EXHIBIT 99.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of August 22, 2002 by and among URS CORPORATION, a Delaware
corporation (the "CORPORATION"), ▇▇▇▇ Strategic Partners, L.P. ("▇▇▇▇
STRATEGIC"), ▇▇▇▇ Capital Partners, L.P. ("▇▇▇▇ CAPITAL" and, together with ▇▇▇▇
Strategic, "▇▇▇▇") and CARLYLE-EG&G, L.L.C. ("EG&G") and EG&G Technical Services
Holdings, L.L.C. (the "HOLDER REPRESENTATIVE" and together with EG&G,
"CARLYLE").
WHEREAS, the Corporation and Affiliates of ▇▇▇▇ were party to that
certain Registration Rights Agreement dated February 21, 1990, and whereas the
Corporation and Affiliates of ▇▇▇▇ were parties to that certain Registration
Rights Agreement dated June 9, 1999;
WHEREAS, the Corporation and the Holder Representative are parties to
an Agreement and Plan of Merger, dated as of July 16, 2002 pursuant to which the
Corporation is issuing Common Stock and Series D Senior Convertible
Participating Preferred Stock to Carlyle and other individuals;
WHEREAS, in order to induce Carlyle to consummate the transactions
contemplated by the Agreement and Plan of Merger, the Corporation and ▇▇▇▇ have
agreed to enter into this Agreement to provide the registration rights set forth
in this Agreement for the benefit of ▇▇▇▇, ▇▇▇▇▇▇▇ and their direct and indirect
transferees;
WHEREAS, the execution and delivery of this Agreement is a condition to
Carlyle's obligations pursuant to the Agreement and Plan of Merger.
NOW, THEREFORE, in consideration of the premises and of the respective
representations, warranties, covenants, agreements and conditions contained
herein, each of the Corporation, ▇▇▇▇ and Carlyle (together "PARTIES") agree as
follows:
SECTION 1. DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following respective meanings:
AFFILIATE: An affiliate of any specified person shall mean any other
person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person. For the purposes of this
definition, "CONTROL," when used with respect to any person, means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise and
the terms "AFFILIATED," "CONTROLLING" and "CONTROLLED" have meanings correlative
to the foregoing.
▇▇▇▇ CUTBACK PERCENTAGE: 50%.
▇▇▇▇ HOLDERS: ▇▇▇▇, any Affiliate of ▇▇▇▇ or account for which ▇▇▇▇ (or
its Affiliates) has investment discretion which is a holder of Registrable
Securities as of the date of this Agreement and any other person or entity to
whom any of the foregoing may transfer the rights described in this Agreement.
1.
BUSINESS DAY: Each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which banking institutions in New York, New York are authorized
or obligated by law or executive order to close.
CARLYLE CUTBACK PERCENTAGE: 50%.
CARLYLE HOLDERS: Carlyle, the other holders of Registrable Securities
other than the ▇▇▇▇ Holders and any other person or entity to whom any of the
foregoing may transfer the rights described in this Agreement.
CLOSING DATE: The date of the Closing, as such term is defined in the
Agreement and Plan of Merger.
COMMON STOCK: The common stock, par value $0.01 per share, of the
Corporation or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation and which
are not subject to redemption by the Corporation.
CORPORATION: URS Corporation, a Delaware corporation, and any successor
entity thereto.
CUTBACK: Cutback is defined below in Section 2(f).
DISTRIBUTEE: Any person that is a member, stockholder or partner of any
of the Holders or any person that is a member, stockholder or partner of a
Distributee to which Registrable Securities are transferred or distributed by a
Holder or Distributee.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the SEC thereunder.
FORM S-1: Such form under the Securities Act in effect on the date
hereof or such registration form under the Securities Act subsequently adopted
by the SEC which replaces such form.
FORM S-3: Such form under the Securities Act in effect on the date
hereof or such registration form under the Securities Act subsequently adopted
by the SEC which replaces such form.
FORM S-4: Such form under the Securities Act in effect on the date
hereof or such registration form under the Securities Act subsequently adopted
by the SEC which replaces such form.
HOLDER: ▇▇▇▇ Holders, Carlyle Holders and each holder of any
Registrable Securities, including an Affiliate, a Distributee or other
successors, assigns and transferees of a Holder or a Holder that has received
Registrable Securities pursuant to Section 9(f) and agrees to be bound by the
terms of this Agreement.
2.
NASD: The National Association of Securities Dealers.
NYSE: The New York Stock Exchange.
PERSON: Any natural person, firm, partnership, association,
corporation, company, trust, business trust, governmental entity or other
entity.
PROSPECTUS: The prospectus included in the Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed in reliance upon Rule 430A), as
amended or supplemented by any prospectus supplement, with respect to the resale
of any of the Registrable Securities covered by such Registration Statement, and
all other amendments and supplements to any such prospectus, including
post-effective amendments, and all materials incorporated by reference or deemed
to be incorporated by reference, if any, in such prospectus.
REGISTRABLE SECURITIES: Registrable Securities include: (a) 1,856,440
shares of Common Stock held through partnerships or managed accounts for which
▇▇▇▇ Capital is the General Partner or Investment Advisor; (b) 5,845,104 shares
of Common Stock issued to ▇▇▇▇ upon conversion of all outstanding shares of
Series B Exchangeable Convertible Preferred Stock issued under the Securities
Purchase Agreement, dated June 9, 1999; (c) Common Stock issued pursuant to the
Merger Agreement; (d) Common Stock issuable upon conversion of the Corporation's
Series D Senior Convertible Participating Preferred Stock (the "SERIES D
PREFERRED STOCK"); (e) in the event such shares of Series D Preferred Stock are
converted into Series E Senior Cumulative Convertible Participating Preferred
Stock (the "SERIES E PREFERRED STOCK"), such shares of Series E Preferred Stock;
(f) Common Stock issuable upon conversion of the Series E Preferred Stock; and
(g) any other securities issued or issuable with respect to any of the
securities described in the foregoing clauses (a) through (f) upon any
conversion or exchange thereof, by way of stock dividend or other distribution,
stock split or reverse stock split of in connection with a combination of
shares, recapitalization, merger, consolidation, exchange offer or other
reorganization.
As to any particular Registrable Securities once issued, such
securities shall cease to be Registrable Securities when: (A) a Registration
Statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such Registration Statement; (B) such securities shall
have been distributed to the public in reliance upon Rule 144; (C) such
securities shall have been acquired by the Corporation; or (D) such securities
shall have been sold in a private transaction in which the transferor's rights
under this Agreement were not assigned.
REGISTRATION EXPENSES: All fees and expenses incident to the
performance of or compliance with the provisions of this Agreement, whether or
not any Registration Statement is filed or becomes effective, including without
limitation, all (a) registration and filing fees (including without limitation,
(i) fees with respect to filings required to be made with the NASD in connection
with an underwritten offering, (ii) fees and expenses of compliance with state
securities or blue sky laws and (iii) fees and other expenses associated with
admitting for trading on the NYSE or any other applicable exchange or automated
dealer system); (b) printing expenses; (c) fees and disbursements of all
independent certified public accountants (including,
3.
without limitation, the reasonable expenses of any special audit and "cold
comfort" letters required by or incident to such performance); (d) the fees and
expenses of any "qualified independent underwriter" or other independent
appraiser participating in an offering pursuant to Rule 2720 of the NASD Rules
of Conduct; (e) fees and expenses of all attorneys, advisers, appraisers and
other persons retained by the Corporation or any Subsidiary of the Corporation;
(f) internal expenses of the Corporation and its Subsidiaries; (g) the expenses
of any annual audit; (h) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, securities
sales agreements, indentures and any other documents necessary in order to
comply with this agreement; (i) if any of the ▇▇▇▇ Holders are selling
Registrable Securities in such registration, the reasonable out-of-pocket
expenses and, as to in-house counsel, allocated costs of the ▇▇▇▇ Holders of
Registrable Securities being registered in such registration incurred therewith
including, without limitation, the reasonable fees and disbursements of not more
than one outside counsel and one in-house counsel (who may be employed by an
Affiliate of a Holder) for the ▇▇▇▇ Holders chosen by the ▇▇▇▇ Holders holding a
majority of the Registrable Securities of ▇▇▇▇ Holders to be included in such
Registration Statement; and (j) if any of the Carlyle Holders are selling
Registrable Securities in such registration, the reasonable out-of-pocket
expenses and, as to in-house counsel, allocated costs of the Carlyle Holders of
the Registrable Securities being registered in such registration incurred
therewith including, without limitation, the reasonable fees and disbursements
of not more than one outside counsel and one in-house counsel (who may be
employed by an Affiliate of a Holder) for the Carlyle Holders chosen by the
Carlyle Holders holding a majority of the Registrable Securities of Carlyle
Holders to be included in such Registration Statement. "REGISTRATION EXPENSES"
shall not include any underwriting discounts or commissions or any transfer
taxes payable in respect of the sale of Registrable Securities, which such
expenses shall be paid or borne by the Holders thereof, nor shall "REGISTRATION
EXPENSES" include any fees or expenses incurred by or on behalf of any Holder
who, without cause, either withdraws a request for registration or withdraws
from a registration.
REGISTRATION STATEMENT: Any registration statement of the Corporation
filed with the SEC pursuant to the Securities Act (which form shall be available
for the sale of the Registrable Securities in accordance with the intended
method or methods of distribution thereof and shall include all financial
statements required by the SEC to be filed therewith) that covers the resale of
the Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement or Prospectus (including pre- and post-effective amendments), all
exhibits thereto, and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such registration statement.
REQUESTING HOLDER: Any Holder that initiates a request for registration
hereunder.
RULE 144: Rule 144 promulgated by the SEC pursuant to the Securities
Act, as such rule may be amended from time to time, or any successor rule or
regulation.
RULE 144A: Rule 144A promulgated by the SEC pursuant to the Securities
Act, as such rule may be amended from time to time, or any successor rule or
regulation.
RULE 415: Rule 415 promulgated by the SEC pursuant to the Securities
Act, as such rule may be amended from time to time, or any successor rule or
regulation.
4.
RULE 430A: Rule 430A promulgated by the SEC pursuant to the Securities
Act, as such rule may be amended from time to time, or any successor rule or
regulation.
SEC: The Securities and Exchange Commission, or any successor
governmental agency or authority thereto.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
SPECIAL REGISTRATION: The registration of shares of equity securities
and/or options or other rights in respect thereof to be offered solely to or by
directors, members of management, employees, consultants or sales agents,
distributors or similar representatives of the Corporation or its direct or
indirect Subsidiaries, solely on Form S-8 or any successor form.
SUBSIDIARY: With respect to any Person, any corporation or Person, a
majority of the outstanding voting stock or other equity interests of which is
held, directly or indirectly, by that Person.
SECTION 2. DEMAND REGISTRATION.
(a) REQUESTS BY ▇▇▇▇ HOLDER. Subject to the provisions of
Section 2(c)(ii), ▇▇▇▇ Holders holding not less than 50% of the then-outstanding
Registrable Securities held by all ▇▇▇▇ Holders shall have the right to make
written requests that the Corporation effect registrations under the Securities
Act of all or part of the Registrable Securities of such ▇▇▇▇ Holders, which
requests shall specify the intended method of disposition thereof by such ▇▇▇▇
Holders, including whether the registration requested is for an underwritten
offering. For a registration to be underwritten, Requesting Holders holding not
less than 50% of the Registrable Securities held by all Requesting Holders must
so request. The Corporation shall not be required to effect more than four
registrations under this Section 2(a).
(b) REQUESTS BY ▇▇▇▇▇▇▇ ▇▇▇▇▇▇. Subject to the provisions of
Section 2(c)(ii), Carlyle Holders holding not less than 50% of the
then-outstanding Registrable Securities held by all Carlyle Holders shall have
the right to make written requests that the Corporation effect registrations
under the Securities Act of all or part of the Registrable Securities of such
Carlyle Holders, which requests shall specify the intended method of disposition
thereof by such Carlyle Holders, including whether the registration requested is
for an underwritten offering. For a registration to be underwritten, Requesting
Holders holding not less than 50% of the Registrable Securities held by all
Requesting Holders must so request. The Corporation shall not be required to
effect more than three registrations under this Section 2(b).
(c) OBLIGATION TO EFFECT REGISTRATION.
(i) Within 10 business days after receipt by the
Corporation of any request for registration pursuant to Section 2(a) or 2(b),
the Corporation shall give written notice of such requested registration to all
Holders, and as expeditiously as possible will use its best efforts to effect
the registration under the Securities Act of:
5.
(1) the Registrable Securities which the
Corporation has been so requested to register pursuant to Section 2(a) or 2(b);
and
(2) all other Registrable Securities which
the Corporation has been requested to register by any other Holders thereof by
written request given to the Corporation within 10 days after the Corporation
has given such written notice.
(ii) The Corporation's obligations under Sections
2(a) and 2(b) shall be subject to the following limitations:
(1) the Corporation shall not be required to
effect a registration during the period starting with the date of filing of, and
ending on the date 180 days following the effective date of, the registration
statement pertaining to a public offering by the Corporation so long as the
Holders are permitted to register and sell in such offering all such Registrable
Securities as they have requested be included in such offering without cutback
under Section 2(f); provided, that, (i) the Corporation may not decline to
register shares pursuant to this clause (1) more than once every two years (such
time period to commence upon the expiration of the end of the 180-day period
referred to above) and (ii) the Corporation may not decline to register shares
pursuant to this clause (1) at any time prior to six (6) months after the date
hereof unless the Corporation is effecting such registration in order to
refinance the Bridge Loans (as defined in the Commitment Letters (as defined in
the Merger Agreement)); and
(2) the Corporation shall not be required to
effect a registration on Form S-1 if it has filed and has maintained an
effective "shelf' Registration Statement on Form S-3 pursuant to Section 4(d)
and such Form S-3 is effective and permitted to be used by the Requesting
Holders to sell all of the Registrable Securities such Requesting Holders wish
to sell.
(d) EFFECTIVE REGISTRATION STATEMENT. A registration requested
pursuant to Section 2(a) or 2(b) shall not be deemed to have been effected
unless it is declared effective by the SEC and remains effective for the period
specified in Section 5(b). Notwithstanding the preceding sentence, a
registration requested pursuant to Section 2(a) or 2(b) that does not become
effective after the Corporation has filed a Registration Statement with respect
thereto by reason of the refusal to proceed of the Requesting Holders without
cause, or by reason of a request by a majority of the Requesting Holders
participating in such registration that such registration be withdrawn, shall be
deemed to have been effected by the Corporation at the request of such
Requesting Holders.
(e) INCLUSION OF OTHER SECURITIES. Notwithstanding any other
provision of this Section 2:
(i) The Corporation may, subject to the remainder of
this Section 2(e) and subject to Section 2(f), elect to include in any
Registration Statement made pursuant to Section 2(a) or 2(b), authorized but
unissued shares of Common Stock or shares of Common Stock held as treasury
stock; and
6.
(ii) The Corporation shall not register securities
(other than Registrable Securities) for sale for the account of any Person
(other than the Corporation or the Holders) in any registration requested
pursuant to Section 2(a) or 2(b).
(f) CUTBACKS AND ALLOCATION OF OPPORTUNITY TO REGISTER
SECURITIES. If any Registration Statement made pursuant to Section 2(a) or 2(b)
involves an underwritten offering and if the underwriter advises the Requesting
Holder in writing that marketing factors require a limitation of the number of
shares to be underwritten (a "CUTBACK"), then the Requesting Holder shall so
advise the Corporation which shall advise all Holders of Registrable Securities
which would otherwise be underwritten pursuant thereto, and the number of shares
of Registrable Securities that may be included in the underwriting shall be
allocated among all participating Holders thereof as follows: (i) the ▇▇▇▇
Holders as a group shall be entitled to the ▇▇▇▇ Cutback Percentage of the
Registrable Securities actually sold in the offering and (ii) the Carlyle
Holders as a group shall be entitled to sell the Carlyle Cutback Percentage of
the Registrable Securities actually sold in the offering; provided, however,
that, to the extent that the number of shares the ▇▇▇▇ Holders or the Carlyle
Holders, as a group, are entitled to register pursuant to this sentence exceeds
the number that such group of holders actually seeks to register, then such
excess shall be added to the number of shares that the Carlyle Holders or the
▇▇▇▇ Holders, respectively, shall be entitled to register.
SECTION 3. REGISTRATION BY THE CORPORATION.
(a) PROCEDURE. If the Corporation at any time proposes to
register any of its Common Stock under the Securities Act (other than a
Registration on Form S-4 with respect to any merger, consolidation or
acquisition, a demand registration pursuant to Section 2(a) or 2(b) or pursuant
to a Special Registration), whether or not for sale for its own account, and the
registration form to be used may be used for the registration of Registrable
Securities, it shall each such time give prompt written notice to all Holders of
Registrable Securities. Upon the written request of any Holder of Registrable
Securities given to the Corporation within 10 business days after the
Corporation has given any such notice, the Corporation will use its best efforts
to effect the registration under the Securities Act of all Registrable
Securities requested by the Holders thereof to be included registered, provided
that:
(i) if, at any time after giving written notice of
its intention to register any securities and prior to the effective date of the
Registration Statement filed in connection with such registration, the
Corporation shall determine for any reason not to register such securities, the
Corporation may, at its election, give written notice of such determination to
each Holder that was previously notified of such registration and, thereupon,
shall not register any securities (including Registrable Securities) in
connection with such registration (but shall nevertheless pay the Registration
Expenses in connection therewith), without prejudice, however, to the rights of
any Holders to request that a registration be effected under Section 2(a) or
2(b).
(b) CUTBACKS AND ALLOCATION OF OPPORTUNITY TO REGISTER
SECURITIES. If any Registration Statement made pursuant to this Section 3
involves an underwritten offering and if the underwriter advises the Corporation
in writing that marketing factors require a Cutback, then the Corporation shall
advise the Holders of Registrable Securities which would otherwise be
7.
underwritten pursuant hereto, and the number of shares of Registrable Securities
that may be included in the underwriting shall be allocated among all
participating Holders thereof and the Corporation as follows:
(i) The Corporation shall be entitled to sell 80% of
the Registrable Securities actually sold in the offering; and;
(ii) The Requesting Holders shall be entitled to sell
20% of the Registrable Securities actually sold in the offering, allocated
according to the ▇▇▇▇ Cutback Percentage and the Carlyle Cutback Percentage;
provided, however, that, to the extent that the number of shares the ▇▇▇▇
Holders or the Carlyle Holders, as a group, are entitled to register pursuant to
this sentence exceeds the number that such group of holders actually seeks to
register, then such excess shall be added to the number of shares that the
Carlyle Holders or the ▇▇▇▇ Holders, respectively, shall be entitled to
register.
(c) No registration effected under this Section 3 shall
relieve the Corporation of its obligation to effect registrations upon request
under Section 2(a) or 2(b). If the offering by the Corporation is not
underwritten, the Corporation shall not be obligated to cause any piggyback
registration under this Section 3 to be underwritten.
SECTION 4. FORM S-3 REGISTRATIONS. In case the Corporation shall
receive from any Holder or Holders of Registrable Securities a written request
or requests that the Corporation effect a registration on Form S-3 or any
similar short-form registration statement and any related qualification or
compliance with respect to all or a part of the Registrable Securities held by
such Holder or Holders, the Corporation will:
(a) promptly give written notice of the proposed registration,
and any related qualification or compliance, to all other Holders of Registrable
Securities; and
(b) as expeditiously as possible, effect such registration and
all such qualifications and compliances as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Holder's or Holders' Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any other
Holder or Holders joining in such request as are specified in a written request
given within 10 days after receipt of such written notice from the Corporation;
provided, however, that the Corporation shall not be obligated to effect any
such registration, qualification or compliance pursuant to this Section 4:
(i) if Form S-3 is not available for such offering by
the Holders;
(ii) if the Holders, together with the holders of any
other securities of the Corporation entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any) at an
aggregate price to the public of less than $5,000,000;
(iii) if within 30 days of receipt of a written
request from any Holder or Holders pursuant to this Section 4, the Corporation
gives notice to such Holder or Holders of the Corporation's bona fide intention
to make a public offering within 90 days; provided, that (i) the Corporation may
only give such notice once in any 12-month period and (ii) the Corporation
8.
may not decline to register shares pursuant to this clause (iii) at any time
prior to six (6) months after the date hereof unless the Corporation is
effecting such registration in order to refinance the Bridge Loans (as defined
in the Commitment Letters (as defined in the Merger Agreement));
(iv) if the Corporation has, within the 90-day period
preceding date of such request, effected a Corporation-initiated registration
(other than a Special Registration); or
(v) in any particular jurisdiction in which the
Corporation would be required to qualify to do business or to execute a general
consent to service of process in effecting such registration, qualification or
compliance.
(c) Subject to the foregoing, the Corporation shall file a
Form S-3 registration statement covering the Registrable Securities and other
securities so requested to be registered as expeditiously as possible after
receipt of the request or requests of the Holders.
(d) If requested and if the Corporation is eligible to file
such Registration Statement on Form S-3, the Registration Statement filed under
this Section 4 shall provide for the sale by the Holders thereof of the
Registrable Securities from time to time on a delayed or a continuous basis
under Rule 415 under the Securities Act.
(e) Registrations effected pursuant to this Section 4 shall
not be counted as demands for registration pursuant to Section 2 or
registrations by the Corporation pursuant to Section 3; provided, however, that
if such registration includes an underwritten offering, it shall constitute a
separate "DEMAND" registration for purposes of Section 2(a) and 2(b).
SECTION 5. REGISTRATION PROCEDURES. The Corporation shall pay all
Registration Expenses in connection with each registration of Registrable
Securities pursuant to this Agreement. If and whenever the Corporation is
required to effect or use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Sections 2, 3 and
4, the Corporation shall:
(a) Furnish to the Holders and the managing underwriters, if
any, copies of all such documents proposed to be filed (excluding, unless
requested, those documents incorporated or deemed to be incorporated by
reference and then only to the Holder who so requested) and use its commercially
reasonable efforts to reflect in each such document, when so filed with the SEC,
such comments as the Holders may reasonably propose. The Corporation shall not
file any such Registration Statement or related Prospectus or any amendments or
supplements thereto (excluding any document that would be incorporated or deemed
incorporated by reference) to which the Holder or the managing underwriters, if
any, shall reasonably object in writing (by hand-delivery, courier guaranteeing
overnight delivery or telecopy) within five Business Days after the receipt of
such documents. Notwithstanding the foregoing, the Corporation shall not be
required to furnish to the Holders or the managing underwriters, if any, any
amendments or supplements to the Registration Statement or Prospectus filed
solely to reflect changes to the Registrable Securities held by any particular
Holder or immaterial revisions to the information contained therein.
(b) Prepare and file with the SEC such amendments, including
post-effective amendments, and supplements to such Registration Statement and
the Prospectus used in
9.
connection therewith and such other documents as may be necessary to keep such
Registration Statement effective, and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement in accordance with the intended method or methods of
disposition by the sellers thereof set forth in such Registration Statement or
Prospectus, as so amended and supplemented, until the earlier of: (i) 60 days
after the effective date of such Registration Statement (720 days in the case of
a Shelf Registration pursuant to Section 4(d)) or (ii) the consummation of the
disposition by the Holders of all the Registrable Securities covered by such
Registration Statement and otherwise comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
Registration Statement.
(c) Notify the Holders and the managing underwriters, if any,
promptly and, if requested by any such person, confirm such notice in writing:
(i) (1) when a Prospectus or any Prospectus
supplement or post-effective amendment is proposed to be filed and (2) with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective;
(ii) of any written comments from the SEC with
respect to any filing and of any request by the SEC or any other Federal or
state governmental authority for amendments or supplements to such Registration
Statement or related Prospectus or for additional information related thereto;
(iii) of the issuance by the SEC, any state
securities commission, any other governmental agency or any court of any stop
order, order or injunction suspending or enjoining the use or effectiveness of
the Registration Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Corporation of any
notification with respect to the suspension of qualification or exemption from
qualification of any of the Registrable Securities for sale in any jurisdiction,
or the initiation or threatening of any proceeding for such purpose;
(v) of the existence of any fact or the happening of
any event during the period of effectiveness that makes any statement of
material fact made in such Registration Statement or related Prospectus untrue
in any material respect, or that requires the making of any changes in such
Registration Statement or Prospectus so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading and that, in the case of the Prospectus,
such Prospectus will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; and
(vi) of the determination by the Corporation that a
post-effective amendment to the Registration Statement will be filed with the
SEC.
10.
(d) Use commercially reasonable efforts to obtain the
withdrawal of any stop order or order enjoining or suspending the use or
effectiveness of a Registration Statement or the lifting of any suspension of
the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by the Requesting Holders, or managing
underwriters, if any, to:
(i) promptly include in a Prospectus supplement or
post-effective amendment such information as the Requesting Holders or managing
underwriters, if any, may reasonably request to be included therein; and
(ii) make all required filings of such Prospectus
supplement or such post-effective amendment as expeditiously as possible after
the Corporation has received notification of the matters to be included in such
Prospectus supplement or post-effective amendment.
(f) Furnish to each Holder who so requests, and each managing
underwriter, if any, without charge, at least one copy of the Registration
Statement and each amendment thereto (but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits,
unless requested in writing by such Holder or any managing underwriter and then
only to the person who so requested).
(g) Deliver to each Holder and the underwriters, if any,
without charge, as many copies of the Prospectus or Prospectuses (including each
form of Prospectus) and each amendment or supplement thereto as such persons may
request; and, unless the Corporation shall have given notice to such Holder or
underwriter pursuant to Section 5(c)(v) hereof, the Corporation hereby consents
to the use of such Prospectus, and each amendment or supplement thereto, by each
of the selling Holders of Registrable Securities and the underwriters, if any,
in connection with the offering and sale of the Registrable Securities covered
by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities,
use all reasonable efforts to register or qualify, or cooperate with the Holders
of Registrable Securities to be sold or tendered or the underwriters, if any,
and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as any Holder or underwriter
reasonably requests in writing, keep each such registration or qualification (or
exemption therefrom) effective during the period the Registration Statement is
required to be kept effective and do any and all other acts or things legally
necessary to enable the disposition in such jurisdictions of the Registrable
Securities covered by the Registration Statement; provided, however, that the
Corporation shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified, take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or subject the Corporation to any tax in any such
jurisdiction where it is not then so subject.
11.
(i) In connection with any sale or transfer of Registrable
Securities that will result in such securities no longer being Registrable
Securities, cooperate with the Holders and the managing underwriters, if any, to
(1) facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold (unless the same shall be in book-entry form),
which certificates shall not bear any restrictive legends, unless required by
applicable securities laws, shall bear a CUSIP number different from the CUSIP
number for the Registrable Securities and shall be in a form eligible for
deposit with the Depositary Trust Corporation, and (2) enable such Registrable
Securities to be in such denominations and registered in such names as the
managing underwriters, if any, or Holders may request at least two Business Days
prior to any sale of Registrable Securities.
(j) Use best efforts to cause the offering of the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities within the United
States as may be necessary to enable the Holder or managing underwriter, if any,
to consummate the disposition of such Registrable Securities; provided, however,
that the Corporation shall not be required to register the Registrable
Securities in any jurisdiction that would require the Corporation to qualify to
do business in any jurisdiction where it is not then so qualified, subject it to
general service of process in any such jurisdiction where it is not then so
subject or subject the Corporation to any tax in any such jurisdiction where it
is not then so subject.
(k) Upon the occurrence of any event contemplated by Section
5(c)(v) hereof, as expeditiously as possible, prepare a supplement or amendment,
including, if appropriate, a post-effective amendment, to the Registration
Statement or a supplement to the related Prospectus or any document incorporated
or deemed to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, such Prospectus will not contain 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, in light of the
circumstances under which they were made, not misleading.
(l) Prior to the effective date of the Registration Statement
relating to the Registrable Securities, to provide a CUSIP number for the
Registrable Securities to be sold pursuant to the Registration Statement.
(m) Enter into such agreements (including any underwriting
agreements in form, scope and substance as may be reasonably requested and as
are customary in underwritten offerings) and take all such other appropriate
actions in connection therewith (including those reasonably requested by the
managing underwriters, if any, or the Holders of a majority in interest of the
Registrable Securities being sold) in order to expedite or facilitate the sale
of such Registrable Securities, including, without limitation, reasonable
participation of senior management in a "road show." In connection with any
underwritten offering, the Corporation will:
(i) make such representations and warranties to the
Holders of such Registrable Securities and the underwriters, if any, with
respect to the business of the Corporation and its Subsidiaries (including with
respect to businesses or assets acquired or to be acquired by any of them), and
the Registration Statement, Prospectus and documents, if any,
12.
incorporated or deemed to be incorporated by reference therein, in each case, in
form, substance and scope as are customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when requested;
(ii) obtain, as may reasonably be required, opinions
of counsel to the Corporation (which may include in-house counsel) and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any), addressed to each
selling Holder of Registrable Securities and each of the underwriters, if any,
covering the matters customarily covered in opinions requested in underwritten
offerings (including any such matters as may be reasonably requested by such
underwriters);
(iii) obtain, as may reasonably be required,
customary "cold comfort" letters and updates thereof from the independent
certified public accountants of the Corporation (and, if necessary, any other
independent certified public accountants of any Subsidiary of the Corporation or
of any business acquired by the Corporation for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed (where reasonably possible) to each selling Holder of
Registrable Securities and each of the underwriters, if any, such letters to be
in customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings; and
(iv) deliver such documents and certificates as may
be reasonably requested by the Holders of a majority in interest of the
Registrable Securities being sold or the managing underwriters, if any, to
evidence the continued validity of the representations and warranties made
pursuant to clause (i) of this Section 5(m) and to evidence compliance with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Corporation;
(n) Make available for inspection by a representative of the
Holders of Registrable Securities being sold, any underwriter participating in
any such disposition of Registrable Securities, if any, and any attorney,
consultant or accountant retained by such selling Holders or underwriter, at the
offices where normally kept, during reasonable business hours, all financial and
other records, pertinent corporate documents and properties of the Corporation
and its Subsidiaries (other than records and documents that the Corporation and
its Subsidiaries agreed contractually not to disclose and the disclosure of
which would violate any such contractual agreement) as they may reasonably
request, and cause the officers, directors, agents and employees of the
Corporation and its Subsidiaries to supply all information (other than
information that the Corporation and its Subsidiaries agreed contractually not
to disclose and the disclosure of which would violate any such contractual
agreement) in each case reasonably requested by any such representative,
underwriter, attorney, consultant or accountant in connection with such
Registration Statement and as shall be reasonably necessary to enable such
persons to conduct a reasonable investigation within the meaning of Section 11
of the Securities Act; provided, however, that the foregoing inspection and
information gathering shall be coordinated on behalf of the Holders and the
other parties thereto by one counsel designated by and on behalf of such Holders
and other parties.
13.
(o) Use all reasonable efforts to cause any Registrable
Securities included in the registration, to the extent such Registrable
Securities are not already so listed, to be admitted for trading on the NYSE (or
such other exchange or automated trading system as shall be the primary trading
system or exchange for the Common Stock).
(p) Have the right, if the Board of Directors of the
Corporation, in its good faith judgment, determines that any registration of
shares of Common Stock should not be made or continued because it would
materially interfere with any material financing, acquisition, corporation
reorganization, merger, or other transaction involving the Corporation or any of
its Subsidiaries, or would require premature disclosure of material non-public
information (a "VALID BUSINESS REASON"): (i) to postpone filing a Registration
Statement until such Valid Business Reason no longer exists, but in no event for
more than 180 days, and (ii) to cause any Registration Statement that has
already been filed to be withdrawn and its effectiveness terminated or to
postpone amending or supplementing such Registration Statement until such Valid
Business Reason no longer exists, but in no event for more than 90 days (the
"POSTPONEMENT PERIOD"); provided, however, that in no event shall the
Corporation be permitted to postpone or withdraw a Registration Statement within
12 months after the expiration of the most recent Postponement Period.
(q) Have the right to require each Holder of any Registrable
Securities as to which any registration is being effected to furnish to the
Corporation such information regarding such Holder and the distribution of such
securities as the Corporation may from time to time reasonably request in
writing and as shall be required by law in connection therewith. Each such
Holder agrees to furnish promptly to the Corporation all information required to
be disclosed in order to make the information previously furnished to the
Corporation by such Holder not materially misleading. The Corporation agrees not
to file or make any amendment to any Registration Statement with respect to any
Registrable Securities, or any amendment of or supplement to the Prospectus used
in connection therewith, which refers to any seller of any securities covered
thereby by name, or otherwise identifies such seller as the holder of any
securities of the Corporation, without the consent of such seller, such consent
not to be unreasonably withheld, except that no such consent shall be required
for any disclosure that is required by law. By the acquisition of Registrable
Securities, each Holder shall be deemed to have agreed that upon receipt of any
notice from the Corporation pursuant to Section 5(c) or 5(p), such Holder will
promptly discontinue such Holder's disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until such Holder shall have received: (i) in the case of Section 5(c), notice
from the Corporation that such Registration Statement has been amended, and
copies of the supplemented or amended Prospectus, as contemplated by Section
5(c)(i); or (ii) in the case of Section 5(p), the time period specified has
elapsed or such Holder has received notice from the Corporation that the
Postponement Period has been terminated. If so directed by the Corporation, each
Holder will deliver to the Corporation (at the Corporation's expense) all
copies, other than permanent file copies, in such Holder's possession of the
Prospectus covering such Registrable Securities at the time of receipt of such
notice. In the event that the Corporation shall give any such notice, the period
mentioned in Section 5(b) shall be extended by the number of days during the
period from and including the date of the giving of such notice to and including
the date when each seller of any Registrable Securities covered by such
Registration Statement shall have received the copies of the supplemented or
amended Prospectus contemplated by Section 5(c)(i).
14.
SECTION 6. INDEMNIFICATION.
(a) The Corporation agrees to indemnify and hold harmless each
Holder of Registrable Securities, such Holder's Affiliates, and their respective
officers, directors, employees, representatives and agents and each Person, if
any, who controls any Holder of Registrable Securities within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any and all loss, liability, claim or damage arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission to state therein any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim or damage arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Corporation by or on behalf of such
Holder of Registrable Securities (which also acknowledges the indemnity
provisions herein) or any person, if any, who controls any such Holder of
Registrable Securities expressly for use in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto); provided, further, that this indemnity
agreement shall not apply to any loss, liability, claim or damage if the Holder
fails to deliver at or prior to the written confirmation of sale, the most
recent Prospectus, as amended or supplemented, and such Prospectus, as amended
or supplemented, would have corrected such untrue statement or omission or
alleged untrue statement or omission of a material fact (provided that the
Corporation has delivered to such Holder, or otherwise given notice to such
Holder of the existence of, such most recent Prospectus, as supplemented or
amended). Any amounts advanced by the Corporation to an indemnified party
pursuant to this Agreement shall be returned to the Corporation if it shall be
finally determined in a judgment by a court of competent jurisdiction not
subject to appeal, that such indemnified party was not entitled to
indemnification.
(b) In connection with the preparation of the Registration
Statement in which a Holder of Registrable Securities is participating in
furnishing information relating to such Holder of Registrable Securities to the
Corporation for use in such Registration Statement, any preliminary prospectus,
the Prospectus or any amendments or supplements thereto, each such Holder
agrees, severally and not jointly, to indemnify and hold harmless any other
Holders of Registrable Securities, the Corporation, its Affiliates, officers,
directors, employees representatives and agents and each Person, if any, who
controls such other Holders or the Corporation within the meaning of either such
Section, against any and all loss, liability, claim or damage described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto), or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Corporation by or on behalf of such Holder of Registrable Securities
(which also acknowledges the indemnity provisions herein) or any person, if any,
who controls any such Holder of Registrable Securities expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
15.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. The indemnifying
party, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii)
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for (a) the fees and expenses of more than one
separate firm (in addition to any local counsel), for each of the Carlyle
Holders and ▇▇▇▇ Holders, and all Persons, if any, who control the Holders of
Registrable Securities within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, collectively (unless representation of
all Holders and such parties by the same counsel would be inappropriate due to
actual or potential differing interests between or among them), and (b) the fees
and expenses of more than one separate firm (in addition to any local counsel),
for the Corporation and each Person, if any, who controls the Corporation within
the meaning of either such Section, and that all fees and expenses payable under
(a) and (b) above shall be reimbursed as they are incurred. In the case of any
such separate firm for the Holders of Registrable Securities, and control
persons of the Holders of Registrable Securities, such firm shall be designated
by the Requesting Holders and shall be reasonably acceptable to the Corporation.
In the case of any such separate firm for the Corporation and control persons of
the Corporation, such firm shall be reasonably acceptable to the Holders of a
majority in interest of the Registrable Securities. So long as it is
participating in the defense of the indemnified party, the indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent (which consent shall not be unreasonably withheld or delayed),
but if settled with such consent or if there be a final non-appealable judgment
for the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld or
delayed), settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party. No indemnified party shall, without the
prior written consent of the indemnifying party (which consent shall not be
unreasonably withheld or delayed), settle or compromise or consent
16.
to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 (whether or not the
indemnified parties are actual or potential parties thereto).
(d) If the indemnification to which an indemnified party is
entitled under this Section 6 is for any reason unavailable to or insufficient
although applicable in accordance with its terms to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative fault of the Corporation on the one hand and the Holders
of the Registrable Securities on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Corporation or by the Holder of the Registrable
Securities and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 6(d). The
aggregate amount of losses, liabilities, claims, damages, and expenses incurred
by an indemnified party and referred to above in this Section 6(d) shall be
deemed to include any out-of-pocket legal or other expenses reasonably incurred
by such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6, no Holder shall be
required to indemnify or contribute any amount in excess of the amount by which
the amount actually received by such Holder for the Registrable Securities sold
by such Holder exceeds the amount of any damages that such Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
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.
The remedies provided in this Section 6 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
For purposes of this Section 6(d), each Person, if any, who controls
any Holder of Registrable Securities within the meaning of Section 15 of the
Securities Act or Section 20 of the
17.
Exchange Act shall have the same rights to contribution as such Holder, and each
Person, if any, who controls the Corporation within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act shall have the same rights
to contribution as the Corporation. No party shall be liable for contribution
with respect to any action, suit, proceeding or claim settled, compromised, or
with respect to which the party requesting contribution consented to the entry
of a judgment, without such party's written consent, which consent shall not be
unreasonably withheld or delayed.
(e) The Corporation may require as a condition to including
the Registrable Securities in the Registration Statement, and to entering into
any underwriting agreement with respect thereto, that the Corporation shall have
received an undertaking from the Holder and such underwriter to comply with the
provisions of this Section 6.
(f) The agreements contained in this Section 6 shall survive
the transfer or sale of the Registrable Securities and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
SECTION 7. INFORMATION REQUIREMENTS.
(a) The Corporation agrees that, if at any time the
Corporation is not subject to the reporting requirements of the Exchange Act, it
will cooperate with any Holder of Registrable Securities and use reasonable
efforts to take such further reasonable action as any Holder of Registrable
Securities may request in writing to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 and Rule 144A under the Securities Act
(or any similar rule or regulation hereafter adopted by the SEC) and customarily
taken in connection with sales pursuant to such exemptions, including, without
limitation, making available adequate current public information within the
meaning of paragraph (c)(2) of Rule 144 and delivering the information required
by paragraph (d) of Rule 144A. Notwithstanding the foregoing, nothing in this
Section 7 shall be deemed to require the Corporation to register any of its
securities under any section of the Exchange Act.
(b) The Corporation shall file reports required to be filed by
it under the Exchange Act and the rules of the NYSE or any other securities
exchanges or markets on which the Common Stock is listed or quoted.
SECTION 8. UNDERWRITTEN REGISTRATION. If any of the Registrable
Securities covered by a Registration Statement filed in connection with Sections
2(a) or 2(b) are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
will be investment bankers of recognized national standing selected by the
Requesting Holders, subject to the consent of the Corporation, which will not be
unreasonably withheld or delayed. No person may participate in any underwritten
registration hereunder unless such person (a) agrees to sell such person's
Registrable Securities on the basis reasonably provided in any underwriting
arrangements approved by the Requesting Holders; and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up agreements and other documents reasonably required under the terms of
18.
such underwriting arrangements. Notwithstanding any other provision of this
Agreement, if the underwriter determines in good faith that marketing factors
require a limitation of the number of shares to be underwritten, the number of
shares that may be included in the underwriting shall be allocated as set forth
in Sections 2(f) and 3(b) above.
SECTION 9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Corporation has not
entered into or shall not enter into any agreement that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Corporation's other issued and outstanding securities under any such
agreements.
(b) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the registration rights granted by the Corporation
with respect to the Registrable Securities. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Corporation with respect
to the Registrable Securities. This Agreement supersedes all prior agreements
and undertakings among the Parties with respect to such registration rights,
including the Registration Rights Agreement dated February 21, 1990 and the
Registration Rights Agreement dated June 9, 1999.
(c) NO ADVERSE ACTION AFFECTING THE REGISTRABLE SECURITIES.
The Corporation will not take any action with respect to the Registrable
Securities which would adversely affect the ability of any of the Holders to
include such Registrable Securities in a registration undertaken pursuant to
this Agreement.
(d) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof,
may not be given, without the written consent of the Corporation and Holders of
(i) a majority in interest of Registrable Securities held by ▇▇▇▇ Holders and
(ii) a majority in interest of Registrable Securities held by Carlyle Holders,
provided, however, that, for the purposes of this Agreement, Registrable
Securities that are held, directly or indirectly, by either the Corporation or
an Affiliate of the Corporation are not deemed outstanding. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders whose Registrable
Securities are being sold pursuant to the Registration Statement with respect to
the offering of Registrable Securities pursuant to such Registration Statement
and that does not directly or indirectly affect the rights of other Holders may
be given by Holders of a majority in interest of the Registrable Securities
being sold by such Holders pursuant to such Registration Statement, provided,
however, that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately
preceding sentence. Each Holder of Registrable Securities outstanding at the
time of any such amendment, modification, supplement, waiver or consent or
thereafter shall be bound by any such amendment, modification, supplement,
waiver or consent effected pursuant to this Section 9(d),
19.
whether or not any notice, writing or marking indicating such amendment,
modification, supplement, waiver or consent appears on the Registrable
Securities or is delivered to such Holder.
(e) NOTICES. All notices and other communications provided for
herein or permitted hereunder shall be made in writing by hand-delivery, courier
guaranteeing overnight delivery, certified first-class mail, return receipt
requested, or telecopy and shall be deemed given (i) when made, if made by hand
delivery, (ii) upon confirmation, if made by telecopier, (iii) one Business Day
after being deposited with such courier, if made by overnight courier or (iv) on
the date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
(i) If to the Corporation to:
URS CORPORATION
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ GODWARD LLP
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
(ii) If to ▇▇▇▇ or a ▇▇▇▇ Holder to:
▇▇▇▇ CAPITAL PARTNERS, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
20.
(iii) If to Carlyle or a ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to:
THE CARLYLE GROUP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(f) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors assign and transferees. Any Holder may assign its rights hereunder in
whole or in part to an Affiliate or to a Distributee or to other successors,
assigns and transferees of such Holder; provided that such Affiliate,
Distributee or successor, assignee or transferee expressly agrees to be bound by
this Agreement by written supplement. This Agreement shall survive any transfer
of Registrable Securities to and shall inure to the benefit of each Holder and
any Affiliate, Distributee or such other successors, assigns and transferees of
such Holder.
(g) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, as applied to
contracts made and performed within the State of Delaware without regard to
principles of conflicts of law.
(h) SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction, it being intended that all of the
rights and privileges of the parties shall be enforceable to the fullest extent
permitted by law.
(i) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. All references made in this Agreement to "Section" and
"paragraph" refer to such Section or paragraph of this Agreement, unless
expressly stated otherwise.
(j) SPECIFIC PERFORMANCE. The Corporation agrees that, to the
extent permitted by law, (i) the obligations imposed on them in this Agreement
are special, unique and of an extraordinary character, and that in the event of
a breach by the Corporation would not be an adequate remedy; and (ii) the
Holders shall be entitled to specific performance and injunctive
21.
and other equitable relief in addition to any other remedy to which they may be
entitled at law or in equity.
22.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, in two or more counterparts, each of which shall be deemed to be
an original and all of which collectively shall be deemed to be one and the same
instrument, as of the date first written above.
CORPORATION: URS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President, Chief
Financial Officer and Secretary
Signature Page - Registration Rights Agreement
▇▇▇▇: ▇▇▇▇ STRATEGIC PARTNERS, L.P.
BY: ▇▇▇▇ STRATEGIC GP, L.L.C.,
ITS GENERAL PARTNER
By: /s/ N. ▇▇▇▇▇ ▇▇▇▇
------------------------------------
N. ▇▇▇▇▇ ▇▇▇▇, Managing Member
▇▇▇▇ CAPITAL PARTNERS, L.P.
BY: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ & ASSOCIATES, INC.,
ITS GENERAL PARTNER
By: /s/ N. ▇▇▇▇▇ ▇▇▇▇
------------------------------------
N. ▇▇▇▇▇ ▇▇▇▇, Managing Partner
Signature Page - Registration Rights Agreement
CARLYLE: CARLYLE-EG&G, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Title: Chairman
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EG&G TECHNICAL SERVICES HOLDINGS, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Title: Vice President
--------------------------------------
Signature Page - Registration Rights Agreement