, (ii) the spouse or sibling or a member of the Shareholder's
immediate family, (iii) a trust established for the benefit of any person
identified in clauses (i) or (ii), (iv) the estate of any person or entity
described in clauses (i) or (ii), or (v) any entity controlled or under common
control with any one or more of the persons and/or entities described in clauses
(i), (ii), (iii) or (iv).
(e) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
(h) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired.
(i) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein and in the Purchase Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[SIGNATURE PAGE TO FOLLOW]
[SIGNATURE PAGE TO THE REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Agreement on the date first written above.
TRANSPORT CORPORATION OF AMERICA, INC.
By:
---------------------------------------
Name:
Title:
SHAREHOLDERS:
-------------------------------------------
Jon L. Miller
-------------------------------------------
William I. Hagen
-------------------------------------------
Michael D. Kandris
THE MITCHELL A. MILLER TRUST CREATED
UNDER AGREEMENT DATED AUGUST 24, 1994
By:
---------------------------------------
Jon L. Miller
Its Trustee
THE WILLIAM M. HAGEN TRUST CREATED UNDER
AGREEMENT DATED APRIL 15, 1998
By:
---------------------------------------
William I. Hagen
Its Trustee
THE WILLIAM M. HAGEN QSST TRUST CREATED
UNDER AGREEMENT DATED DECEMBER 30, 1994
By:
---------------------------------------
Wayne L. Czeh
Its Trustee
THE SUSAN L. MILLER QSST TRUST CREATED
UNDER AGREEMENT DATED DECEMBER 30, 1994.
By:
---------------------------------------
Vivian Y. Miller
Its Trustee
THE SALLY MILLER BROTEN QSST TRUST
CREATED UNDER AGREEMENT DATED
DECEMBER 30, 1994
By:
---------------------------------------
Vivian Y. Miller
Its Trustee
THE LISA D. BLEDSOE QSST TRUST CREATED
UNDER AGREEMENT DATED DECEMBER 30, 1994
By:
---------------------------------------
Vivian Y. Miller
Its Trustee
THE MICHAEL J. MILLER QSST TRUST CREATED
UNDER AGREEMENT DATED DECEMBER 30, 1994.
By:
---------------------------------------
Vivian Y. Miller
Its Trustee
THE MITCHELL A. MILLER QSST TRUST CREATED
UNDER AGREEMENT DATED DECEMBER 30, 1994
By:
---------------------------------------
Vivian Y. Miller
Its Trustee
THE LORI ANN HAGEN MINARD QSST TRUST
CREATED UNDER AGREEMENT DATED
DECEMBER 30, 1994
By:
---------------------------------------
Wayne L. Czeh
Its Trustee
SCHEDULE 1
Shareholders
Jon L. Miller
William I. Hagen
Michael D. Kandris
The Mitchell A. Miller Trust Created under Agreement Dated August 24, 1994
The William M. Hagen Trust Created under Agreement Dated April 15, 1998
The William M. Hagen QSST Trust Created under Agreement Dated December 30, 1994
The Susan L. Miller QSST Trust Created under Agreement Dated December 30, 1994
The Sally Miller Broten QSST Trust Created under Agreement Dated December 30,
1994
The Lisa D. Bledsoe QSST Trust Created under Agreement Dated December 30, 1994
The Michael J. Miller QSST Trust Created under Agreement Dated December 30, 1994
The Mitchell A. Miller QSST Trust Created under Agreement Dated December 30,
1994
The Lori Ann Hagen Minard QSST Trust Created under the Agreement Dated December
30, 1994