EXHIBIT 10.28
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of July 13, 1998, by and between GeoLogistics Corporation, a
Delaware corporation (the "COMPANY"), and each of the Investors listed on
EXHIBIT A hereto (singularly an "INVESTOR" and collectively, the "INVESTORS").
In consideration of the agreements and mutual covenants set forth
herein, the parties hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following
terms shall have the following meanings, and capitalized terms not otherwise
defined herein have the meanings assigned to them in that certain Fourth
Amended and Restated Stockholders Agreement dated as of July 10, 1998, among
the Company and the Investors, as the same may be modified or amended from
time to time:
"AFFILIATE" of a Holder means any Person which directly or
indirectly controls, is controlled by, or is under common control with such
Holder. "Control," "controlled by" and "under common control with" means
direct or indirect possession of the power to direct or cause the direction
of management or policies (whether through ownership of voting securities, by
contract or otherwise); PROVIDED that control shall be conclusively presumed
when any Person or entity or affiliated group directly or indirectly owns ten
percent (10%) or more of the securities having ordinary voting power for the
election of a majority of the directors of a corporation.
"AGREEMENT" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"COMMISSION" means the Securities and Exchange Commission, or any
other federal agency then administering the Securities Act and the Exchange
Act.
"COMMON STOCK" means the common stock of the Company, par value
$.001 per share, issuable upon liquidation or redemption of Preferred Stock
or upon the sale, transfer or exchange of Preferred Stock to the Company by
the Holders.
"COMPANY" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"CONTROLLING PERSON" shall have the meaning assigned to such term
in SECTION 8.
"CUTBACK" shall have the meaning assigned to such term in SECTION
3(c)(ii).
"EXCHANGE ACT" means 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.
"FAMILY MEMBER" means any Holder's spouse, siblings, children,
children's spouses, grandchildren or their spouses or any trusts for the
benefit of any of the foregoing.
"HOLDER" means any Investor who holds any shares of Preferred Stock
or Common Stock entitled to registration rights hereunder.
"INDEMNIFIED PARTY" shall have the meaning assigned to such term in
SECTION 8.
"INDEMNIFYING PARTY" shall have the meaning assigned to such term
in SECTION 8.
"LOSSES" means all losses, claims, damages or liabilities (other
than consequential damages or incidental lost profits) and reasonable costs
and expenses related thereto.
"OCM" means OCM Principal Opportunities Fund, L.P., a Delaware
limited partnership.
"OCM AFFILIATE" means any investor in or any employee of OCM, TCW
Asset Management Company, a California corporation ("TAMCO"), Trust Company
of the West, a California trust company ("TRUSTCO") or Oaktree Capital
Management, LLC ("OAKTREE"), a California limited liability company, or in
any company, joint venture, limited liability company, association or
partnership of which the OCM, TAMCO, Trustco or Oaktree, is a shareholder,
manager or general partner, as the case may be.
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"PERSON" shall mean any individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization or government or agency or political
subdivision thereof.
"PREFERRED STOCK" means the preferred stock, $.001 par value per
share, of the Company.
"REGISTRATION EXPENSES" shall have the meaning assigned to such
term in SECTION 7(a).
"SECURITIES" means the Common Stock and the Preferred Stock.
"SECURITIES ACT" means 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.
"SIMON ENTITY" means Logistical Simon, L.L.C., a Delaware limited
liability company, WESINVEST, Inc., a Delaware corporation or William E.
Simon & Sons, L.L.C., a Delaware limited liability company.
"STOCKHOLDERS AGREEMENT" means the Fourth Amended and Restated
Stockholders Agreement dated as of July 10, 1998 by and among the Company and
each of the other Holders listed on EXHIBIT A thereto, as the same may be
amended from time to time.
"WES&S" means Logistical Simon, L.L.C., a Delaware limited
liability company.
"WES&S AFFILIATE" means any Simon Entity or any partnership,
limited liability company or corporation that directly or indirectly, through
one or more intermediaries, has control of, is controlled by or is under
common control with (i) any Simon Entity or (ii) any shareholder, partner or
member of a Simon Entity or any such shareholder's, partner's or member's
spouse, siblings, children, children's spouses, grandchildren or their
spouses or any trusts for the benefit of any of the foregoing.
SECTION 2. ACKNOWLEDGEMENT OF RIGHTS. The Company will, upon
request of a Holder, acknowledge in writing the Company's obligation in
respect of the rights to which a Holder shall be entitled under this
Agreement, PROVIDED that the failure
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of a Holder to make any such request shall not affect the continuing
obligation of the Company to the Holder in respect of such rights.
SECTION 3. DEMAND REGISTRATION.
(a) Subject to the limitations contained in SECTION 5 and SECTION
6, at any time following July 15, 2000 as Holders of not less than a majority
of the issued and outstanding shares of Preferred Stock (the "DEMAND
PERCENTAGE") shall give written notice to the Company requesting the
registration of the transfer of such number of shares of Preferred Stock as
shall be requested by such requesting Holder or Holders (the "DEMAND
NOTICE"), and thereupon, the Company shall, as expeditiously as possible,
prepare and file a registration statement under the Securities Act covering
the shares specified in such Demand Notice, and shall use its best efforts to
cause such registration statement to become effective, all in accordance with
the provisions of this Agreement; PROVIDED that, subject to the provisions of
SECTION 3(c) hereof, the Company shall be obligated to effect registration
pursuant to this SECTION 3(a) no more than once.
(b) Whenever the Company shall have received a demand pursuant to
SECTION 3(a) above to effect the registration of any shares, the Company
shall promptly give written notice to each other Holder and allow each such
Holder the opportunity to participate in such registration. Each such Holder
may, within ten (10) days after receipt of such notice, request in writing
that all of such Holder's shares, or any portion thereof designated by such
Holder, be included in the offering.
(c) The Company shall proceed as expeditiously as possible after
receipt of a demand pursuant to SECTION 3(a) above to file a registration
statement and use its best efforts to effect, within ninety (90) days of the
date of the Demand Notice, the registration of an offering under the
Securities Act, such registration statement to be declared effective by the
Commission not later than one hundred and eighty (180) days from the date of
such Demand Notice under this SECTION 3. Such offering shall include:
(i) the shares specified in the Demand Notice given pursuant
to SECTION 3(a) above; and
(ii) all shares that other Holders have requested be included
in the offering pursuant to SECTION 3(b) above;
all to the extent required to permit the Holders to dispose of such shares in
compliance with applicable law; PROVIDED HOWEVER,
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that if the managing underwriter of any such offering shall have determined
that the inclusion of any shares pursuant to SECTION 3(b) above shall
adversely affect the price, terms or number of securities to be underwritten
and sold on behalf of the Holders initiating such demand registration
pursuant to SECTION 3(a) above, then (x) the Company shall not be required to
register any Securities pursuant to this Section 3 until such time as the
Holders inform the Company that (1) such offering will not be an underwritten
offering or (2) the managing underwriter has agreed that the inclusion of
shares pursuant to SECTION 3(b) shall not adversely affect the price, terms
or number of securities to be underwritten and sold on behalf of the Holders
initiating such demand registration and (y) the Holders of the Demand
Percentage shall be entitled to require the Company to file a registration
statement with respect to the Securities notwithstanding the previous
exercise of the rights of such Holders pursuant to this Section 3.
(d) A registration statement filed pursuant to this SECTION 3
shall remain effective until the first to occur of (i) the sale of all of the
shares registered under such registration statement or (ii) the date two
years following the date such registration statement was declared effective
by the Commission, excluding any periods during which the Commission shall
have issued any stop order with respect to such registration statement. If
the registration statement is part of a shelf offering, the Company shall be
obligated to keep such registration statement effective for a period of not
less than two years.
(e) The Holders electing to participate in such offering shall
have the right to select the managing underwriter to be engaged in connection
with any such registration subject to the approval of the Company (which
approval shall not be unreasonably withheld). Any such underwriter shall be
a member firm of the New York Stock Exchange with a net capital of at least
One-Hundred Million Dollars ($100,000,000).
(f) If, at any time prior to the effectiveness of the registration
statement referred to in this SECTION 3, the Holders initiating the Demand
Notice in SECTION 3(a) above elect to withdraw such registration statement
prior to its date of effectiveness, the Company shall promptly withdraw such
registration statement prior to its effectiveness and such withdrawing
Holders shall forfeit the foregoing demand registration rights referred to in
SECTIONS 3(a) AND (b) above. Notwithstanding the foregoing, the demand
registration rights referred to in SECTIONS 3(a) OR (b) above shall survive a
pre-effectiveness election to withdraw as set forth in this SECTION
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3(f), if either (i) such withdrawing Holders reimburse the Company for all of
its Registration Expenses in connection with the preparation of such
withdrawn registration statement or (B) the non-demanding Holders elect to
replace the withdrawing Holders (in which event such non-demanding Holders
shall have been deemed to have exercised their demand registration right).
(g) To the extent that any Holders electing a demand registration
determine as of the contemplated offering date not to sell their shares
pursuant to an underwritten offering and such Holders do not reimburse the
Company for Registration Expenses in the event that no Registration Statement
is declared effective, such Holders are nonetheless entitled to have their
shares registered pursuant to a "shelf registration" for the time period set
forth in SECTION 3(d) above.
(h) The Company recognizes that money damages may be inadequate to
compensate the Holders for a breach by the Company of its obligations under
this Section, and the Company agrees that in the event of such a breach the
Holder may apply for an injunction of specific performance or the granting of
such other equitable remedies as may be awarded by a court of competent
jurisdiction in order to afford the Holder the benefits of this SECTION 3 and
that the Company shall not object to such application, entry of such
injunction or granting of such other equitable remedies on the grounds that
money damages will be sufficient to compensate the Holder.
SECTION 4. PIGGYBACK REGISTRATION. (a) Except for a demand
registration as set forth in Section 3 and subject to SECTIONS 5 AND 6, if at
any time the Company proposes to register any offering of shares of its
common stock under the Securities Act, and if such registration is to be on a
form of the Commission that may include, or is at any time amended or changed
to such a form that may include the shares of the Company's capital stock
(other than (i) a registration on Form S-4 or S-8 or any successor form to
such Forms, (ii) in connection with merger, acquisitions, exchange offers or
comparable transactions, or (iii) any registration of securities as it
relates to an offering and sale to management of the Company pursuant to any
employee stock plan or other employee benefit plan arrangement), the Company
will at any such time give written notice (a "PIGGYBACK NOTICE") to all
Holders of Common Stock of its intention so to do at least thirty (30) days
prior to the filing of said registration statement.
(b) If the managing underwriter participating in the sale and
distribution of the Company's securities covered by said
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registration statement agrees that a certain number of shares of Common Stock
(the "PERMISSIBLE SECONDARY SHARES") may be included in the offering covered
by the registration statement, the Company's Piggyback Notice shall afford
the Holders of Common Stock an opportunity to elect to include in such
registration the Permissible Secondary Shares owned by them. Each Holder of
Common Stock shall have twenty (20) days after receipt of the Company's
Piggyback Notice to notify the Company in writing of the number of shares of
Common Stock (the "ELECTED SHARES") which such Holder of Common Stock elects
to include in the offering and such Elected Shares shall be included in the
offering. If the aggregate number of Elected Shares that the Holders thereof
desire to include in such filing exceeds the number of Permissible Secondary
Shares, then each Holder of Common Stock electing to participate in such
Piggyback Registration shall be subject to a reduction in the number of
shares included in such registration on a pro-rata basis. Such managing
underwriter may increase or decrease the number of Permissible Secondary
Shares at any time until all shares included in such registration shall have
been sold by such underwriters.
SECTION 5. OPINION OF COUNSEL. The Company shall have no
obligation under SECTIONS 3 AND 4 hereof to register any shares if the
Company shall deliver to the requesting Holders an opinion of counsel in form
and substance reasonably satisfactory to such Holders and their counsel to
the effect that the proposed sale or disposition of all of the shares for
which registration was requested does not require registration under the
Securities Act for a sale or disposition in a single public transaction and
the resale of such shares to any purchaser does not require registration
under the Securities Act. The Company hereby agrees to indemnify the Holders
against, and to hold them harmless from, all Losses arising from violations
of law, that they may incur under the Securities Act or otherwise by reason
of them proceeding in accordance with such opinion of counsel, other than (i)
any such Losses that arise in connection with any willful misconduct on the
part of such Holders or (ii) matters for which the Holders are obligated to
indemnify the Company for under SECTION 8 hereof.
SECTION 6. REGISTRATION PROCEDURES. If and whenever the Company
is required by the provisions of this Agreement to use its best efforts to
effect the registration of any of the Securities under the Securities Act,
the Company will (except as otherwise provided in this Agreement), as
expeditiously as possible:
(a) cooperate with any underwriters for, and the
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sellers of, such shares, and will enter into a usual and customary
underwriting and confidentiality agreements with respect thereto and take all
such other reasonable actions as are necessary or advisable to permit,
expedite and facilitate the disposition of such shares in the manner
contemplated by the related registration statement in each case to the same
extent as if all the securities then being offered were for the account of
the Company and the Company will provide to any Holder, any underwriter
participating in any distribution thereof pursuant to a registration
statement, and any attorney, accountant or other agent retained by any Holder
or underwriter, reasonable access to appropriate Company officers and
employees to answer questions and to supply information reasonably requested
by any such Holder, underwriter, attorney, accountant or agent in connection
with such registration statement, so long as such person shall have executed
a confidentiality agreement in form reasonably satisfactory to the Company;
(b) furnish or cause to be furnished to each Holder, addressed to
such Holder, a copy of the opinion of counsel for the Company, and a copy of
the "comfort" letter signed by the independent public accountants who have
certified the Company's financial statements included in the registration
statement, delivered on the closing date to the underwriters of such shares;
(c) 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; and 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 for the time period required
pursuant to this Agreement 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 whenever the Holders shall
desire to sell or otherwise dispose of the same; PROVIDED that no such
registration statement will be filed by the Company until counsel for the
Holders shall have had a reasonable opportunity to review the same and to
exercise their rights under clause (a) above with respect thereto and no
amendment to any such registration statement naming such Holders as selling
shareholders shall be filed with the Commission until such Holders shall have
had at least seven days to review such registration statement as originally
filed and theretofore amended, to exercise their rights under clause (a)
above and to approve or disapprove any portion of such registration statement
describing or referring to such Holders;
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(d) furnish to each Holder such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents (excluding marketing and other
selling related materials), as such Holder may reasonably request in order to
facilitate the public sale or other disposition of the securities owned by
such Holder;
(e) 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 each Holder shall request, except that the
Company shall not for any such purpose be required to qualify to do business
as a foreign corporation in any jurisdiction wherein it is not so qualified
or to file therein any general consent to service;
(f) in the event of the issuance of any stop order suspending the
effectiveness of any registration statement or of any order suspending or
preventing the use of any prospectus or suspending the qualification of any
shares for sale in any jurisdiction, use its best efforts promptly to obtain
its withdrawal;
(g) 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, an earnings statement covering
the period of at least twelve months, beginning with the first fiscal quarter
beginning after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act; and
(h) list such securities on any securities exchange on which any
stock of the Company is then listed, if the listing of such securities is
then permitted under the rules of such exchange;
PROVIDED, HOWEVER, that notwithstanding any other provision of this
Agreement, the Company shall not be required to maintain the effectiveness of
any registration statement for a period in excess of two years (plus any
period during which the effectiveness of such registration has been
suspended), except that from time to time after a transfer of shares pursuant
to a registration statement the Company will file all reports required to be
filed by it under the Securities Act and the Exchange Act, and will take such
further action as any Holder may reasonably request, all to the extent
required to enable the Holder to sell shares pursuant to Rule 144 promulgated
under the Securities Act (or any successor thereto). Upon written request,
the Company
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will promptly deliver to any Holder a written statement as to whether it has
complied with such requirements at any time after it has become subject to
such requirements.
SECTION 7. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of its
obligations in connection with any registration of a Holder's shares under
this Agreement including, without limitation, printing expenses, fees and
disbursements of counsel for the Company, fees of the National Association of
Securities Dealers, Inc. in connection with its review of any offering
contemplated in any registration statement and expenses of any special audits
which shall be necessary to comply with governmental requirements in
connection with any such registration shall be paid by the Company. In
connection with each registration the Company shall pay (i) all registration
and filing fees for the Holders' shares under Federal and state securities
laws, (ii) expenses of complying with the securities or blue sky laws of any
jurisdictions pursuant to SECTION 6(e) hereof, and (iii) reasonable fees and
expenses of no more than one counsel for the Holders (collectively, the
"REGISTRATION EXPENSES"). The underwriting discount paid to the underwriters
in connection with any registration shall be paid by the Company, the Holders
and any other selling securities holders pro rata based on the ratio that the
gross proceeds of the securities sold by each such participant bears to the
aggregate gross proceeds of the underwritten securities sold by the Company,
the Holders and such other securities holders; PROVIDED, HOWEVER, that the
Company shall have no obligation to pay any other fees to, or reimburse
expenses of, the underwriters hereunder.
(b) It shall be a condition precedent to the obligation of the
Company to take any action pursuant to this Agreement in respect of the
shares which are to be registered at the request of any Holder that such
Holder shall furnish to the Company such 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 to be taken by the Company.
(c) The Company agrees that it will not file a registration
statement under the Securities Act, either for securities held by any of the
Company's securityholders, other than the Holders, or for securities newly
issued by the Company, until thirty (30) days after the effective date of any
registration statement filed pursuant to the request of Holders made under
SECTION 3 hereof.
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SECTION 8. INDEMNIFICATION.
(a) In the event of any registration of any of its securities
under the Securities Act pursuant to this Agreement, to the extent permitted
by law, the Company shall indemnify and hold harmless the Holders, such
Holders' directors, officers, employees and agents, and each other person, if
any, who controls any such Holder within the meaning of the Securities Act (a
"CONTROLLING PERSON"), against any Losses, 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 (or actions in respect thereof) arise out of or are
based upon (i) any alleged untrue statement of any material fact contained,
on the effective date thereof, in any registration statement under which such
securities were registered under the Securities Act, or in 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 each such Holder or such
director, officer, employee, agent or Controlling Person for any legal or any
other expenses reasonably incurred by such Holder or such director, officer,
employee, agent or Controlling Person in connection with investigating or
defending any Loss; PROVIDED, HOWEVER, that the Company shall not be liable
in any such case to the extent that any such Loss 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 through an instrument duly executed by such Holder
specifically for use therein. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Holders or
such director, officer, employee, agent or Controlling Person, and shall
survive the transfer of shares by such Holder.
(b) To the extent permitted by law, each Holder of any shares shall,
by acceptance thereof, indemnify and hold harmless the Company, its directors,
officers, employees and agents and each other person, if any, who controls the
Company against any Losses, joint or several, to which the Company or any such
director, officer, employee, agent or any such person may become subject under
the Securities Act or any other statute or at common law, insofar as such Losses
(or actions in respect thereof) arise out of or are based upon (i) any untrue
statement or omission of any material fact contained, on the effective date
thereof, in any registration statement under which such securities were
registered under the Securities Act, or in any
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preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereto, or (ii) any omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent that such untrue statement or omission was contained in written
information furnished to the Company through an instrument duly executed by
such Holder specifically for use therein, and shall reimburse the Company or
such director, officer, employee, agent or other person for any legal or any
other expenses reasonably incurred in connection with investigating or
defending any such Loss.
(c) Indemnification similar to that specified in SECTIONS 8(A) AND
8(b) hereof shall be given by the Company and each Holder of shares included
in a registration statement (with such modifications as shall be appropriate)
to any underwriter with respect to any required registration or other
qualification of such shares under any federal or state law or regulation of
governmental authority. The indemnity and expense reimbursement obligations
of the Company and the Holders under SECTIONS 8(a) AND 8(b) hereof shall be
in addition to any liability the Company and the Holders may otherwise have.
(d) If any action or proceeding (including any governmental
investigation or inquiry) shall be brought or any claim shall be asserted
against any person entitled to indemnity hereunder (an "INDEMNIFIED PARTY"),
such Indemnified Party shall promptly notify the party from which such
indemnity is sought (the "INDEMNIFYING PARTY") in writing, and the
Indemnifying Party shall assume the defense thereof, including the employment
of counsel reasonably satisfactory to the Indemnified Party and the payment
of all reasonable fees and expenses incurred in connection with the defense
thereof. Any such fees and expenses borne by the Indemnified Party
(including any reasonable fees and expenses incurred in connection with
investigating or preparing to defend such action or proceeding) shall be paid
to the Indemnified Party, as incurred, within fifteen days of written notice
thereof to the Indemnifying Party (regardless of whether it is ultimately
determined that an Indemnified Party is not entitled to indemnification
hereunder), PROVIDED, that such Indemnified Party shall first undertake to
reimburse all such fees and expenses to the extent it is judicially
determined that such Indemnified Party is not entitled to indemnification
hereunder. Any such Indemnified Party shall have the right to employ
separate counsel in any such action, claim or proceeding and to participate
in the defense thereof, but the fees and expenses of such counsel shall be
the expenses of such Indemnified Party unless (i) the Indemnifying Party has
agreed to pay such fees and expenses or (ii) the Indemnifying Party shall
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have failed to promptly assume the defense of such action, claim or
proceeding or (iii) the named parties to any such action, claim or proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party, and such Indemnified Party shall have been advised by
counsel that there may be one or more legal defenses available to it which
are different from or in addition to those available to the Indemnifying
Party and that the assertion of such defenses would create a conflict of
interest such that counsel employed by the Indemnifying Party could not
faithfully represent the Indemnified Party (in which case, if such
Indemnified Party notifies the Indemnifying Party in writing that it elects
to employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense of such
action, claim or proceeding on behalf of such Indemnified Party, it being
understood, however, that the Indemnifying Party shall not, in connection
with any one such action, claim or proceeding or separate but substantially
similar or related actions, claims or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all such
indemnified parties, unless in the reasonable judgment of such Indemnified
Party a conflict of interest may exist between such Indemnified Party and any
other of such indemnified parties with respect to such action, claim or
proceeding, in which event the Indemnifying Party shall be obligated to pay
the fees and expenses of such additional counsel or counsels). The
Indemnifying Party shall not be liable for any settlement of any such action
or proceeding effected without its written consent, which consent shall not
be unreasonably withheld.
(e) If the indemnification provided for in this SECTION 8 is
unavailable to an Indemnified Party (other than by reason of exceptions
provided in those Sections) in respect of any Losses, then each applicable
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, in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and indemnified parties in
connection with the actions, statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. The relative
fault of such Indemnifying Party and the Indemnified Party shall be
determined by reference to, among other things, whether any action in
question, including any untrue statement or alleged untrue statement of a
material fact or omission or alleged omission of a material fact, has been
taken or made by, or relates to information supplied by, such
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Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a
result of any Losses shall be deemed to include, subject to the limitations
set forth in this paragraph any legal or other fees or expenses reasonably
incurred by such party in connection with any action, suit, claim,
investigation or proceeding. The parties hereto agree that it would not be
just and equitable if contribution pursuant to this paragraph were determined
by pro rata allocation or by any other method of allocation which does not
take into account the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions of this Section, if a
Holder is an Indemnifying Party it shall not be required to contribute any
amount in excess of the net proceeds (after giving effect to the payment of
underwriter's discounts and other fees or expenses, if any) received by the
Holder in connection with such public offering. 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.
SECTION 9. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register shares pursuant to this Agreement may be assigned
(but only with all related obligations) by a Holder to a transferee or
assignee of such securities who, after such assignment or transfer, holds at
least 2,000 shares of Preferred Stock or 10,000 shares of Common Stock issued
upon redemption or liquidation of the Preferred Stock (subject to appropriate
adjustment for stock splits, stock dividends, combinations and other
recapitalization), provided: (a) the Company is, within a reasonable time
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 Agreement, including without limitation the provisions of SECTION 10
below; 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 Securities Act. For the
purposes of determining the number of shares held by a transferee or
assignee, the holdings of transferees and assignees of a partnership who are
partners or retired partners of such partnership (including spouses and
ancestors, lineal descendants and siblings of such partners or spouses who
acquire shares by gift, will or intestate succession) shall be aggregated
together and with the partnership. Notwithstanding the foregoing, OCM may
assign its rights hereunder at any time in connection with a
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liquidating distribution of assets to its partners.
SECTION 10. "MARKET STAND-OFF" AGREEMENT. Each Holder hereby
agrees that, during the period of duration specified by the Company and a
managing underwriter of Common Stock or other securities of the Company,
following the effective date of a registration statement of the Company filed
under the Securities Act, it shall not, to the extent requested by the
Company and such underwriter, directly or indirectly sell, offer to sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase or otherwise transfer or dispose of (other than to donees
who agree to be similarly bound) any securities of the Company held by it at
any time during such period except Securities included in such registration;
PROVIDED, HOWEVER, that:
(a) such agreement shall be applicable only to registration
statements of the Company that cover Securities to be sold on its behalf, or
on behalf of Holders pursuant to demand registration rights hereunder, to the
public in an underwritten offering; and
(b) such market stand-off time period shall not exceed 120 days.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the shares (and the shares or
securities of every other person subject to the foregoing restriction) until
the end of such period.
Notwithstanding the foregoing, the obligations described in this
Section shall not apply to (i) transfers by OCM Holders in connection with a
private placement pursuant to exemptions from the registration requirements
of the Securities Act provided by Section 4(2) thereof and Regulation D
thereunder, (ii) transfers by OCM to an OCM Affiliate in connection with an
in-kind distribution or (iii) transfers by WES&S to a WES&S Affiliate.
SECTION 11. MISCELLANEOUS.
(a) NOTICES. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only
if delivered personally or by facsimile transmission or mailed (first class
postage prepaid) to the parties at the following addresses or facsimile
numbers:
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(i) if to the Company, at
13952 Denver West Parkway
Golden, Colorado 80401
Facsimile No.: (303) 704-4410
Attention: Roger E. Payton
with copies to:
Milbank, Tweed, Hadley & McCloy
601 S. Figueroa St.
Suite 3100
Los Angeles, CA 90017
Facsimile No.: (213) 629-5063
Attention: Eric H. Schunk
(i) if to any other person who is the registered holder of any
Securities to the address for the purpose of such holder as it appears in
the stock ledger of the Company
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number
as provided in this Section, be deemed given upon receipt, and (iii) if
delivered by mail in the manner described above to the address as provided in
this Section, be deemed given upon receipt (in each case regardless of
whether such notice, request or other communication is received by any other
Person to whom a copy of such notice, request or other communication is to be
delivered pursuant to this Section). Any party from time to time may change
its address, facsimile number or other information for the purpose of notices
to that party by giving notice specifying such change to the other party
hereto.
(b) AMENDMENT. No change in or modification of this Agreement
shall be valid unless the same shall be in writing and signed by the Company
and the Holders of at least 80% of the Securities that are entitled to
registration rights hereunder.
(c) ASSIGNMENT. This Agreement shall inure to the benefit of and
be binding upon the successors and permitted assigns of the Holders. This
Agreement may not be assigned by the Company without the prior written
consent of the Holders.
(d) WAIVER. No failure or delay on the part of the parties or any
of them in exercising any right, power or privilege hereunder, nor any course
of dealing between the
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parties or any of them shall operate as a waiver of any such right, power or
privilege nor shall any single or partial exercise of any such right, power
or privilege preclude the simultaneous or later exercise of any other right,
power or privilege. The rights and remedies herein expressly provided are
cumulative and are not exclusive of any rights or remedies which the parties
or any of them would otherwise have. No notice to or demand on the Company
in any case shall entitle the Company to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights
of the other parties or any of them to take any other or further action in
any circumstances without notice or demand.
(e) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
(f) GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
California.
(g) FILING. A copy of this Agreement and of all amendments hereto
shall be filed at the principal office of the Company.
(h) TERMINATION. This Agreement may be terminated at any time by
an instrument in writing signed by the Company and each Holder.
(i) BENEFIT AND BINDING EFFECT. This Agreement shall be binding
upon and inure to the benefit of the parties and their executors,
administrators, personal representatives, heirs, successors and assigns.
(j) SEVERABILITY. In the event that any part of this Agreement
shall be held to be invalid or unenforceable, the remaining parts hereof
shall nevertheless continue to be valid and enforceable as though the invalid
portions were not a part hereof.
(k) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(l) ATTORNEYS' FEES. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the successful party shall be entitled to
recover reasonable attorneys' fees
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(including any fees incurred in any appeal) in addition to its costs and
expenses and any other available remedy.
(m) EQUITABLE RELIEF. The parties hereto agree and declare that
legal remedies may be inadequate to enforce the provisions of this Agreement
and that equitable relief, including specific performance and injunctive
relief, may be used to enforce such provisions.
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IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the day and year first above written.
The Company: GEOLOGISTICS CORPORATION
By: ______________________________
Roger E. Payton
President and
Chief Executive Officer
Holders: OCM PRINCIPAL OPPORTUNITIES FUND, L.P.
By: OAKTREE CAPITAL MANAGEMENT, LLC,
its General Partner
By: _____________________________
Stephen A. Kaplan
Principal
By: _____________________________
Vincent J. Cebula
Senior Vice President
LOGISTICAL SIMON, L.L.C.
By: WESINVEST, Inc.
its Manager
By: ____________________________
Michael B. Lenard
President