EXHIBIT 4.33
REGISTRATION RIGHTS
1. DEFINITIONS. For purposes of this Exhibit H:
The term "ACT" means the Securities Act of 1933, as amended.
The term "HOLDER" means any person owning or having the right
to acquire Registrable Securities or any assignee thereof in accordance
with Section 6 hereof.
The term "1934 ACT" shall mean the Securities Exchange Act of
1934, as amended.
The term "REGISTER," "REGISTERED," and "REGISTRATION" refer to
a registration effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the
declaration or ordering of effectiveness of such registration statement
or document.
The term "REGISTRABLE SECURITIES" has the meaning set forth in
the Agreement, as well as any Common Stock issued as a dividend or
other distribution with respect to, or in exchange for or in
replacement of, such Registrable Securities, excluding in all cases,
however, any Registrable Securities (I) sold by a person in a
transaction in which his rights pursuant to this Exhibit H are not
assigned or (II) registered under the Act, the registration statement
in connection therewith has been declared effective, and such shares
have been disposed by such holder pursuant to such registration
statement; provided, however, that any such securities shall cease to
be Registrable Securities if the registration rights granted hereunder
are not transferred in accordance with the provisions of Section 6
below.
The term "SEC" shall mean the Securities and Exchange
Commission.
All other capitalized terms used herein which are not defined
herein shall have the meaning given elsewhere in this Exhibit or in the
Agreement and Plan of Merger, as applicable.
2. OBLIGATIONS OF PARENT. Whenever Parent effects the registration of
any Registrable Securities, Parent shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the SEC on any appropriate form a
registration statement with respect to the Registrable Securities proposed to be
registered and use all commercially reasonable efforts to cause such
registration statement to become effective as soon as practicable thereafter.
(b) Unless such registration is a firm commitment underwriting,
prepare and file with the SEC such amendments (including post-effective
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 Act with respect to
the disposition of all Registrable Securities covered by such registration
statement,
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until such time as Holder is able to sell all of the Registrable Securities held
by Holder in a single three-month period in compliance with Rule 144.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use all commercially reasonable efforts to register or qualify
all Registrable Securities and other securities covered by such registration
statement under such other securities or "blue sky" laws of such jurisdictions
as the underwriter or such sellers (not to exceed ten jurisdictions) shall
reasonably request and do any and all other acts and things as may be reasonably
necessary to consummate the disposition in such jurisdictions of the Registrable
Securities covered by such registration statement, except that Parent shall not
for any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it is not so qualified, or to
subject itself to taxation in respect of doing business in any such
jurisdiction, or to consent to general service of process in any such
jurisdiction.
(e) Immediately notify each seller of Registrable Securities covered
by such registration statement, at any time when a prospectus relating thereto
is required to be delivered under the 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 any
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing or if it
is necessary, in the opinion of counsel to Parent, to amend or supplement such
prospectus to comply with law, and at the request of any such seller prepare and
deliver to such seller a reasonable number of copies of a supplement to or any
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing and shall
otherwise comply in all material respects with law and so that such prospectus,
as amended or supplemented, will comply with law.
(f) Otherwise use all commercially reasonable efforts to comply with
all applicable rules and regulations of the SEC.
(g) 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.
(h) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange or automated trading system
on which similar securities issued by Parent are then listed.
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(i) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
3. FURNISH INFORMATION. Any selling Holder shall furnish to Parent 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 such Holder's Registrable Securities.
4. EXPENSES OF REGISTRATION. All expenses incurred in connection with
registrations, filings or qualifications pursuant to this Exhibit H, including,
without limitation, all registration, filing and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for Parent (but excluding
underwriter's commissions, fees and discounts and any fees or expenses of others
employed or retained by a selling Holder) shall be borne by Parent.
5. INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement pursuant to this Exhibit H:
(a) To the extent permitted by law, Parent will indemnify and hold
harmless each Holder, any underwriter (as defined in the Act) for such Holder
and each person, if any, who controls such Holder or underwriter within the
meaning of the Act or the 1934 Act against any losses, claims, damages, or
liabilities, joint or several) to which they may become subject under the 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
based upon any of the following statements, omissions or violations
(collectively 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 not misleading, or (iii) any violation or alleged
violation by Parent of the Act, the 1934 Act, any state securities law or any
rule or regulation promulgated under the 1934 Act or any state securities law;
and, subject to subsection 5(c) below, Parent will reimburse each such Holder,
underwriter or controlling person, as incurred, any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity agreement contained in this subsection 5(a) 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 Parent (which consent shall not be
reasonably withheld), nor shall Parent be liable in any such case for any such
loss, claim, damage, liability, or action 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 any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless Parent, each of its directors, each of its officers
who has signed the registration statement, each person, if any, who controls
Parent within the meaning of the Act, any underwriter, any other Holder selling
securities in such registration statement and any controlling person of any such
underwriter or other Holder, and any agent of Parent, against any losses,
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claims, damages, or liabilities joint or several) to which any of the foregoing
persons may become subject, under the 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 such Holder
expressly for use in connection with such registration; and each such Holder
will pay, as incurred, any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to this subsection 5(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 5(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 reasonably
withheld; provided, that, in no event shall any indemnity under this subsection
5(b) exceed the gross proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 5, 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
receiving similar notice, to assume the defense thereof with counsel reasonably
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding; otherwise, the indemnified party shall be
responsible for the fees and expenses of its counsel. 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
indemnified party under this Section 5.
(d) Except as provided in the last sentence of subsection 5(c)
above, if the indemnification provided for in this Section 5 is held by a court
of competent jurisdiction to be unavailable to an indemnified party with respect
to any loss, liability, claim, damage, or expense referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such loss, liability, claim, damage, or expense in such proportion as
is appropriate to reflect the relative fault of the indemnifying party on the
one hand and of the indemnified party on the other in connection with the
statements or omissions that resulted in such loss, liability, claim, damage, or
expense as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party.
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(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in conflict
with the foregoing provisions, the provisions in the underwriting agreement
shall control.
(f) The obligations of Parent and Holders under this Section 5 shall
survive the completion of any offering of Registrable Securities pursuant to a
registration statement pursuant to this Exhibit H.
6. ASSIGNMENT OF REGISTRATION RIGHTS. The registration rights of the
Holders may be assigned (but only with all related obligations) by a Holder to a
transferee or assignee of such securities who purchases from such Holder at
least 100,000 shares of Registrable Securities (subject to appropriate
adjustment for stock splits, stock dividends, combinations and other
recapitalizations), provided: (a) Parent is promptly after such transfer,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned; (b) such transferee or assignee agrees in writing to be bound by
and subject to the terms and conditions of this document, including without
limitation the provisions of the Lock-Up Agreement; and (c) such assignment
shall be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted under
the Act.
7. TERMINATION OF REGISTRATION RIGHTS. Notwithstanding anything in this
Exhibit H to the contrary, no Holder shall be entitled to exercise any right
provided for in this Exhibit H at such time as such Holder is able to sell all
of such Holder's Registrable Securities in a single three-month period in
compliance with Rule 144.
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