Exhibit 4.12
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement, dated as of July 31, 1995, is made
by and between MORRISON KNUDSEN CORPORATION, a Delaware corporation (the
"Company"), and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Maryland corporation
(the "Purchaser") and Purchaser as agent for the persons listed on certain
cosureties and other reinsurers.
W I T N E S S E T H:
WHEREAS, the Company and Morrison Knudsen Corporation, an Ohio
corporation, and the Purchaser are entering into that certain Indemnification
and Reimbursement Agreement of even date herewith and certain other agreements
in connection therewith (collectively, the "Surety Reimbursement Agreements")
and the Company and the Purchaser also are entering into a Securities Purchase
Agreement of even date herewith (the "Purchase Agreement"), pursuant to which
the Company agreed to issue and sell to the Purchaser, and the Purchaser agreed
to purchase from the Company, warrants to purchase common stock of the Company
in exchange for, among other things, certain accommodations being made by the
Purchaser under the Surety Reimbursement Agreements;
WHEREAS, in order to induce the Purchaser to enter into the Purchase
Agreement and to purchase warrants for common stock, the Company is agreeing to
provide registration rights with respect to shares of the Company's Common
Stock, par value One Dollar and Sixty-Six and Two-Thirds Cents ($1.66-2/3) per
share, held by the Purchaser (the "Common Stock").
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained, it is agreed as follows:
1. DEFINITIONS. Unless otherwise defined herein, terms defined in
the Warrant are used herein as therein defined, and the following shall have
(unless otherwise provided elsewhere in this Registration Rights Agreement) the
following respective meanings (such meanings being equally applicable to both
the singular and plural form of the terms defined):
"Agreement" shall mean this Registration Rights Agreement, including
all amendments, modifications and supplements and any exhibits or schedules to
any of the foregoing, and shall refer to the Agreement as the same may be in
effect at the time such reference becomes operative.
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency then administering the Securities Act and other federal
securities laws.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"NASD" shall mean the National Association of Securities Dealers,
Inc., or any successor corporation thereto.
"Registrable Securities" shall mean the Warrant Stock and the shares
of Common Stock purchasable upon exercise of the Warrants.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"Warrants" shall mean collectively the Warrants (as defined in the
Purchase Agreement).
2. Intentionally Omitted.
3. INCIDENTAL REGISTRATION. If the Company at any time proposes to
file on its behalf and/or on behalf of any of its security holders (the
"demanding security holders") a Registration Statement under the Securities Act
(a "Registration Statement") on any form (other than a Registration Statement on
Form S-4 or S-8 or any successor form for securities to be offered in a
transaction of the type referred to in Rule 145 under the Securities Act or to
employees of the Company pursuant to any employee benefit plan, respectively)
for the general registration of securities with respect to its Common Stock or
any other class of equity security (as defined in Section 3(a)(11) of the
Exchange Act) of the Company, it will give written notice to all holders of
Warrants or Warrant Stock at least 45 days before the initial filing with the
Commission of such Registration Statement, which notice shall set forth the
intended method of disposition of the securities proposed to be registered by
the Company. The notice shall offer to include in such filing the aggregate
number of shares of Warrant Stock, and the number of shares of Common Stock into
which such Warrants are exercisable, as such holders may request. Nothing
herein shall preclude the Company from discontinuing the registration of its
securities being effected on its behalf or on behalf of the demanding security
holders at any time prior to the effective date of the Registration Statement
relating thereto.
Each holder of any such Registrable Securities desiring to have
Warrant Stock registered under this SECTION 3 shall advise the Company in
writing within 30 days after the date of receipt of such offer from the Company,
setting forth the number of shares of such Warrant Stock and shares of Common
Stock
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into which such Warrants are exercisable for which registration is requested.
The Company shall thereupon include in such filing the number of shares of
Warrant Stock and shares of common stock into which such Warrants are
exercisable for which registration is so requested and shall use its best
efforts to effect registration under the Securities Act of such shares. Except
as otherwise provided in SECTION 5, all expenses of such registration shall be
borne by the Company.
4. REGISTRATION PROCEDURES. If the Company is required by the
provisions of SECTION 3 to use its best efforts to effect the registration of
any of its securities under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare and file with the Commission a Registration
Statement with respect to such securities and use its best efforts to cause such
Registration Statement to become and remain effective for a period of time
required for the disposition of such securities by the holders thereof;
(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 sale or
other disposition of all securities covered by such Registration Statement until
the earlier of such time as all of such securities have been disposed of in a
public offering or the expiration of 180 days;
(c) furnish to any selling security holders such number of
copies of a summary prospectus or other prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents, as such selling security holders may reasonably request;
(d) use its best efforts to register or qualify the securities
covered by such Registration Statement under such other securities or blue sky
laws of such jurisdictions within the United States and Puerto Rico as each
holder of such securities shall request (provided, however, the Company shall
not be obligated to qualify as a foreign corporation to do business under the
laws of any jurisdiction in which it is not then qualified or to file any
general consent to service of process), and do such other reasonable acts and
things as may be required of it to enable such holder to consummate the
disposition in such jurisdiction of the securities covered by such Registration
Statement;
(e) unless waived in writing by each holder of securities being
included in such registration, use its best efforts to obtain from a nationally
recognized underwriter or
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investment banker a firm commitment (pursuant to an underwriting agreement in
customary form) to underwrite the public offering of the securities covered by
such Registration Statement;
(f) furnish, at the request of any holder requesting
registration of Registrable Securities pursuant to SECTION 3, on the date that
such shares of Registrable Securities are delivered to the underwriters for sale
pursuant to such registration or, if such Registrable Securities are not being
sold through underwriters, on the date that the Registration Statement with
respect to such shares of Registrable Securities becomes effective, (1) a copy
of an opinion in form and substance satisfactory to such holder, dated such
date, of the independent counsel representing the Company for the purposes of
such registration, addressed to the underwriters, if any, and to the holders
making such request, substantially to the effect that such Registration
Statement has become effective under the Securities Act and that (i) to the best
knowledge of such counsel, no stop order suspending the effectiveness thereof
has been issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Securities Act, (ii) the Registration
Statement, the related prospectus, and each amendment or supplement thereto,
comply as to form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder (except that such counsel need express no opinion as to financial
statements and data contained therein), (iii) the descriptions in the
Registration Statement or the prospectus, or any amendment or supplement
thereto, of all legal matters and contracts and other legal documents or
instruments are accurate and fairly present the information required to be
shown, and (iv) such counsel does not know of any legal or governmental
proceedings, pending or contemplated, required to be described in the
Registration Statement or prospectus, or any amendment or supplement thereto,
which are not described as required, nor of any contracts or documents or
instruments of a character required to be described in the Registration
Statement or prospectus, or any amendment or supplement thereto, or to be filed
as exhibits to the Registration Statement which are not described and filed or
incorporated by reference as required; such counsel shall also confirm that it
has no reason to believe that either the Registration Statement or the
prospectus, or any amendment or supplement thereto (other than financial
statements and data as to which such counsel need make no statement) contains
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which made, not misleading; and (2) a letter dated
such date, from the independent certified public accountants of the Company,
addressed to the underwriters, if any, and to the holders making such request
(or if such accountants are unable to deliver such letter to such holders under
applicable professional rules or
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guidelines, then to the Company) stating that they are independent certified
public accountants within the meaning of the Securities Act and that, in the
opinion of such accountants, the financial statements and other financial data
of the Company included in the Registration Statement or the prospectus, or any
amendment or supplement thereto, comply as to form in all material respects with
the applicable accounting requirements of the Securities Act and, if permitted
under applicable professional rules or guidelines, that such opinion is rendered
for the benefit of the selling security holders and that they have a right to
rely thereon. Such opinion of counsel shall additionally cover such other legal
matters with respect to the registration in respect of which such opinion is
being given as such holders of Registrable Securities may reasonably request.
Such letter from the independent certified public accountants shall additionally
cover such other financial matters (including information as to the period
ending not more than five Business Days prior to the date of such letter) with
respect to the registration in respect of which such letter is being given as
the holders of such securities may reasonably request;
(g) enter into customary agreements (including an underwriting
agreement in customary form containing standard indemnification provisions) and
take such other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities; and otherwise use its
best efforts to comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon as reasonably
practicable, but not later than 18 months after the effective date of the
Registration Statement, an earnings statement covering the period of at least
12 months beginning with the first full month after the effective date of such
Registration Statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act.
5. EXPENSES; LIMITATIONS ON REGISTRATION. All expenses incurred in
complying with this Agreement, including, without limitation, all registration
and filing fees (including all expenses incident to filing with the NASD),
printing expenses, fees and disbursements of counsel for the Company, the
reasonable fees and expenses of counsel for the selling security holders
(selected by those holding a majority of the shares being registered), expenses
of any special audits incident to or required by any such registration and
expenses of complying with the securities or blue sky laws of any jurisdictions
pursuant to SECTION 4(D), shall be paid by the Company, except that
(a) all such expenses in connection with any amendment or
supplement to the Registration Statement or prospectus filed more than 180 days
after the effective date of such Registration Statement because any holder of
Registrable
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Securities has not effected the disposition of the securities requested to be
registered shall be paid by such holder; and
(b) the Company shall not be liable for any fees, discounts or
commissions to any underwriter or any fees or disbursements of counsel for any
underwriter in respect of the securities sold by such holder of Registrable
Securities.
It shall be a condition precedent to the obligation of the Company to
take any action pursuant to this Agreement in respect of the securities which
are to be registered at the request of any holder of Registrable Securities that
such holder shall furnish to the Company such information as may be deemed
necessary by the Company under the Securities Act with respect to such holder,
including information regarding the securities held by such holder and the
intended method of disposition thereof as the Company shall reasonably request
and as shall be required in connection with the action taken by the Company.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of any registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, the Company
shall indemnify and hold harmless the holder of such Registrable Securities,
such holder's directors and officers, and each other Person, if any, who
controls such holder within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which such holder
or any such director or officer or controlling Person may become subject under
the Securities Act or any other statute or at common law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any alleged untrue statement of any material fact
contained in any Registration Statement under which such securities were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, or (ii)
any alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and shall
reimburse such holder or such director, officer or controlling Person for any
legal or any other expenses reasonably incurred by such holder or such director,
officer or controlling Person in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any alleged untrue
statement or alleged omission made in such Registration Statement, preliminary
prospectus, prospectus or amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such holder
specifically for use therein. Such indemnity shall remain in full force and
effect regardless of any investigation
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made by or on behalf of such holder or such director, officer or controlling
Person, and shall survive the transfer of such securities by such holder.
(b) Each holder of Registrable Securities agrees to indemnify
and hold harmless the Company, its directors and officers and each other Person,
if any, who controls the Company within the meaning of the Securities Act
against any losses, claims, damages or liabilities, joint or several, to which
the Company or any such director or officer or any such Person may become
subject under the Securities Act or any other statute or at common law, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon written information provided to the Company by
such holder of such Warrant or Warrant Stock specifically for use therein and
contained, on the effective date thereof, in any Registration Statement under
which securities were registered under the Securities Act at the request of such
holder, any final prospectus contained therein, or any amendment or supplement
thereto; PROVIDED, HOWEVER, that such holder's obligation under this
SECTION 6(b) to indemnify and hold harmless the Company shall in no event
exceed, with respect to all such obligations, the lesser of the proceeds
received by such selling security holder from the sale of the Registrable
Securities through such offering, or the damage attributable solely to the
inclusion of such written information in such Registration Statement,
prospectus, or amendment or supplement suffered by the Person or Persons whose
claims gave rise to such losses, claims, damages or liabilities; and FURTHER
PROVIDED, HOWEVER, that no such indemnity shall exist with respect to any Person
making claims or demands to whom the Company or any other Person responsible for
delivering a final Prospectus to such claimant failed to deliver such prospectus
as amended or supplemented.
(c) If the indemnification provided for in this SECTION 6 from
the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
herein, 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 the indemnified parties in connection with the actions that resulted
in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party and indemnified parties 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
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parties, 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 any legal or other fees 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 6(c) 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
who was not guilty of such fraudulent misrepresentation.
7. CERTAIN LIMITATIONS ON REGISTRATION RIGHTS. Notwithstanding the
other provisions of this Agreement, the Company shall not be obligated to
register the Registrable Securities of any holder if (x) in the opinion of
counsel to the Company reasonably satisfactory to the holder and its counsel
(or, if the holder has engaged an investment banking firm, to such investment
banking firm and its counsel), the sale or other disposition of such stock, in
the manner proposed by such holder (or by such investment banking firm), may be
effected without registering such stock under the Securities Act, and (y) the
failure of the Company to register such stock will not result in a reduction in
the net proceeds to be received by such holder in connection with such sale or
other disposition.
8. MISCELLANEOUS.
(a) NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, facsimile
transmission or similar writing) and shall be given to such party at its address
or facsimile number set forth on the Schedule for Notices attached as Exhibit A
hereto, or such other address or facsimile number as such party may hereafter
specify for the purpose by notice to the Company. Each such notice, request or
other communication shall be effective, (i) if given by facsimile transmission,
when transmitted to the facsimile number specified in Exhibit A and confirmation
of receipt is received, (ii) if given by mail, seventy-two (72) hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, or (iii) if given by any other means, when delivered at
the address specified in this SECTION 8(a).
(b) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and
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assigns of each of the parties hereto including any Person to whom Registrable
Securities are transferred.
(c) AMENDMENTS AND WAIVERS. This Agreement may be modified or
amended or the provisions hereof waived with the written consent of the Company
and the Majority Holders.
(d) SECTION AND OTHER HEADINGS. The section and other headings
contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.
(e) SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement shall be determined to be invalid,
illegal or unenforceable in any respect for any reason, the validity, legality
and enforceability of any such provision or provisions in every other respect
and the remaining provisions of this Agreement shall not be in any way impaired.
(f) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND,
WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
(h) CONSENT TO JURISDICTION. THE COMPANY HEREBY IRREVOCABLY
CONSENTS TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN
BALTIMORE, MARYLAND IN ANY ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF ANY
DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER,
OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. THE COMPANY HEREBY
IRREVOCABLY CONSENTS TO THE SERVICE OF A SUMMONS AND COMPLAINT AND OTHER PROCESS
IN ANY ACTION, CLAIM OR PROCEEDING BROUGHT BY ANY PURCHASER IN CONNECTION WITH
THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER, OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS, ON BEHALF OF ITSELF AND ITS PROPERTY, IN THE MANNER
SPECIFIED IN SECTION 8(a) (PROVIDED TELECOPY NOTICES MAY NOT BE USED FOR THIS
PURPOSE). NOTHING IN THIS SECTION 8(h) SHALL AFFECT THE RIGHT OF ANY PURCHASER
TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT
OF ANY PURCHASER TO BRING ANY ACTION OR PROCEEDING AGAINST THE COMPANY OR ITS
PROPERTIES IN THE COURTS OF ANY OTHER JURISDICTIONS.
(i) WAIVER OF JURY TRIAL. EACH PURCHASER AND THE COMPANY EACH
HEREBY IRREVOCABLY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION,
CLAIM OR OTHER PROCEEDING ARISING OUT
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OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS
HEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
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IN WITNESS WHEREOF, the Company and the Purchaser have executed this
Agreement as of the date first above written.
MORRISON KNUDSEN CORPORATION,
a Delaware corporation
By ______________________________
Douglas L. Brigham
Treasurer
FIDELITY AND DEPOSIT
COMPANY OF MARYLAND,
a Maryland corporation
as Agent and as Purchaser
By:______________________________
Name:____________________________
Title:___________________________
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