Exhibit 10.27
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of
September 29, 1995 by and among New England Investment Companies, L.P., a
Delaware limited partnership ("NEIC") and Harris Associates L.P. ("HALP").
Capitalized terms used herein and not defined herein shall have the meanings set
forth in the Partnership Admission Agreement (as defined in Section 1.1(e)
hereof).
1. Registration Rights.
1.1. Definitions.
(a) The term "Exclusive Rights" means any rights of a Subsequent
Rightholder to cause NEIC to effect (or use its best efforts to
effect) the registration of Securities held by such Subsequent
Rightholder, which rights, by the terms of the agreement between
NEIC and such Subsequent Rightholder establishing such rights,
include the right to exclude any Holder from any participation in
such offering;
(b) The terms "Form S-3," "Form S-4" and "Form S-8" mean such
respective forms under the Securities Act of 1933, as amended
(the "1933 Act") as in effect on the date hereof or any successor
registration forms to Form S-3, Form S-4 and Form S-8,
respectively, under the 1933 Act subsequently adopted by the
Securities and Exchange Commission (the "SEC");
(c) The term "Holder" means each of HALP and to the extent such
transferee has executed a joinder to this Agreement substantially
in the form of Annex 1.1(c) hereto, (i) any Partner to whom HALP
may transfer Registrable Securities, or (ii) any transferee of
any Partner who has acquired at least 25% (or such lower
percentage as NEIC may in its sole discretion consent to with
respect to any given transfer) of the number of Registrable
Securities (A) allocable to such Partner as of the
Closing Date (but after giving effect to any repurchases pursuant
to Sections 1.2(a)(ii) and 1.2(a)(iii) of the Partnership
Admission Agreement) for transfers prior to the Adjustment Date
and (B) allocable to such Partner as of the Adjustment Date,
including the number allocable as of the Closing Date and as of
the 1996 Payment Date (after giving effect to any repurchases
pursuant to Sections 1.2(a)(ii), 1.2(a)(iii) and 1.2(b)(ii) of
the Partnership Admission Agreement), for transfers following the
Adjustment Date;
(d) The term "Initiating Holder(s)" means any Holder (or group of two
or more Holders) holding in the aggregate and requesting
registration of at least that number of Registrable Securities
the aggregate net offering price (after deduction of underwriting
discounts and commissions) of which is expected to be at least $5
million;
(e) The term "Partnership Admission Agreement" means the Partnership
Admission Agreement dated June 22, 1995 by and among NEIC, HALP
and HAI.
(f) The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration
statement or similar document in compliance with the 1933 Act,
and the automatic effectiveness or the declaration or ordering of
effectiveness of such registration statement or document;
(g) The term "1993 Registration Rights Agreement" means the
Registration Rights Agreement dated as of September 15, 1993 by
and among NEIC, Reich & Tang, Inc. ("RTI") and New England Mutual
Life Insurance Company ("TNE"), as in effect from time to time;
and
(h) The term "Registrable Securities" means (i) (A) any limited
partnership interest or other equity security of NEIC
("Securities") owned on the date hereof or hereafter acquired by
HALP (or any Holder) pursuant to Section 1.2(b) of the
Partnership Admission Agreement and (B) any Security issued as
(or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in
replacement of, such Securities; provided, however, that any of
such Securities (x) that have been previously sold to the public
pursuant to a registered public offering or pursuant to an
exemption from the registration requirements of the 1933 Act; (y)
that are eligible for sale pursuant to Rule 144(k) under the 1933
Act; and (z) that are the subject of either a Repurchase Notice
or a 1996 Repurchase Notice shall cease to be Registrable
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Securities and (ii) Registrable Securities as defined in the 1993
Registration Rights Agreement; and provided, further, however,
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that NEIC in its sole discretion may elect to include any
Securities as Registrable Securities that would otherwise cease
to be Registrable Securities under clause (y) of this Section
1.2(h);
(i) The number of units of "Registrable Securities then outstanding"
shall be determined by adding the number of Securities
outstanding which are, and the number of Securities issuable
pursuant to then exercisable or convertible securities which upon
issuance would be, Registrable Securities;
(j) The term "Subsequent Rightholder" means any person or entity to
which NEIC shall have granted, after the date of this Agreement,
rights to cause NEIC to effect (or use its best efforts to
effect) the registration of any Securities, but shall not include
any Holder;
(k) The term "TNE Co." means TNE or any entity controlled by,
controlling or under common control with TNE.
1.2. NEIC Registration. If NEIC proposes to register (including for this
purpose a registration effected by NEIC for holders of Securities
other than the Holders) any Securities under the 1933 Act in
connection with the public offering of such Securities solely for cash
(other than (i) a registration on Form S-8 relating solely to the sale
of Securities to participants in a NEIC compensation, incentive or
bonus plan, or (ii) a registration on Form S-4 or any successor form),
NEIC shall, at such time, promptly give each Holder written notice of
such registration. Upon the written request of any Holder given within
20 days after mailing of such notice by NEIC, NEIC shall use its best
efforts to cause a registration statement covering all of the
Registrable Securities that each such Holder has requested to be
registered to become effective under the 1933 Act, provided, however,
that the number of Registrable Securities of each Holder to be
included in such registration shall be subject to the provisions of
Sections 1.6, 1.10 and 1.11 hereof, and provided further, that the
Holders shall have no right under this Section 1.2 to participate in
any registration effected at the request of any Subsequent Rightholder
if such Subsequent Rightholder has Exclusive Rights with respect to
such registration. Except as otherwise provided in Section 1.11 of
this Agreement, Subsequent Rightholders shall be entitled to
participate in any offering pursuant to this Section 1.2, to the
extent provided in any agreement between such Subsequent Rightholders
and NEIC. NEIC shall be under no obligation to complete any proposed
registration or offering of Securities described in this Section 1.2
and shall incur no liability to any Holder for its failure to do so.
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1.3. Obligations of NEIC. Whenever required under this Section 1 to use its
best efforts to effect the registration of any Registrable Securities,
NEIC shall, as expeditiously as reasonably possible: Prepare and file
with the SEC a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration
statement to become effective, and, upon the request of any Holder of
the Registrable Securities registered thereunder, keep such
registration statement effective for up to 180 days or until the
Holders have informed NEIC in writing that the distribution of their
Securities has been completed; and shall:
(a) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection
with such registration statement, and use its best efforts to
cause each such amendment and supplement to become effective, as
may be necessary to comply with the provisions of the 1933 Act
with respect to the disposition of all securities covered by such
registration statement.
(b) Furnish to the Holders such reasonable number of copies of a
prospectus, including a preliminary prospectus, in conformity
with the requirements of the 1933 Act, and such other documents
as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them.
(c) 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 as shall be
reasonably requested by the Holders, provided that NEIC shall not
be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of
process in any such jurisdiction.
(d) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such
offering. Each Holder participating in such underwriting shall
also enter into and perform its obligations under such an
agreement, including furnishing any opinion of counsel or
entering into a lock-up agreement restricting the sale of such
Holder's Registrable Securities for some period reasonably
requested by the managing underwriter. Each Holder shall also
enter into such a lockup agreement reasonably requested by the
managing underwriter.
(e) Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating
thereto covered by
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such registration statement is required to be delivered under the
1933 Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the
light of the circumstances then existing and promptly file such
amendments and supplements as may be required pursuant to
subparagraph (a) of this Section 1.3 on account of such event and
use its best efforts to cause each such amendment and supplement
to become effective.
(f) Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Section 1, on the date
that such Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant
to this Section 1, if such securities are being sold through
underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with
respect to such securities becomes effective, (i) an opinion,
dated such date, of the counsel representing NEIC for the
purposes of such registration, in form and substance as is
customarily given by company counsel to the underwriters in an
underwritten public offering, addressed to the underwriters, if
any, and to the Holders requesting registration of Registrable
Securities and (ii) a letter dated such date, from the
independent certified public accountant of NEIC, in form and
substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities.
(g) Apply for listing and use its best efforts to list the
Registrable Securities being registered on any national
securities exchange on which a class of NEIC's equity securities
is listed or, if NEIC does not have at such time a class of
equity securities listed on a national securities exchange, apply
for qualification and use its best efforts to qualify the
Registrable Securities being registered for inclusion on the
automated quotation system of the National Association of
Securities Dealers, Inc.
1.4. Furnish Information. It shall be a condition precedent to the
obligations of NEIC to take any action pursuant to this Section 1 in
respect of the Registrable Securities of any selling Holder that such
selling Holder shall furnish to NEIC such information regarding
itself, the Registrable Securities held by it, and the intended method
of disposition of such securities as shall be required to effect the
registration of its Registrable Securities.
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1.5. Expenses of Registration. NEIC shall bear and pay all expenses
incurred in connection with any offering of Registrable Securities
with respect to any registration pursuant to Sections 1.2 and 1.8,
including, without limitation, all registration, filing and
qualification fees, printing and accounting fees, fees and
disbursements of counsel for NEIC and the reasonable fees and
disbursements of one counsel for the selling holders of such
Registrable Securities. Underwriting discounts and commissions
relating to Registrable Securities will be borne and paid ratably by
the holders of such Registrable Securities.
1.6. Underwriting Requirements. In connection with any offering involving
an underwriting of securities being issued by NEIC, NEIC shall not be
required under Section 1.2 to include any of the Holders' securities
in such underwriting unless they accept the terms of the underwriting
as agreed upon between NEIC and the underwriters selected by it, and
then only in such quantity, if any, as will not, in the opinion of the
underwriters, jeopardize the success of the offering by NEIC. If the
managing underwriter for the offering shall advise NEIC in writing
that the total amount of securities, including Registrable Securities,
requested by holders of Securities to be included in such offering
exceeds the amount of Securities that can be successfully offered,
then NEIC shall be required to include in the offering only that
number of such Securities, including Registrable Securities, which the
managing underwriter believes will not jeopardize the success of the
offering (the Securities so included to include first all Securities
to be sold for the account of NEIC and then any remaining availability
to be apportioned among participating holders of Securities as
follows: the number of Securities held by holders that may be included
in the underwriting, if any, shall, subject to the provisions of
Sections 1.10 and 1.11 hereof, be apportioned pro rata among the
selling holders in accordance with the number of Securities held by
such holders).
1.7. Indemnification. In the event any Registrable Securities are included
in a registration statement under this Section 1:
(a) To the extent permitted by law, NEIC will indemnify and hold
harmless each Holder, the officers, directors, partners, agents
and employees of each Holder, any underwriter (as defined in the
1933 Act) for such Holder and each person, if any, who controls
such Holder or underwriter within the meaning of the 1933 Act or
the Securities Exchange Act of 1934, as amended (the "1934 Act")
(collectively, the "NEIC Indemnitees"), against any losses,
claims, damages or liabilities (joint or several) to which they
may become subject under the 1933 Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
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based upon any of the following statements, omissions or
violations (each a "Violation"): (i) any untrue statement or
alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus or
final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or (iii)
any violation or alleged violation by NEIC of the 1933 Act, the
1934 Act, any state securities law or any rule or regulation
promulgated under the 1933 Act, the 1934 Act or any state
securities law. NEIC will reimburse each NEIC Indemnitee for any
legal or other expenses reasonably incurred by such NEIC
Indemnitee in connection with investigating or defending any such
loss, claim, damage, liability or action. The indemnity agreement
contained in this subsection 1.7(a) shall not apply to amounts
paid in settlement of any loss, claim, damage, liability or action
if such settlement is effected without the consent of NEIC (which
consent shall not be unreasonably withheld), nor shall NEIC be
liable to a Holder, any officer, director, partner, agent or
employee of such Holder, any underwriter for such Holder or any
person who controls such Holder or underwriter, in any such case
for any such loss, claim, damage, liability or action (i) to the
extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration
by or on behalf of such Holder, any underwriter for such Holder or
any person who controls such Holder or underwriter or (ii) in case
of a sale directly by a Holder of Registrable Securities
(including a sale of such Registrable Securities through any
underwriter retained by such Holder to engage in a distribution
solely on behalf of such Holder), such untrue statement or alleged
untrue statement or omission or alleged omission was contained in
a preliminary prospectus and corrected in a final or amended
prospectus, and such Holder failed to deliver a copy of the final
or amended prospectus at or prior to the confirmation of the sale
of the Registrable Securities to the person asserting any such
loss, claim, damage or liability in any case where such delivery
is required by the 1933 Act.
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless NEIC, its general partner, each of the directors
of the general partner, each of the officers of NEIC or of the
general partner who have signed the registration statement, each
person, if any, who controls NEIC or its general partner within
the meaning of the 1933 Act or the 1934 Act, each agent and any
underwriter for NEIC, and any
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other Holder selling Securities in such registration statement or
any of its directors, officers, partners, agents or employees or
any person who controls such Holder or underwriter (collectively,
the "Holder Indemnitees"), against any losses, claims, damages or
liabilities (joint or several) to which any Holder Indemnitee may
become subject, under the 1933 Act, the 1934 Act or other federal
or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by or on behalf of
such Holder expressly for use in connection with such
registration; and each such Holder will reimburse any legal or
other expenses reasonably incurred by any Holder Indemnitee in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the liability
of any Holder hereunder shall be limited to the amount of proceeds
received by such Holder in the offering giving rise to the
Violation; and provided further, that the indemnity agreement
contained in this Section 1.7(b) shall not apply to amounts paid
in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Holder
(which consent shall not be unreasonably withheld) nor, in the
case of a sale directly by NEIC of its securities (including a
sale of such Securities through any underwriter retained by NEIC
to engage in a distribution solely on behalf of NEIC), shall the
Holder be liable to any Holder Indemnitee in any case in which
such untrue statement or alleged untrue statement or omission or
alleged omission was contained in an preliminary prospectus and
corrected in a final or amended prospectus, and NEIC failed to
deliver a copy of the final or amended prospectus at or prior to
the confirmation of the sale of the Securities to the person
asserting any such loss, claim, damage or liability in any case
where such delivery is required by the 1933 Act.
(c) Promptly after receipt by a NEIC Indemnitee or a Holder Indemnitee
of notice of the commencement of any action (including any
governmental action), such Indemnitee will, if a claim in respect
thereof is to be made against any indemnifying party under this
Section 1.7, deliver to the indemnifying party a written notice of
the commencement thereof and the indemnifying party shall have the
right to participate in, and, to the extent the indemnifying party
so desires, jointly with any other indemnifying party similarly
noticed, to assume and control the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an
Indemnitee shall have the right to retain its own counsel, with
the fees and expenses to be paid by the indemnifying
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party, if representation of such Indemnitee by the counsel
retained by the indemnifying party would be inappropriate due to
actual or potential differing interests, as reasonably determined
by either party, between such Indemnitee and any other party
represented by such counsel in such proceeding. The failure to
deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve
such indemnifying party of any liability to the Indemnitee under
this Section 1.7 to the extent of such prejudice, but the omission
so to deliver written notice to the indemnifying party will not
relieve it of any liability that it may have to any Indemnitee
otherwise than under this Section 1.7.
(d) The obligations of NEIC and the Holders under this Section 1.7
shall survive the completion of any offering of Registrable
Securities in a registration statement under this Section 1.
1.8. Form S-3 Registration.
(a) In case NEIC shall receive from any Initiating Holder(s) a
written request that NEIC effect a registration on Form S-3 (or
on any successor form to Form S-3 regardless of its designation)
and any related qualification or compliance with respect to all
or a part of the Registrable Securities owned by such Initiating
Holder(s), NEIC will:
(i) promptly give written notice of the proposed registration,
and any related qualification or compliance, to the other
Holders; and
(ii) use its best efforts to effect, as soon as practicable, such
registration, qualification or compliance as may be so
requested and as would permit or facilitate the sale and
distribution of all such Initiating Holder(s)' Registrable
Securities as are specified in such request, together with
all of the Registrable Securities of the other Holders
joining in such request as are specified in a written
request given within 20 days after receipt of such written
notice from NEIC, subject to the provisions of Section 1.9
hereof; provided, however, that NEIC shall not be obligated
to effect any such registration, qualification or
compliance, pursuant to this Section 1.8 if: (1) Form S-3
(or any successor form to Form S-3 regardless of its
designation), is not available for such offering by the
Holders; (2) the aggregate net offering price (after
deduction of underwriting discounts and commissions) of the
Registrable Securities specified in such request is less
than $5,000,000; (3) NEIC has already effected one
registration on
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Form S-3 within the previous six-month period (exclusive of
registrations effected pursuant to Section 1.2 hereof); or
(4) NEIC shall furnish to the Holders a certificate signed
by the President of the general partner of NEIC stating that
in the good faith judgment of the board of directors of such
general partner of NEIC, it would not be in the best
interests of NEIC and its security for such Form S-3
registration to be effected at such time, in which event
NEIC shall have the right to defer the filing of the Form S-
3 registration for a period of not more than 120 days after
receipt of the request of the Initiating Holder(s) under
this Section 1.8.
(b) In connection with any offering pursuant to paragraph (a) of this
Section 1.8, NEIC shall not be required to include any of the
Holders' Securities in such underwriting unless the participating
Holder or Holders enter into an underwriting agreement in
customary form with an underwriter selected for such underwriting
by the Initiating Holder(s) or, in the event the other Holder(s)
join in such request, an underwriter selected by mutual agreement
of the Holders, provided, however, that in the event the Holders
are unable to agree on the selection of an underwriter, each
Holder shall select one underwriter for such underwriting and
provided further, that in the event the Holders are unable to
agree on which underwriter selected by them shall serve as the
managing underwriter, the board of directors of the general
partner of NEIC shall make such determination. The Holder or
Holders making or joining in a request under paragraph (a) of this
Section 1.8 shall consult with the board of directors of the
general partner of NEIC before selecting such underwriter or
underwriters, but approval of such board of directors is not
required for the selection of an underwriter. Except as otherwise
provided in Section 1.11 of this Agreement, Subsequent
Rightholders shall be entitled to participate in any offering
pursuant to this Section 1.8, to the extent provided in any
agreement between such Subsequent Rightholders and NEIC. If the
managing underwriter for the offering shall advise NEIC and the
participating holders of Securities in writing that the total
amount of Securities, including Registrable Securities, requested
by holders of Securities to be included in such offering exceeds
the amount of Securities that can be successfully offered, then
NEIC shall be required to include in the offering only that number
of such Securities, including Registrable Securities, which the
managing underwriter believes will not jeopardize the success of
the offering (the Securities so included to be apportioned as
follows: the number of Securities held by holders that may be
included in the underwriting shall, subject to the provisions of
Sections 1.10 and 1.11 hereof, be
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apportioned pro rata among the selling holders in accordance with
the number of Securities held by such holders).
1.9. Registrations under the 1993 Registration Rights Agreement. The
Holders shall have the right to participate on a pro rata basis in
registrations effected pursuant to Sections 1.2 and 1.8 of the 1993
Registration Rights Agreement, on such terms and subject to the
limitations contained therein.
1.10. Special Participation Rights of RTI. Until such time as the aggregate
offering price of all Registrable Securities that are Registrable
Securities within the meaning of Section 1.1(h)(ii) sold pursuant to a
registered public offering shall equal $90 million, RTI shall have the
right, in each registered offering provided for in this Section 1 or
in Section 1 of the 1993 Registration Rights Agreement in which TNE
Co. is a seller, to sell no fewer Registrable Securities than TNE Co.
is selling.
1.11. Limitations on Registration Rights. Each of the Holders acknowledges
that so long as the 1993 Registration Rights Agreement remains in
effect and RTI holds 3,600,000 or more limited partnership units of
NEIC (or such lesser or greater number of limited partnership units or
other Securities as is determined by equitable adjustment to reflect
any split (by distribution or otherwise), reverse split, combination,
conversion or other similar adjustment in the number of outstanding
Securities of NEIC that may occur after the date hereof):
(a) RTI shall have the right to participate in any public offering of
Securities for which NEIC shall effect a registration at the
request of any Holder or Subsequent Rightholder; and if the
managing underwriter of such offering advises the participating
holders of Securities in writing that marketing factors require a
limitation of the number of Securities to be underwritten, then
the number of Securities that may be included in the registration
shall be apportioned pro rata among the participating holders in
accordance with the number of Securities held by the participating
holder (unless otherwise agreed by all the participating holders);
and
(b) Except with RTI's consent, RTI's participation in any offering
pursuant to Section 1.2 or 1.8 of this Agreement shall in no event
be reduced in order to make possible the participation (or
increased participation) in such offering of any Holder or any
Subsequent Rightholder.
1.12. Limitations on Subsequent Registration Rights. Each Holder shall
have the right to participate in any public offering of Securities
for which NEIC shall effect a registration at the request of any
Subsequent Rightholder (other than registrations effected as the
result of a Subsequent Rightholder's exercise of
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Exclusive Rights); and if the managing underwriter of such
offering advises the participating holders of Securities in
writing that marketing factors require a limitation of the number
of Securities to be underwritten, then, subject to Sections 1.10
and 1.11, the number of Securities that may be included in the
registration shall be appropriated pro rata among the
participating holders in accordance with the number of Securities
held by the participating holder (unless otherwise agreed by all
the participating holders).
2. Representations and Warranties. Each Holder represents and warrants as
follows:
2.1. Authority. Such Holder has full right, power and authority to execute,
deliver and perform this Agreement and to perform such Holder's
obligations hereunder. This Agreement has been duly executed and
delivered by such Holder and constitutes a valid and legally binding
obligation of such Holder, enforceable in accordance with its terms,
except as the enforceability thereof may be subject to or limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting the rights of creditors generally and
judicial limitations upon the specific performance of certain types of
obligations.
2.2. No Violation. Neither the execution and delivery by such Holder of
this Agreement nor consummation of the transactions contemplated
herein, nor compliance with the terms, conditions and provisions
hereof will conflict with or violate any provision of law or the
statutes of incorporation, certificate of incorporation or articles of
organization and bylaws of such party, or result in a violation or
default in any provision of any regulation, order, writ, injunction or
decree of any court or governmental agency or authority or of any
agreement or instrument to which such Holder is a party or by which
such Holder is bound or to which such Holder is subject, or constitute
a default thereunder.
3. Miscellaneous.
3.1. No Legend. No Security to be sold or otherwise transferred by any
Holder hereunder shall bear any legend restricting the transferability
of such Security (other than as may be required by the NEIC's Amended
and Restated Agreement of Limited Partnership (the "Partnership
Agreement")), nor shall NEIC cause or permit any transfer agent or
registrar appointed by NEIC with respect to such Security to refuse or
fail to effect a transfer or registration with respect to such
Security (other than as may be required by the Partnership Agreement),
provided that such Holder provides to NEIC a certificate in connection
with such transfer or registration to the effect that such transfer or
registration is not in violation of any applicable securities or other
law.
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3.2. Notices. All notices, requests, consents and demands shall be in
writing and shall be personally delivered, mailed, postage prepaid,
telecopied or telegraphed, to the addresses set forth on Exhibit A
hereto. All such notice, requests, consents, demands and other
communications shall, when mailed (registered or certified mail,
return receipt requested, postage prepaid), personally delivered, or
telegraphed, be effective four days after deposit in the mails, when
personally delivered, or when delivered to the telegraph company,
respectively, addressed as aforesaid, unless otherwise provided herein
and, when telecopied, shall be effective upon actual receipt. Copies
of all notice and other communications shall be sent to the parties
indicated on Exhibit A hereto at their respective addresses set forth
therein.
3.3. Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the matters contemplated herein. This
Agreement supersedes any and all prior understandings or agreements as
to the subject matter of this Agreement.
3.4. Amendments, Waivers and Consents. Any provision in this Agreement to
the contrary notwithstanding, changes in or additions to this
Agreement may be made, and compliance with any covenant or provision
herein set forth may be omitted or waived, if NEIC shall obtain
consent thereto in writing from the Holders of two-thirds of the
Registrable Securities as defined in Section 1.1(h)(i) hereof then
outstanding.
3.5. Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of the respective
parties hereto, provided, however, that the rights to cause NEIC to
register Registrable Securities pursuant to Section 1 hereof, together
with the corresponding obligations may not be assigned by any Holder
except in connection with a transfer permitted by Section 1.1(c)
hereof to another Holder, and provided further, that NEIC shall not
have the right to assign its obligations hereunder or any interest
herein without obtaining the prior written consent of the Holders in
accordance with Section 2.4.
3.6. Subsequent Changes. Reference is made to Section 12.4 of the Agreement
of Limited Partnership of NEIC. To the extent not contrary to the
provisions of said Section 12.4, if any or all of the Registrable
Securities are converted into or exchanged for securities of another
entity in connection with a Restructuring referred to in said Section
12.4, each of the parties hereto agrees to use its best efforts to
obtain the agreement of such entity to confer upon the Holders
registration rights with respect to the securities of such entity to
be held by them that are substantially similar to the registration
rights provided herein with respect to Registrable Securities. Except
as otherwise set forth in this Section
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3.6, the registration rights described in this Agreement shall cease
to exist on the day prior to the date on which NEIC shall cease to be
grandfathered from the application of (S) 7704 of the Internal Revenue
Code.
3.7. General. The headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or
interpretation of this Agreement. In this Agreement the singular
includes the plural, the plural includes the singular, and the
masculine gender includes the neuter, masculine and feminine genders.
This Agreement shall be governed by and construed under the internal
laws of The Commonwealth of Massachusetts.
3.8. Severability. If any provisions of this Agreement shall be found by
any court of competent jurisdiction to be invalid or unenforceable,
the parties hereby waive such provision to the extent that it is found
to be invalid or unenforceable. Such provision shall, to the maximum
extent allowable by law, be modified by such court so that it becomes
enforceable, and, as modified, shall be enforced as any other
provision hereof, all other provisions hereof continuing in full force
and effect.
3.9. Counterparts. This Agreement may be executed in counterparts, all of
which together shall constitute one and the same instrument.
3.10. Specific Performance. NEIC recognizes that the rights of the Holders
under this Agreement are unique, and, accordingly, the Holders shall,
in addition to such other remedies as may be available to them at law
or in equity, have the right to enforce their rights hereunder by
actions for injunctive relief and specific performance to the extent
permitted by law. This Agreement is not intended to limit or abridge
any rights of the Holders which may exist apart from this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
NEW ENGLAND INVESTMENT COMPANIES,
L.P.
By NEW ENGLAND INVESTMENT
COMPANIES, INC., its general partner
By /s/ Peter S. Voss
------------------------------------
Title: Chairman and Chief Executive
Officer
HARRIS ASSOCIATES L.P.
By HARRIS ASSOCIATES, INC.,
its general partner
By /s/ Victor Morgenstern
-------------------------------------
Title: President
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EXHIBIT A
ADDRESSES
New England Investment Companies, L.P.
c/o New England Investment Companies, Inc.
399 Boylston Street
Boston, MA 02117
Attention: Edward N. Wadsworth, Esq.
General Counsel
with a copy to:
Christopher A. Klem, Esq.
Ropes & Gray
One International Place
Boston, MA 02110
Harris Associates L.P.
Two North La Salle Street
Suite 500
Chicago, Illinois 60602-3790
Attention: Victor A. Morgenstern
with a copy to:
Herbert S. Wander, Esq.
Katten, Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
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Annex 1.1(c)
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JOINDER AGREEMENT
Reference is hereby made to the Registration Rights Agreement dated as of
_______, 1995 (the "Registration Rights Agreement") by and between New England
Investment Companies, L.P. and Harris Associates L.P. The undersigned hereby
(i) represents that it has examined the Registration Rights Agreement and that
it is a Holder as defined therein and (ii) agrees to be bound by the terms of
the Registration Rights Agreement as if an original Holder thereunder.
IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be
duly executed as of the date set forth below.
---------------------------
Date:
Name and Address:
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