Exhibit 10
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REGISTRATION RIGHTS AGREEMENT
by and among
BLACKSTONE CAPITAL COMPANY II, L.L.C.,
HEARTLAND INDUSTRIAL PARTNERS, L.P.,
▇▇▇▇▇▇▇▇▇▇▇/C&A HOLDINGS, L.L.C.,
and
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION
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Dated: February 23, 2001
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS...................................................... 2
1.1 Definitions....................................................... 2
ARTICLE II GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT................... 4
2.1 Grant of Rights................................................... 4
2.2 Registrable Securities............................................ 5
2.3 Holders of Registrable Securities................................. 5
ARTICLE III DEMAND REGISTRATION............................................ 5
3.1 Request for Demand Registration................................... 5
3.2 Incidental or "Piggy-Back" Rights with Respect to a
Demand Registration............................................ 6
3.3 Effective Demand Registration..................................... 7
3.4 Expenses.......................................................... 7
3.5 Underwriting Procedures........................................... 7
3.6 Selection of Underwriters......................................... 8
ARTICLE IV INCIDENTAL OR "PIGGY-BACK" REGISTRATION......................... 8
4.1 Request for Incidental Registration............................... 8
4.2 Expenses.......................................................... 9
ARTICLE V HOLDBACK AGREEMENTS.............................................. 9
5.1 Restrictions on Public Sale by Designated Holders................. 9
5.2 Restrictions on Public Sale by the Company........................ 10
ARTICLE VI REGISTRATION PROCEDURES......................................... 10
6.1 Obligations of the Company........................................ 10
6.2 Seller Information(a)............................................. 13
6.3 Notice to Discontinue............................................. 13
6.4 Registration Expenses............................................. 14
ARTICLE VII INDEMNIFICATION; CONTRIBUTION.................................. 14
7.1 Indemnification by the Company.................................... 14
7.2 Indemnification by Designated Holders............................. 15
7.3 Conduct of Indemnification Proceedings............................ 15
7.4 Contribution...................................................... 16
ARTICLE VIII COVENANTS..................................................... 17
8.1 Rule 144.......................................................... 17
8.2 ▇▇▇▇▇▇▇▇▇▇▇ and Blackstone Priority of Sale....................... 17
ARTICLE IX MISCELLANEOUS................................................... 17
9.1 Recapitalizations, Exchanges, etc................................. 17
9.2 No Inconsistent Agreements........................................ 18
9.3 Remedies.......................................................... 18
9.4 Notices........................................................... 18
9.5 Successors and Assigns; Third Party Beneficiaries................. 20
9.6 Amendments and Waivers............................................ 21
9.7 Counterparts...................................................... 21
9.8 Headings.......................................................... 21
9.9 Governing Law..................................................... 21
9.10 Severability...................................................... 21
9.11 Rules of Construction............................................. 21
9.12 Entire Agreement.................................................. 21
9.13 Further Assurances................................................ 22
9.14 Other Agreements.................................................. 22
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated February 23, 2001, by and among
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation, a Delaware corporation (the "COMPANY"), Heartland
Industrial Partners, L.P. ("Heartland") and the other investor stockholders
listed on Schedule 1 hereto (together with Heartland, the "INVESTORS"),
Blackstone Capital Company II, L.L.C. ("BLACKSTONE CAPITAL II"), Blackstone
Family Investment Partnership I L.P. ("BLACKSTONE FAMILY"), Blackstone Advisory
Directors Partnership L.P. ("BLACKSTONE ADVISORY") and Blackstone Capital
Partners, L.P. ("BLACKSTONE CAPITAL") (together with Blackstone Capital II,
Blackstone Family and Blackstone Advisory, "BLACKSTONE") and ▇▇▇▇▇▇▇▇▇▇▇/C&A
Holdings, L.L.C. ("▇▇▇▇▇▇▇▇▇▇▇," together with Blackstone, the "ORIGINAL
STOCKHOLDERS").
WHEREAS, pursuant o the Share Purchase Agreement, dated January 12,
2001 (the "COMPANY STOCK PURCHASE AGREEMENT"), by and between the Company and
Heartland, the Company is selling to the Investors (x) an aggregate of 1,000,000
shares of Non-Voting Convertible Preferred Stock, par value $.01 per share (the
"CONVERTIBLE PREFERRED SHARES"), which is convertible into 16,510,000 shares of
Common Stock, par value $ 0.01 per share, of the Company (the "COMMON STOCK")
and (y) 8,490,000 shares (the "Treasury Shares") of Common Stock.
WHEREAS, pursuant to the Stock Purchase Agreement, dated January 12,
2001 (the "SECONDARY STOCK PURCHASE AGREEMENT" and, together with the Company
Stock Purchase Agreement, the "STOCK PURCHASE AGREEMENTS"), the Original
Stockholders are selling to the Investors an aggregate of 27,000,000 shares of
Common Stock;
WHEREAS, concurrently herewith, the Company, the Investors and the
Original Stockholders are entering into the Stockholders Agreement (as
hereinafter defined), pursuant to which the parties thereto have agreed to,
among other things, certain first offer and tag-along rights, preemptive rights
and certain corporate governance rights and obligations; and
WHEREAS, in order to induce each of the Investors to purchase its
shares of Common Stock as provided in the Stock Purchase Agreements, and to
induce the parties hereto to enter into the Stockholders Agreement, the Company
has agreed to grant registration rights with respect to the Registrable
Securities (as hereinafter defined) as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, and unless the context
requires a different meaning, the following terms have the meanings indicated:
"AFFILIATE" has the meaning specified in the Stockholders Agreement.
"AGREEMENT" means this Agreement as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"APPROVED UNDERWRITER" has the meaning set forth in Section 3.6.
"BLACKSTONE HOLDERS OR STOCKHOLDERS" means Blackstone and its Permitted
Transferees and Partner Transferees to whom Registrable Securities are
transferred in accordance with Section 2.2 of the Stockholders Agreement and
Section 9.5 of this Agreement.
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which commercial banks in the State of New York are authorized or required by
law or executive order to close.
"COMMISSION" means the Securities and Exchange Commission or any
similar agency then having jurisdiction to enforce the Securities Act.
"COMMON STOCK" has the meaning set forth in the preamble to this
Agreement or any other capital stock of the Company into which such stock is
reclassified or reconstituted and any other common stock of the Company and
shall include the Convertible Preferred Shares for all purposes of this
Agreement, whether or not converted.
"COMPANY" has the meaning set forth in the preamble to this Agreement.
"COMPANY UNDERWRITER" has the meaning set forth in Section 4.1.
"CONVERTIBLE PREFERRED SHARES" has the meaning set forth in the
preamble to this Agreement.
"DEMAND REGISTRATION" has the meaning set forth in Section 3.1.
"DESIGNATED HOLDER" means each of the Investors, the Major Stockholders
and any transferee of any of them to whom Registrable Securities have been
transferred in accordance with Section 9.5, other than a transferee to whom
Registrable Securities
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have been transferred pursuant to a Registration Statement under the Securities
Act or Rule 144 or Regulation S under the Securities Act (or any successor rule
thereto).
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder.
"HEARTLAND" has the meaning set forth in the preamble to this
Agreement.
"HEARTLAND ENTITIES" has the meaning ascribed thereto in the
Stockholders Agreement.
"HOLDER'S COUNSEL" has the meaning set forth in Section 6.1(a).
"INCIDENTAL REGISTRATION" has the meaning set forth in Section 4.1.
"INDEMNIFIED PARTY" has the meaning set forth in Section 7.3.
"INDEMNIFYING PARTY" has the meaning set forth in Section 7.3.
"INITIATING HOLDERS" has the meaning set forth in Section 3.1.
"INSPECTOR" has the meaning set forth in Section 6.1(g).
"INVESTORS" has the meaning set forth in the preamble to this
Agreement.
"INVESTOR STOCKHOLDERS" means each Investor and any Permitted
Transferee thereof to whom Registrable Securities are transferred in accordance
with Section 2.2 of the Stockholders Agreement and Section 9.5 of this
Agreement.
"LIABILITY" has the meaning set forth in Section 7.1.
"MAJOR STOCKHOLDERS" means each Original Stockholder and any Permitted
Transferee or Partner Transferee thereof to whom Registrable Securities are
transferred in accordance with Section 2.2 of the Stockholders Agreement and
Section 9.5 of this Agreement.
"MAJORITY OF THE INVESTOR STOCKHOLDERS" means the Investor Stockholders
holding a majority of the Registrable Securities held by all Investor
Stockholders.
"MAJORITY OF BLACKSTONE STOCKHOLDERS" means the Blackstone Stockholders
holding a majority of the Registrable Securities held by all Blackstone
Stockholders.
"MAJORITY OF ▇▇▇▇▇▇▇▇▇▇▇ STOCKHOLDERS" means the ▇▇▇▇▇▇▇▇▇▇▇
Stockholders holding a majority of the Registrable Securities held by all
▇▇▇▇▇▇▇▇▇▇▇ Stockholders.
"NASD" means the National Association of Securities Dealers, Inc.
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"PARTNER TRANSFEREE" has the meaning ascribed to such term in the
Stockholders Agreement.
"PERMITTED TRANSFEREE" has the meaning ascribed to such term in the
Stockholders Agreement.
"PERSON" means any individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
limited liability company, government (or an agency or political subdivision
thereof) or other entity of any kind, and shall include any successor (by merger
or otherwise) of such entity.
"RECORDS" has the meaning set forth in Section 6.1(g).
"REGISTRABLE SECURITIES" means, subject to Section 2.2, each of the
following: (a) any and all shares of Common Stock owned by the Designated
Holders and (b) any shares of Common Stock issued or issuable to any of the
Designated Holders with respect to the Registrable Securities by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise and
any shares of Common Stock or voting common stock issuable upon conversion,
exercise or exchange thereof.
"REGISTRATION EXPENSES" has the meaning set forth in Section 6.4.
"REGISTRATION STATEMENT" means a registration statement filed pursuant
to the Securities Act.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"VALID BUSINESS REASON" has the meaning set forth in Section 3.1.
"▇▇▇▇▇▇▇▇▇▇▇ HOLDERS OR STOCKHOLDERS" means ▇▇▇▇▇▇▇▇▇▇▇ and its
Permitted Transferees and Partner Transferees to whom Registrable Securities are
transferred in accordance with Section 2.2 of the Stockholders Agreement and
Section 9.5 of this Agreement.
Any terms not defined herein shall have the meanings ascribed thereto
in the Stockholders Agreement.
ARTICLE II
GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT
2.1 GRANT OF RIGHTS. The Company hereby grants registration rights to
the Designated Holders upon the terms and conditions set forth in this
Agreement.
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2.2 REGISTRABLE SECURITIES. For the purposes of this Agreement,
Registrable Securities will cease to be Registrable Securities, when (i) a
Registration Statement covering such securities has been declared effective
under the Securities Act by the Commission and such securities have been
disposed of pursuant to such effective Registration Statement or (ii) (x) with
respect to a Designated Holder, the entire amount of such Designated Holder's
Registrable Securities may be sold in a single sale, in the opinion of counsel
satisfactory to the Company and the Designated Holder, each in their reasonable
judgment, without any limitation as to volume pursuant to Rule 144 (or any
successor provision then in effect) under the Securities Act and (y) the
Designated Holder owning such Registrable Securities owns less than one percent
(1%) of the outstanding shares of Common Stock on a fully diluted basis.
2.3 HOLDERS OF REGISTRABLE SECURITIES. A Person is deemed to be a
holder of Registrable Securities whenever such Person owns of record Registrable
Securities, or holds an option to purchase, or a security convertible into or
exercisable or exchangeable for, Registrable Securities whether or not such
acquisition or conversion has actually been effected. If the Company receives
conflicting instructions, notices or elections from two or more Persons with
respect to the same Registrable Securities, the Company may act upon the basis
of the instructions, notice or election received from the registered owner of
such Registrable Securities. Registrable Securities issuable upon exercise of an
option or upon conversion of another security shall be deemed outstanding for
the purposes of this Agreement.
ARTICLE III
DEMAND REGISTRATION
3.1 REQUEST FOR DEMAND REGISTRATION. Blackstone or Blackstone Holders
designated by Blackstone (the "Initiating Blackstone Holders"), ▇▇▇▇▇▇▇▇▇▇▇ or
▇▇▇▇▇▇▇▇▇▇▇ Holders designated by ▇▇▇▇▇▇▇▇▇▇▇ (the "INITIATING ▇▇▇▇▇▇▇▇▇▇▇
HOLDERS"), and Heartland or an Investor Stockholder designated by the Heartland
Entities (the "INITIATING INVESTOR HOLDERS," each of the Initiating Blackstone
Holders, the Initiating ▇▇▇▇▇▇▇▇▇▇▇ Holders and the Initiating Investor Holders
shall be known as the "INITIATING HOLDERS," as appropriate), may each make a
written request to the Company to register, and the Company shall register,
under the Securities Act (other than pursuant to a Registration Statement on
Form S-4 or S-8 or any successor thereto) a "DEMAND REGISTRATION", the number of
Registrable Securities stated in such request; PROVIDED, HOWEVER, that the
Company shall not be obligated to effect (x) more than four (4) such Demand
Registrations at the request of Initiating Investor Holders, and (y) in the
aggregate not more than four (4) such Demand Registrations at the request of
Initiating Blackstone and Initiating ▇▇▇▇▇▇▇▇▇▇▇ Holders: two of which shall be
at the request of Initiating Blackstone Holders and two of which shall be at the
request of Initiating ▇▇▇▇▇▇▇▇▇▇▇ Holders. For purposes of the preceding
sentence, two or more Registration Statements filed in response to one demand
shall
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be counted as one Demand Registration; provided, however, that any such
Registration Statement filed at the request of an Initiating Holder and
subsequently withdrawn at the request of that Initiating Holder shall be counted
as a Demand Registration unless the withdrawing Initiating Holder pays the
expenses associated with such Registration Statement in which case such
Registration shall not be so counted. Notwithstanding anything to the contrary
contained herein, no Demand Registration need be effected by the Company within
six (6) months after the effectiveness of any registration statement pursuant to
a Demand Registration. The Company shall not be obliged to include more than 10
million Shares (as equitably adjusted for stock splits, stock combinations and
similar events) in any Registration Statement pursuant to a Demand Registration,
inclusive of any Shares to be included pursuant to any incidental or piggy-back
rights under this Agreement. If the Board of Directors, in its good faith
judgment, determines that any registration of Registrable Securities should not
be made or continued because it would materially interfere with any material
financing, acquisition, corporate reorganization or merger or other material
transaction involving the Company (a "VALID BUSINESS REASON"), the Company may
(x) postpone filing a registration statement relating to a Demand Registration
until such Valid Business Reason no longer exists, but in no event for more than
ninety (90) days, and (y) in case a registration statement has been filed
relating to a Demand Registration, if the Valid Business Reason has not resulted
from actions taken by the Company, the Company, upon the approval of a majority
of the Board of Directors, such majority to include at least one Investor
Director and the Blackstone Director, if applicable, and the ▇▇▇▇▇▇▇▇▇▇▇
Director, if applicable, may cause such registration statement to be withdrawn
and its effectiveness terminated or may postpone amending or supplementing such
registration statement. The Company shall give written notice of its
determination to postpone or withdraw a registration statement and of the fact
that the Valid Business Reason for such postponement or withdrawal no longer
exists, in each case, promptly after the occurrence thereof. Notwithstanding
anything to the contrary contained herein, the Company may not postpone or
withdraw a filing under this Section 3.1 more than once in any twelve (12) month
period. Each request for a Demand Registration by the Initiating Holders shall
state the amount of the Registrable Securities proposed to be sold and the
intended method of disposition thereof.
3.2 INCIDENTAL OR "PIGGY-BACK" RIGHTS WITH RESPECT TO A DEMAND
REGISTRATION. Each of the Designated Holders (other than Initiating Holders
which have requested a registration under Section 3.1) may offer its or his
Registrable Securities under any Demand Registration pursuant to this Section
3.2. Within five (5) Business Days after the receipt of a request for a Demand
Registration from an Initiating Holder, the Company shall (i) give written
notice thereof to all of the Designated Holders (other than Initiating Holders
which have requested a registration under Section 3.1) and (ii) subject to
Section 3.5, include in such registration all of the Registrable Securities held
by such Designated Holders from whom the Company has received a written request
for inclusion therein within ten (10) days of the receipt by such Designated
Holders of such written notice referred to in clause (i) above. Each such
request by such Designated Holders shall specify the number of Registrable
Securities proposed to be registered. The failure of any Designated Holder to
respond within such 10-day period referred to in clause (ii) above shall be
deemed to be a waiver of such Designated Holder's rights under this Article III
with respect to such Demand Registration. Any Designated Holder may waive its
rights under this Article III prior to the expiration of such 10-day period by
giving written notice to the Company, with a copy to the Initiating Holders. If
a
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Designated Holder sends the Company a written request for inclusion of part or
all of such Designated Holder's Registrable Securities in a registration, such
Designated Holder shall not be entitled to withdraw or revoke such request
without the prior written consent of the Company in its sole discretion unless,
as a result of facts or circumstances arising after the date on which such
request was made relating to the Company or to market conditions, such
Designated Holder reasonably determines that participation in such registration
would have a material adverse effect on such Designated Holder.
3.3 EFFECTIVE DEMAND REGISTRATION. The Company shall use its reasonable
best efforts to cause any such Demand Registration to become effective not later
than sixty (60) days after it receives a request under Section 3.1 hereof. A
registration shall not constitute a Demand Registration until it has become
effective and remains continuously effective for the shorter of (i) 90 days and
(ii) the period during which all Registrable Securities registered in the Demand
Registration are sold; PROVIDED, HOWEVER, that a registration shall not
constitute a Demand Registration if (x) after such Demand Registration has
become effective, such registration or the related offer, sale or distribution
of Registrable Securities thereunder is interfered with by any stop order,
injunction or other order or requirement of the Commission or other governmental
agency or court for any reason not attributable to the Initiating Holders and
such interference is not thereafter eliminated or (y) the conditions specified
in the underwriting agreement, if any, entered into in connection with such
Demand Registration are not satisfied or waived, other than by reason of a
failure by the Initiating Holder or (z) the Company exercises its rights of
postponement, termination or withdrawal under Section 3.1.
3.4 EXPENSES. The Company shall pay all Registration Expenses in
connection with a Demand Registration, whether or not such Demand Registration
becomes effective.
3.5 UNDERWRITING PROCEDURES. If the Company or the Initiating Holders
holding a majority of the Registrable Securities held by all of the Initiating
Holders so elect, the Company shall use its reasonable best efforts to cause
such Demand Registration to be in the form of a firm commitment underwritten
offering and the managing underwriter or underwriters selected for such offering
shall be the Approved Underwriter selected in accordance with Section 3.6. In
connection with any Demand Registration under this Article III involving an
underwritten offering, none of the Registrable Securities held by any
Designated Holder making a request for inclusion of such Registrable
Securities pursuant to Section 3.2 hereof shall be included in such
underwritten offering unless such Designated Holder accepts the terms of the
offering as agreed upon by the Company, the Initiating Holders and the
Approved Underwriter (including execution of an escrow agreement and/or a
power of attorney with respect to the disposition of the Registrable
Securities), and then only in such quantity as will not, in the opinion of
the Approved Underwriter, jeopardize the success of such offering by the
Initiating Holders. If the Approved Underwriter advises the Company that the
aggregate amount of such Registrable Securities requested to be included in
such offering is sufficiently large to have a material adverse effect on the
success of such offering, then the Company shall include in such registration
only the aggregate amount of Registrable
8
Securities that the Approved Underwriter believes may be
sold without any such material adverse effect and shall reduce the amount of
Registrable Securities to be included in such registration, first as to the
Company and any holder of capital stock of the Company who is not a Designated
Holder, second as to the Investors as a group, pro rata based on the number of
Registrable Securities owned by each Investor and third as to Blackstone Holders
and ▇▇▇▇▇▇▇▇▇▇▇ Holders as a group, pro rata based on the number of Registrable
Securities then owned by each.
3.6 SELECTION OF UNDERWRITERS. If any Demand Registration, as the case
may be, of Registrable Securities is in the form of an underwritten offering,
the Company shall select and obtain an investment banking firm of national
reputation to act as the managing underwriter of the offering (the "APPROVED
UNDERWRITER"); PROVIDED, HOWEVER, that the Approved Underwriter shall, in any
case, also be approved by the Initiating Holders such approval not to be
unreasonably withheld.
ARTICLE IV
INCIDENTAL OR "PIGGY-BACK" REGISTRATION
4.1 REQUEST FOR INCIDENTAL REGISTRATION. If the Company proposes to
file a Registration Statement under the Securities Act with respect to an
offering by the Company for its own account (other than a Registration Statement
on Form S-4 or S-8 or any successor thereto) (a "COMPANY OFFERING") or for the
account of any stockholder of the Company other than the Designated Holders
(each such Stockholder, a "NON-DESIGNATED STOCKHOLDER" and such offering a
"NON-DESIGNATED STOCKHOLDER OFFERING"), then the Company shall give written
notice of such proposed filing to each of the Designated Holders at least ten
(10) Business Days before the anticipated filing date, and such notice shall
describe the proposed registration and distribution and offer such Designated
Holders the opportunity to register the number of Registrable Securities as each
such Designated Holder may request (an "INCIDENTAL REGISTRATION"). The Company
shall use its reasonable best efforts to cause the managing underwriter or
underwriters in the case of a proposed underwritten offering (the "COMPANY
UNDERWRITER") to permit each of the Designated Holders who have requested in
writing to participate in the Incidental Registration to include its or his
Registrable Securities in such offering on the same terms and conditions as the
securities of the Company or the securities of such Non-Designated Stockholders,
as the case may be, included therein. In connection with any Incidental
Registration under this Section 4.1 involving an underwritten offering, the
Company shall not be required to include any Registrable Securities in such
underwritten offering unless the Designated Holders thereof accept the terms of
the underwritten offering as agreed upon between the Company, such
Non-Designated Stockholders, if any, and the Company Underwriter (including
execution of an escrow agreement and/or a power of attorney with respect to the
disposition of the Registrable Securities), and then only in such quantity as
the Company Underwriter believes will not jeopardize the success of the offering
by the Company. If the Company Underwriter determines that the registration of
all or part of the Registrable Securities which the Designated Holders have
requested to be included would materially adversely affect the success of such
offering, then the
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Company shall be required to include in such Incidental Registration, to the
extent of the amount that the Company Underwriter believes may be sold without
causing such adverse effect, (i) in the case of a Company Offering: FIRST, all
of the securities to be offered for the account of the Company; SECOND, the
Registrable Securities to be offered for the account of Blackstone Holders and
▇▇▇▇▇▇▇▇▇▇▇ Holders, pro rata based on the number of Registrable Securities then
owned by each; and THIRD, any other securities requested to be included in such
offering by the Investors and any other Person pro rata based on the number of
Registrable Securities then owned by each; and (ii) in the case of a
Non-Designated Stockholder Offering: FIRST, the Registrable Securities to be
offered for the account of Blackstone Holders and ▇▇▇▇▇▇▇▇▇▇▇ Holders pro rata
based on the number of Registrable Securities owned by each; SECOND, all of the
securities to be offered for the account of the Company, such Non-Designated
Stockholder and the Investors pro rata based on the number of securities then
owned by each. Nothing in this Section 4.1 shall create any liability on the
part of the Company or any other person to the Designated Holders if the
Company, for any reason, decides not to file a Registration Statement proposed
to be filed pursuant to this Section 4.1 or to withdraw such Registration
Statement subsequent to its filing, regardless of any action whatsoever that a
Designated Holder may have taken, whether as a result of the issuance by the
Company of any notice under this Section 4.1 or otherwise.
4.2 EXPENSES. The Company shall bear all Registration Expenses in
connection with any Incidental Registration pursuant to this Article IV, whether
or not such Incidental Registration becomes effective.
ARTICLE V
HOLDBACK AGREEMENTS
5.1 RESTRICTIONS ON PUBLIC SALE BY DESIGNATED HOLDERS. To the extent
requested (A) by the Company or the Initiating Holders, as the case may be, in
the case of a non-underwritten public offering and (B) by the Approved
Underwriter or the Company Underwriter, as the case may be, in the case of an
underwritten public offering, each Designated Holder of Registrable Securities
agrees (x) not to effect any sale or distribution of any Registrable Securities
or of any securities convertible into or exchangeable or exercisable for such
Registrable Securities, including a sale pursuant to Rule 144 under the
Securities Act, or offer to sell, contract to sell (including without limitation
any short sale), grant any option to purchase or enter into any hedging or
similar transaction with the same economic effect as a sale of Registrable
Securities and (y) not to make any request for a Demand Registration under this
Agreement, during the one hundred-twenty (120) day period or such shorter
period, if any, agreed to by the requesting party beginning on the effective
date of such Registration Statement (except as part of such registration). No
Designated Holder of Registrable Securities subject to this Section 5.1 shall be
released from any obligation under any agreement, arrangement or understanding
entered into pursuant to this Section 5.1 except to the extent all other
Designated Holders of Registrable Securities subject to the same obligation are
also released.
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5.2 RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The Company agrees not
to effect any sale or distribution of any of its securities, or any securities
convertible into or exchangeable or exercisable for such securities (except
pursuant to registrations on Form S-4 or S-8 or any successor thereto), during
the period beginning on the effective date of any Registration Statement in
which the Designated Holders of Registrable Securities are participating and
ending on the earlier of (i) the date on which all Registrable Securities
registered on such Registration Statement are sold and (ii) one hundred-twenty
(120) days after the effective date of such Registration Statement (except as
part of such registration).
ARTICLE VI
REGISTRATION PROCEDURES
6.1 OBLIGATIONS OF THE COMPANY. Whenever registration of Registrable
Securities has been requested pursuant to Article III or Article IV of this
Agreement, the Company shall use its reasonable best efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as quickly as practicable, and in
connection with any such request, the Company shall, as expeditiously as
possible:
(a) prepare and file with the Commission a Registration Statement
on any form for which the Company then qualifies or which counsel for
the Company shall deem appropriate and which form shall be available
for the sale of such Registrable Securities in accordance with the
intended method of distribution thereof, and use its reasonable best
efforts to cause such Registration Statement to become effective;
PROVIDED, HOWEVER, that (x) before filing a Registration Statement or
prospectus or any amendments or supplements thereto, the Company shall
provide counsel selected by the Designated Holders holding a majority
of the Registrable Securities being registered in such registration
("HOLDERS' COUNSEL") and any other Inspector with a reasonably adequate
and appropriate opportunity to review and comment on such Registration
Statement and each prospectus included therein (and each amendment or
supplement thereto) to be filed with the Commission, subject to such
documents being under the Company's control, and (y) the Company shall
notify the Holders' Counsel and each seller of Registrable Securities
of any stop order issued or threatened by the Commission and take all
action required to prevent the entry of such stop order or to remove it
if entered;
(b) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective for the lesser of (x) 90 days and (y) such shorter
period which will terminate when all Registrable Securities covered by
such Registration Statement have been sold, and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement;
11
(c) furnish to each seller of Registrable Securities, prior to
filing a Registration Statement, at least one copy of such Registration
Statement as is proposed to be filed, and thereafter such number of
copies of such Registration Statement, each amendment and supplement
thereto (in each case including all exhibits thereto), and the
prospectus included in such Registration Statement (including each
preliminary prospectus) and any prospectus filed under Rule 424 under
the Securities Act as each such seller may reasonably request in order
to facilitate the disposition of the Registrable Securities owned by
such seller;
(d) register or qualify such Registrable Securities under such
other securities or "blue sky" laws of such jurisdictions as any seller
of Registrable Securities may reasonably request, and to continue such
qualification in effect in such jurisdiction for as long as required
pursuant to the laws of such jurisdiction, or for as long as any such
seller reasonably requests or until all of such Registrable Securities
are sold, whichever is shortest, and do any and all other acts and
things which may be reasonably necessary or advisable to enable any
such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller; PROVIDED, HOWEVER, that
the Company shall not be required to (x) qualify generally to do
business in any jurisdiction where it would not otherwise be required
to qualify but for this Section 6.1(d), (y) subject itself to taxation
in any such jurisdiction or (z) consent to general service of process
in any such jurisdiction;
(e) notify each seller of Registrable Securities at any time when
a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event
as a result of which, the prospectus included in such Registration
Statement contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading, and the Company shall promptly prepare
a supplement or amendment to such prospectus and furnish to each seller
of Registrable Securities a reasonable number of copies of such
supplement to or an amendment of such prospectus as may be necessary so
that, after delivery to the purchasers of such Registrable Securities,
such prospectus shall not contain an 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;
(f) enter into and perform customary agreements (including an
underwriting agreement in customary form with the Approved Underwriter
or Company Underwriter, if any, selected as provided in Article III or
Article IV, as the case may be) and take such other actions as are
prudent and reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities;
(g) make available at reasonable times for inspection by any
seller of Registrable Securities, any managing underwriter
participating in any disposition of such Registrable Securities
pursuant to a Registration Statement, Holders' Counsel and any
attorney, accountant or other agent retained by any such seller or any
managing underwriter (each, an "INSPECTOR" and collectively, the
"INSPECTORS"), all financial and
12
other records, pertinent corporate documents and properties of the
Company and its subsidiaries (collectively, the "RECORDS") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's and its subsidiaries officers,
directors and employees, and the independent public accountants of the
Company, to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement. Records that
the Company determines, in good faith, to be confidential and which it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors (and the Inspectors shall confirm their agreement in writing
in advance to the Company if the Company shall so request) unless (x)
the disclosure of such Records is necessary, in the Company's judgment,
to avoid or correct a misstatement or omission in the Registration
Statement, (y) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction after
exhaustion of all appeals therefrom or (z) the information in such
Records was known to the Inspectors on a non-confidential basis prior
to its disclosure by the Company or has been made generally available
to the public. Each seller of Registrable Securities agrees that it
shall, upon learning that disclosure of such Records is sought in a
court of competent jurisdiction, give notice to the Company and allow
the Company, at the Company's expense, to undertake appropriate action
to prevent disclosure of the Records deemed confidential;
(h) if such sale is pursuant to an underwritten offering, cause
to be delivered "cold comfort" letters dated the effective date of the
registration statement and the date of the closing under the
underwriting agreement from the Company's independent public
accountants in customary form and covering such matters of the type
customarily covered by "cold comfort" letters as Holders' Counsel or
the managing underwriter reasonably requests;
(i) if such sale is pursuant to an underwritten offering, cause
to be furnished, at the request of any seller of Registrable Securities
on the date such securities are delivered to the underwriters for sale
pursuant to such registration or, if such securities are not being sold
through underwriters, on the date the Registration Statement with
respect to such securities becomes effective, an opinion, dated such
date, of counsel representing the Company for the purposes of such
registration, addressed to the underwriters, if any, and to the seller
making such request, covering such legal matters with respect to the
registration in respect of which such opinion is being given as the
underwriters, if any, and such seller may reasonably request and are
customarily included in such opinions;
(j) comply with all applicable rules and regulations of the
Commission, and make available to its security holders, as soon as
reasonably practicable but no later than fifteen (15) months after the
effective date of the Registration Statement, an earnings statement
covering a period of twelve (12) months beginning after the effective
date of the Registration Statement, in a manner which satisfies the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
13
(k) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company
are then listed, PROVIDED that the applicable listing requirements are
satisfied;
(l) keep Holders' Counsel advised in writing as to the initiation
and progress of any registration under Article III or Article IV
hereunder;
(m) cooperate with each seller of Registrable Securities and each
underwriter participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings
required to be made with the NASD;
(n) make officers available to participate in customary road
shows and other informational meetings as reasonably requested by any
Approved Underwriter or Company Underwriter (it being understood that
the Company, in its discretion, may require that there be "road shows"
and other informational meetings in connection with a Demand
Registration); and
(o) take all other steps reasonably necessary to effect the
registration of the Registrable Securities contemplated hereby.
6.2 SELLER INFORMATION. It shall be a condition precedent to the
obligation of the Company to include any Registrable Securities of any
Designated Holder in a Registration Statement pursuant to this Agreement that
the Designated Holder shall furnish to the Company such information regarding
itself, the Registrable Securities held by it, any other securities of the
Company held by it, and the intended method of disposition of such Registrable
Securities as shall be required to effect the registration of the Registrable
Securities held by such Designated Holder, including, without limitation, all
information required to be disclosed in order to make the information previously
furnished to the Company by such Designated Holder not materially misleading or
necessary to cause such Registration Statement not to omit a material fact with
respect to such Designated Holder necessary in order to make the statements
therein not misleading. Any such Information shall be provided to the Company
within any reasonable time period requested by the Company.
(a) Each Designated Holder shall notify the Company, at any time
when a prospectus is required to be delivered under applicable law, of
the happening of any event as a result of which the prospectus included
in the applicable Registration Statement, as then in effect, in each
case only with respect to information provided by such Holder, includes
an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing.
Such Designated Holder shall immediately upon the happening of any such
event cease using such prospectus.
6.3 NOTICE TO DISCONTINUE. Each Designated Holder agrees that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 6.1(e) or 6.2(b), such Designated Holder shall forthwith
discontinue disposition of Registrable Securities pursuant to the Registration
Statement covering such
14
Registrable Securities until such Designated Holder's receipt of the copies of
the supplemented or amended prospectus contemplated by Section 6.1(e) and, if so
directed by the Company, such Designated Holder shall deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in such
Designated Holder's possession, of the prospectus covering such Registrable
Securities which is current at the time of receipt of such notice. If the
Company shall give any such notice, the Company shall extend the period during
which such Registration Statement shall be maintained effective pursuant to this
Agreement (including, without limitation, the period referred to in Section
6.1(b)) by the number of days during the period from and including the date of
the giving of such notice pursuant to Section 6.1(e) to and including the date
when sellers of such Registrable Securities under such Registration Statement
shall have received the copies of the supplemented or amended prospectus
contemplated by and meeting the requirements of Section 6.1(e).
6.4 REGISTRATION EXPENSES. The Company shall pay all expenses arising
from or incident to its performance of, or compliance with, this Agreement,
including, without limitation, (i) Commission, stock exchange and NASD
registration and filing fees, (ii) all fees and expenses incurred in complying
with securities or "blue sky" laws (including reasonable fees, charges and
disbursements of counsel to any underwriter incurred in connection with "blue
sky" qualifications of the Registrable Securities as may be set forth in any
underwriting agreement), (iii) all printing, messenger and delivery expenses,
(iv) the fees, charges and disbursements of counsel to the Company and of its
independent public accountants and any other accounting fees, charges and
expenses incurred by the Company (including, without limitation, any expenses
arising from any "cold comfort" letters or any special audits incident to or
required by any registration or qualification), (v) the reasonable fees, charges
and disbursements of one counsel to all Designated Holders not to exceed $35,000
and (vi) any liability insurance or other premiums for insurance obtained in
connection with any Demand Registration or piggy-back registration thereon or
Incidental Registration pursuant to the terms of this Agreement, regardless of
whether such Registration Statement is declared effective. All of the expenses
described in the preceding sentence of this Section 6.4 are referred to herein
as "REGISTRATION EXPENSES." The Designated Holders of Registrable Securities
sold pursuant to a Registration Statement shall bear the expense of any broker's
commission, underwriter's discount or commission or transfer taxes relating to
registration and sale of such Designated Holders Registrable Securities and,
subject to clause (v) above, shall bear the fees and expenses of their own
counsel.
ARTICLE VII
INDEMNIFICATION; CONTRIBUTION
7.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and
hold harmless each Designated Holder, its partners, directors, officers,
affiliates and each Person who controls (within the meaning of Section 15 of the
Securities Act) such Designated Holder from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation) (each, a
15
LIABILITY" and collectively, "LIABILITIES"), arising out of or based upon any
untrue, or allegedly untrue, statement of a material fact contained in any
Registration Statement, prospectus or preliminary prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading under the circumstances such statements
were made, except insofar as such Liability (i) arises out of or is based upon
any untrue statement or alleged untrue statement or omission or alleged omission
contained in such Registration Statement, preliminary prospectus or final
prospectus in reliance and in conformity with information concerning such
Designated Holder furnished in writing to the Company by such Designated Holder
expressly for use therein, including, without limitation, the information
furnished to the Company pursuant to Section 6.2, or (ii) is caused by any
failure by the Designated Holder to deliver a prospectus or preliminary
prospectus (or amendment or supplement thereto) as and when required under the
Securities Act after such prospectus has been timely furnished by the Company .
The Company shall also provide customary indemnities to any underwriters of the
Registrable Securities, their officers, directors and employees and each Person
who controls such underwriters (within the meaning of Section 15 of the
Securities Act) to the same extent as provided above with respect to the
indemnification of the Designated Holders of Registrable Securities.
7.2 INDEMNIFICATION BY DESIGNATED HOLDERS. Each Designated Holder
agrees to indemnify and hold harmless the Company, any underwriter retained by
the Company, each of their respective officers, directors and affiliates and
each Person who controls the Company or such underwriter (within the meaning of
Section 15 of the Securities Act) to the same extent as the foregoing indemnity
from the Company to the Designated Holders, but only if such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with information with respect to such Designated Holder furnished
in writing to the Company by such Designated Holder expressly for use in such
registration statement or prospectus, including, without limitation, the
information furnished to the Company pursuant to Section 6.2; PROVIDED, HOWEVER,
that the total amount to be indemnified by such Designated Holder pursuant to
Section 6.2 shall be limited to the net proceeds received by such Designated
Holder in the offering to which the Registration Statement or prospectus
relates.
7.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled to
indemnification hereunder (the "INDEMNIFIED PARTY") agrees to give prompt
written notice to the indemnifying party (the "INDEMNIFYING PARTY") after the
receipt by the Indemnified Party of any written notice of the commencement of
any action, suit, proceeding or investigation or threat thereof made in writing
for which the Indemnified Party intends to claim indemnification or contribution
pursuant to this Agreement; PROVIDED, HOWEVER, that the failure so to notify the
Indemnifying Party shall not relieve the Indemnifying Party of any Liability
that it may have to the Indemnified Party hereunder (except to the extent
that the Indemnifying Party is materially prejudiced or otherwise forfeits
substantive rights or defenses by reason of such failure). If notice of
commencement of any such action is given to the Indemnifying Party as above
provided, the Indemnifying
16
Party shall be entitled to participate in and, to the extent it may wish,
jointly with any other Indemnifying Party similarly notified, to assume the
defense of such action at its own expense, with counsel chosen by it and
reasonably satisfactory to such Indemnified Party. The Indemnified Party shall
have the right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel shall be paid by
the Indemnified Party unless (i) the Indemnifying Party agrees to pay the same,
(ii) the Indemnifying Party fails to assume the defense of such action with
counsel reasonably satisfactory to the Indemnified Party or (iii) the named
parties to any such action (including any impleaded parties) include both the
Indemnifying Party and the Indemnified Party and such parties have been advised
by such counsel that either (x) representation of such Indemnified Party and the
Indemnifying Party by the same counsel would be inappropriate under applicable
standards of professional conduct or (y) there may be one or more legal defenses
available to the Indemnified Party which are different from or additional to
those available to the Indemnifying Party. In any of such cases, the
Indemnifying Party shall not have the right to assume the defense of such action
on behalf of such Indemnified Party, it being understood, however, that the
Indemnifying Party shall not be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all
Indemnified Parties. No Indemnifying Party shall be liable for any settlement
entered into without its written consent, which consent shall not be
unreasonably withheld. No Indemnifying Party shall, without the consent of such
Indemnified Party, which consent shall not be unreasonably withheld, effect any
settlement of any pending or threatened proceeding in respect of which such
Indemnified Party is a party and indemnity has been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability for claims that are the subject matter
of such proceeding.
7.4 CONTRIBUTION. If the indemnification provided for in this Article 7
from the Indemnifying Party is unavailable to an Indemnified Party hereunder in
respect of any Liabilities referred to herein, then the Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the amount paid
or payable by such Indemnified Party as a result of such Liabilities in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party and Indemnified Party in connection with the actions which resulted in
such Liabilities, as well as any other relevant equitable considerations. The
relative faults of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the Liabilities referred to above shall be deemed to include, subject
to the limitations set forth in Sections 7.1, 7.2 and 7.3, any legal or other
fees, charges or expenses reasonably incurred by such party in connection with
any investigation or proceeding; PROVIDED that the total amount to be
contributed by such Designated Holder shall be limited to the net proceeds
received by such Designated Holder in the offering.
17
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7.4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
ARTICLE VIII
COVENANTS
8.1 RULE 144. The Company covenants that it shall (a) file any reports
required to be filed by it under the Exchange Act and (b) take such further
action as each Designated Holder of Registrable Securities may reasonably
request (including providing any information necessary to comply with Rule 144
under the Securities Act), all to the extent required from time to time to
enable such Designated Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such rule may be amended
from time to time, or Regulation S under the Securities Act or (ii) any similar
rules or regulations hereafter adopted by the Commission. The Company shall,
upon the request of any Designated Holder of Registrable Securities, deliver to
such Designated Holder a written statement as to whether it has complied with
such requirements.
8.2 ▇▇▇▇▇▇▇▇▇▇▇ AND BLACKSTONE PRIORITY OF SALE. Notwithstanding
anything to the contrary set forth in this Agreement, in the event of any
offering of Common Stock, whether pursuant to a public offering, private
placement or other exempt sale in which Blackstone Holders and/or ▇▇▇▇▇▇▇▇▇▇▇
Holders, on the one hand, and any other stockholder of the Company (including,
without limitation, any Investor), on the other hand, desire or intend to sell
Common Stock, Blackstone Holders and ▇▇▇▇▇▇▇▇▇▇▇ Holders, pro rata based on the
number of shares of Common Stock then owned by each, shall have an absolute
right to sell prior to the right of any other such holder. The foregoing rights
of priority will not preclude the grant by the Company of any demand or
piggyback rights to any other person that do not conflict with the provisions of
this Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 RECAPITALIZATIONS, EXCHANGES, ETC. The provisions of this Agreement
shall apply to the full extent set forth herein with respect to (i) the shares
of Common Stock, (ii) any and all shares of common stock of the Company into
which the shares of Common Stock are converted, exchanged or substituted in any
recapitalization or other capital reorganization by the Company and (iii) any
and all equity securities of
18
the Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in conversion of, in exchange for or in substitution of, the shares of Common
Stock and shall be appropriately adjusted for any stock dividends, splits,
reverse splits, combinations, recapitalizations and the like occurring after the
date hereof. The Company shall cause any successor or assign (whether by merger,
consolidation, sale of assets or otherwise) to enter into a new registration
rights agreement with the Designated Holders on terms substantially the same as
this Agreement as a condition of any such transaction.
9.2 NO INCONSISTENT AGREEMENTS. The Company represents and warrants
that it has not granted to any Person the right to request or require the
Company to register any securities issued by the Company, other than the rights
granted to the Designated Holders herein. The Company shall not enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Designated Holders in this Agreement or grant any additional
registration rights to any Person or with respect to any securities which are
not Registrable Securities which are prior in right to or inconsistent with the
rights granted in this Agreement.
9.3 REMEDIES. The Designated Holders, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, shall be
entitled to specific performance of their rights under this Agreement. The
Company agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive in any action for specific performance the defense
that a remedy at law would be adequate.
9.4 NOTICES. All notices, demands and other communications provided for
or permitted hereunder shall be made in writing and shall be made by telecopier,
courier service or personal delivery:
(a) if to the Company:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, CEO
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. General Counsel
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
19
(b) if to Heartland:
Heartland Industrial Partners, L.P.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: W. ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
20
(c) if to any Blackstone Holders:
Blackstone Capital Partners L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
(d) if to ▇▇▇▇▇▇▇▇▇▇▇:
Wasserstein, Perella Management Partners
1301 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
All such notices, demands and other communications shall be deemed to
have been duly given when delivered by hand, if personally delivered; when
delivered by courier, if delivered by commercial courier service; five (5)
Business Days after being deposited in the mail, postage prepaid, if mailed; and
when receipt is mechanically acknowledged, if telecopied. Any party may by
notice given in accordance with this Section 9.4 designate another address or
Person for receipt of notices hereunder.
9.5 SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. This Agreement
shall inure to the benefit of and be binding upon the successors and permitted
assigns of the parties hereto as hereinafter provided. The Demand Registration
rights and related rights of the Investor Stockholders and Major Stockholders
contained in Article III hereof, shall be with respect to any Registrable
Security that is transferred to a
21
Permitted Transferee of an Investor Stockholder or Major Stockholder,
automatically transferred to such transferee who agrees to be bound hereby. The
incidental or "piggy-back" registration rights of the Designated Holders
contained in Section 3.2 and Article IV hereof and the other rights of each of
the Designated Holders with respect thereto shall be, with respect to any
Registrable Security, automatically transferred to any Person who is the
transferee of such Registrable Security, but only if transferred in compliance
with the Stockholders Agreement. All of the obligations of the Company hereunder
shall survive any such transfer. Any assignment in violation of this Agreement
shall be null and void. Except as provided in Article VII, no Person other than
the parties hereto and their successors and permitted assigns is intended to be
a beneficiary of this Agreement.
9.6 AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given
unless consented to in writing by (i) the Company, (ii) a Majority of the
Investor Stockholders, (iii) a Majority of Blackstone Stockholders and (iii) a
Majority of ▇▇▇▇▇▇▇▇▇▇▇ Stockholders. Any such written consent shall be binding
upon the Company and all of the Designated Holders.
9.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
9.8 HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
9.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF.
9.10 SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
9.11 RULES OF CONSTRUCTION. Unless the context otherwise requires,
references to sections or subsections refer to sections or subsections of this
Agreement.
9.12 ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
representations, warranties or
22
undertakings, other than those set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings among the parties with
respect to such subject matter.
9.13 FURTHER ASSURANCES. Each of the parties shall, and shall cause
their respective Affiliates to, execute such documents and perform such further
acts as may be reasonably required or desirable to carry out or to perform the
provisions of this Agreement.
9.14 OTHER AGREEMENTS. Nothing contained in this Agreement shall be
deemed to be a waiver of, or release from, any obligations any party hereto may
have under, or any restrictions on the transfer of Registrable Securities or
other securities of the Company imposed by, any other agreement including, but
not limited to, the Stock Purchase Agreements or the Stockholders Agreement.
[Remainder of page intentionally left blank]
S-1
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed this Agreement on the date first written above.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
BLACKSTONE CAPITAL PARTNERS L.P.
By: Blackstone Management Associates L.P.,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
BLACKSTONE ADVISORY DIRECTORS PARTNERSHIP L.P.
By: Blackstone Management Associates L.P.,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
BLACKSTONE FAMILY INVESTMENT PARTNERSHIP I L.P.
By: Blackstone Management Associates I L.L.C.,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
Registration Rights Agreement
S-2
BLACKSTONE CAPITAL COMPANY II L.L.C.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇▇▇▇▇▇/C&A HOLDINGS, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Title: President
Registration Rights Agreement
S-3
HEARTLAND INDUSTRIAL PARTNERS, L.P.
By: Heartland Industrial Associates, L.L.C.
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
HEARTLAND INDUSTRIAL PARTNERS (FF), L.P.
By: Heartland Industrial Associates, L.L.C.
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
HEARTLAND INDUSTRIAL PARTNERS (E1), L.P.
By: Heartland Industrial Associates, L.L.C.
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Registration Rights Agreement
S-4
HEARTLAND INDUSTRIAL PARTNERS (K1), L.P.
By: Heartland Industrial Associates, L.L.C.
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
HEARTLAND INDUSTRIAL PARTNERS (C1), L.P.
By: Heartland Industrial Associates, L.L.C.
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
Registration Rights Agreement
SCHEDULE I
INVESTORS
Heartland Industrial Partners (FF), L.P.
Heartland Industrial Partners (E1), L.P.
Heartland Industrial Partners (K1), L.P.
Heartland Industrial Partners (C1), L.P.